DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. JUDITH J. SULLIVAN (F-023053-16, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1776-18T1

DEUTSCHE BANK NATIONAL
TRUST COMPANY, AS TRUSTEE
FOR MORGAN STANLEY
MORTGAGE LOAN TRUST
2005-5AR MORTGAGE PASS-
THROUGH CERTIFICATES,
SERIES 2005-5AR,

Plaintiff-Respondent,

v.

JUDITH J. SULLIVAN, a/k/a
JUDITH SULLIVAN and
MR. JUDITH J. SULLIVAN,
her husband,

Defendant-Appellant,

and

BANK OF AMERICA, NA,
RAMAPO RIVER RESERVE
HOMEOWNERS ASSOCIATION,
INC., UNITED STATES OF
AMERICA, CAPASSO PLUMBING
& HEATING, STATE OF NEW
JERSEY, DISCOVER BANK,
and TOBIN & COLLINS, PA,
 Defendants.
_____________________________

Submitted January 8, 2020 – Decided January 23, 2020

Before Judges Mayer and Enright.

On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
F-023053-16.

Judith J. Sullivan, appellant pro se.

Sandelands Eyet LLP, attorneys for respondent
(Suzanne Q. Chamberlin, of counsel and on the brief).

PER CURIAM

In this residential foreclosure action, defendant Judith J. Sullivan appeals

from a November 30, 2018 order denying her motion to vacate final judgment.

Defendant contends the trial court erred in permitting judgment to be entered

prematurely in favor of plaintiff Deutsche Bank National Trust Company , as

Trustee for Morgan Stanley Mortgage Loan Trust 2005-5AR Mortgage Pass-

Through Certificates, Series 2005-5AR (Deutsche Bank), without conducting an

evidentiary hearing regarding the amount due. Defendant also claims the trial

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judge ignored a prior loan modification she had executed in 2008. 1 We find

these claims lacking in merit and affirm.

In April 2005, defendant borrowed $1,095,000 from Countrywide Home

Loans, Inc. and signed a mortgage and note evidencing the debt. The note and

mortgage ultimately were assigned to Deutsche Bank in 2016. In the interim,

defendant's loan was modified by agreement in April 2008. Despite the

negotiated modification, defendant defaulted on the loan in August 2008.

Deutsche Bank asserts defendant has made no payment on her loan since August

2008.

Deutsche Bank filed a foreclosure complaint in 2016 and moved for

summary judgment in 2017. In response to the summary judgment motion,

defendant cross-moved to compel discovery. The trial court granted summary

judgment and struck defendant's answer by order of June 23, 2017. The trial

court explained Deutsche Bank’s predecessor-in-interest had obtained summary

judgment in a prior foreclosure action, so defendant was not permitted to re-

litigate issues previously decided. Moreover, the trial judge found defendant

defaulted on her loan on August 1, 2008 and remained in default. Accordingly,

1
Defendant has asserted she received an additional modification in 2010 but
does not cite to any part of the record in support of that claim.
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Deutsche Bank was allowed to proceed on an uncontested basis before the Clerk

of the Superior Court, Office of Foreclosure. Defendant moved for

reconsideration of this order and requested that plaintiff be compelled to

participate in mediation. Both requests were denied.

Next, Deutsche Bank filed a motion to permit entry of final judgment,

notwithstanding that the 2008 loan modification was not referenced in the

complaint. Defendant objected, arguing plaintiff's complaint made no reference

to the loan modification, but Deutsche Bank countered that her default had

occurred after that modification. Deutsche Bank's motion was granted in

November 2017, and the trial judge observed, "no prejudice will result to

defendant as plaintiff, at the time it seeks final judgment, will need to provide a

schedule of the amount due, demonstrating a proper accounting of the principal

balance, interest charges, and all other expenses owed on the property." The

judge also noted defendant could contest the amount due by making a "specific

challenge."

In November 2017, based on the age of the case, the Office of Foreclosure

held a mediation session, following which defendant was ordered to provide

Deutsche Bank with an itemized list of the specific charges she challenged.

After two unsuccessful sessions, mediation was suspended to allow the parties

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to file motions to resolve the disputed amount due plaintiff and to address other

factual issues.

In May 2018, plaintiff served defendant with a notice to cure her default.

There is no indication in the record that defendant responded to this notice.

Accordingly, Deutsche Bank moved for final judgment, advising defendant she

had ten days within which to file any opposition or objection. No timely

objection was received and on June 14, 2018, final judgment was entered in

plaintiff's favor in the sum of $1,962,729.75. No appeal was taken from this

order.

On June 26, 2018, defendant belatedly filed an objection with the Office

of Foreclosure, challenging the amount due plaintiff. Nearly one month later,

she filed a motion to vacate judgment. Relying on Rules 4:50-1 and 4:64-1,

defendant claimed plaintiff proceeded in bad faith, that plaintiff was not the

holder of the loan, and the principal amount and interest due under the loan was

calculated incorrectly. She also contested the additional fees imposed and

asserted the affidavit of the amount due was "inadmissible hearsay." Moreover,

she certified she was "confused" by the myriad of corrections, refilings and

withdrawals of pleadings at the end of the litigation, stating, "[w]hether the court

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calls it excusable neglect, mistake or inadvertence, I demonstrate I was unsure

about what was happening."

The trial court heard oral argument on defendant's motion to vacate.

Notwithstanding the many opportunities afforded to her throughout the case, the

trial court permitted defendant to further discuss the calculation of the amount

due to Deutsche Bank. Plaintiff maintained its calculations were correct, with

the possible exception of one "line item." On that item, however, plaintiff

acknowledged it would not expend additional time and expense to prove

defendant owed about $44,000 in contested fees.

Ultimately, defendant did not outline any specific objections to the

remainder of what plaintiff claimed she owed Deutsche Bank. Instead, her

attorney conceded he did not have "full proofs" to demonstrate certain figures

provided by plaintiff were wrong. The trial court interjected that "today is the

day for proofs."

After defendant's attorney admitted his proofs were insufficient, he

discussed the general difficulties facing property owners when banks mistakenly

calculate the amount owed on a loan. Defendant's attorney suggested the remedy

for the banking industry's "symptomatic [ ] cloud on the entire [foreclosure]

process was to vacate [Deutsche Bank's] final judgment." The motion judge

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rejected this suggestion. The judge found plaintiff provided the requested

supplemental accounting for the amount owed on the mortgage, whereas

defendant offered no proofs in opposition to Deutsche Bank's calculations and

did not object to the amount due when plaintiff applied for final judgment.

Accordingly, the judge denied defendant's motion to vacate, triggering the

instant appeal.

Rule 4:50–1 is "designed to reconcile the strong interests in finality of

judgments and judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case." U.S. Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini v. EDS, 132 N.J.

330, 334 (1993)). A decision to vacate a judgment lies within the sound

discretion of the trial judge, guided by principles of equity. Housing Auth. of

Town of Morristown v. Little, 135 N.J. 274, 283 (1994).

Motions to vacate a judgment under Rule 4:50-1 are granted sparingly and

reviewed by appellate courts under an abuse of discretion standard. Guillaume,

209 N.J. at 467. A trial court abuses its discretion if a decision lacks "rational

explanation," "represents an inexplicable departure from established policies,"

or rests on "an impermissible basis." Ibid.

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 Here, we perceive no basis to disturb the trial judge's denial of defendant's

motion to vacate, particularly since she did not advance any meritorious

defenses to the foreclosure action. The trial judge properly found defendant

failed to demonstrate mistake, inadvertence, surprise, or excusable neglect under

Rule 4:50-1(a). We note "excusable neglect" does not include confusion over

communications regarding a loan modification, especially when there have been

repeated notices regarding an ongoing foreclosure action. Guillaume, 209 N.J.

at 468-69. The trial judge also properly found defendant did not establish any

other basis for relief under Rule 4:50-1, including the existence of exceptional

circumstances. R. 4:50-1(f). Even defendant's renewed hearsay objection, much

like the hearsay objection addressed in the June 23, 2017 order, does not provide

a foundation for a finding of "exceptional circumstances" under Rule 4:50-1(f).

Guillaume, 209 N.J. at 468.

Defendant also asserts she was entitled to relief because she received

insufficient notice before the court entered final judgment. This argument lacks

merit. Rule 4:64-1(d)(4) requires ten days' notice before a court may enter final

judgment if there are no other encumbrancers and thirty days' notice if there are

other encumbrancers. Defendant maintains she received only ten days' notice

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but was entitled to thirty days' notice due to the existence of other

encumbrancers. However, she provided no proof of other encumbrancers.

Defendant further contends the trial court erred when it did not afford her

an evidentiary hearing on her motion to vacate. We are not persuaded. The

need for such a hearing arises when a defendant timely objects to the entry of

final judgment. The record confirms defendant did not timely object to the entry

of final judgment, although she had enough time before final judgment was

entered to specifically challenge Deutsche Bank's calculation of the amount due.

Again, the trial court made clear in the June 23, 2017 summary judgment ruling

that defendant would not be prejudiced by the decision because she still could

raise specific challenges to the bank's calculations. However, defendant did not

advance any specific challenges to Deutsche Bank's calculations and her

attorney conceded during argument on the motion to vacate that defendant's

proofs were insufficient. Under these circumstances, no evidentiary hearing was

required.

The remainder of defendant's arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)E.

Affirmed.

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