NOT FOR PUBLICATION WITHOUT THE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-3809-17T1
DITECH FINANCIAL,
f/k/a GREEN TREE
SERVICING,
Plaintiff-Respondent,
v.
GREGORY M. BORNSTEIN,
Defendant-Appellant.
__________________________
Argued October 13, 2020 - Decided November 18, 2020
Before Judges Currier and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Burlington County, Docket No. F-
031906-14.
Gregory M. Bornstein, appellant, argued the cause pro
se.
Christopher G. Ford argued the cause for respondent
(RAS Citron, LLC, attorneys; Micah C. Pakay, on the
brief).
PER CURIAM
In this residential foreclosure action, defendant Gregory M. Bornstein
appeals from the March 16, 2018 order denying his motion for reconsideration
of a prior order denying his application to vacate judgment. After a review of
defendant's contentions in light of the record and applicable legal principles, we
affirm.
On September 29, 2006, defendant executed an interest-only adjustable
rate note to TBI Mortgage Company. The note was secured by a mortgage held
by Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for TBI
against a residential property in Chesterfield, New Jersey. At the time of this
transaction, defendant owned a property in Plainsboro, New Jersey. He had
procured a line of credit from E*Trade Bank in June 2005 which was secured
by a mortgage on the Plainsboro property.
In March 2011, MERS assigned the mortgage to BAC Home Loans
Servicing, LP formerly known as Countrywide Home Loans Servicing, LP
(Countrywide). In June 2013, Bank of America, as successor by merger to
Countrywide, assigned the mortgage to Green Tree.
Defendant defaulted on his obligations under the note and mortgage in
2010. In 2014, Green Tree filed a complaint for foreclosure for the Chesterfield
property. Defendant filed a contesting answer, asserting various counterclaims.
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Extensive motion practice ensued. Pertinent to this appeal, Green Tree moved
to dismiss defendant's counterclaims and for summary judgment.
Judge Karen L. Suter granted summary judgment to Green Tree, striking
defendant's answer and defenses in a June 24, 2015 order. The order indicated
the motion was "unopposed."
In a twelve-page comprehensive written statement of reasons, Judge Suter
analyzed Green Tree's arguments and considered defendant's counterclaims .
The judge advised that defendant had faxed a letter to the court on the return
date of Green Tree's summary judgment motion. The letter was entitled "motion
for continuance to review and respond to the May 27, 2015 order." 1 The judge
stated that if defendant was attempting to file a motion, it was deficient as
defendant had not paid the required filing fee nor attached a notice of motion
cover page. Nevertheless, although Judge Suter determined the summary
judgment motion unopposed, she considered the substance of defendant's letter,
noting it did not "appear to oppose plaintiff's motion for summary judgment but
rather takes issues with this court's May 27, 2015 order."
1
On May 27, 2015, Judge Suter granted Green Tree's motion to strike
defendant's counterclaims and denied defendant's motion to compel discovery
and add new parties.
A-3809-17T1
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Judge Suter held that Green Tree had established a prima facie right to
foreclosure. She found defendant had not factually supported his arguments that
Green Tree did not have standing and that the assignments of the mortgage were
defective. In addition, defendant did not deny that he executed the note or
defaulted on the loan. Judge Suter further found that defendant's counterclaim
asserting a violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -226, lacked
merit because it was unsupported by any facts and time-barred to the extent it
related to the Bank of America loan. Judge Suter also rejected defendant's
counterclaim asserted under the Truth in Lending Act, (TILA), U.S.C. § 1601-
1693, because defendant had not presented any evidence that Green Tree had
violated the TILA. Moreover, because defendant did not contend he was able
to tender the balance due on his loan, the TILA did not provide a meritorious
defense to foreclosure.
Judge Suter considered numerous other defenses and counterclaims
asserted by defendant not pertinent to this appeal, and found the claims were
unsupported by any facts in the record. Moreover, defendant's claims did not
raise any factual issues to preclude the granting of the summary judgment
motion.
A-3809-17T1
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In July 2015, defendant filed a motion for reconsideration of Judge Suter's
orders. On August 14, 2015, Judge Suter issued an order denying defendant's
motion for reconsideration. In a written statement of reasons, the judge stated
that defendant:
repeats the same arguments, as previously considered
by the court when the court granted [Green Tree]'s
motion to dismiss defendant's counterclaims, and when
the court granted plaintiff's motion [] for summary
judgment, which struck the answer. These arguments
were also previously considered when this court denied
defendant's motion for reconsideration on May 29,
2015.
In September 2015, defendant filed a motion to settle the record. He
argued Judge Suter improperly designated Green Tree's motion for summary
judgment as unopposed and applied the incorrect standard for summary
judgment. Defendant asserted that Green Tree's certifications were evidence of
mortgage fraud, and that Green Tree's motions to strike his defenses and
counterclaims and for summary judgment, as well as Judge Suter's orders
granting those motions were insufficient and lacking in specificity.
On October 23, 2015, a different judge denied defendant's motions. The
judge found defendant did not present any issues regarding the accuracy of the
record, but rather reiterated arguments already considered and rejected in prior
orders.
A-3809-17T1
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In January 2016, the court granted Green Tree's application to substitute
Ditech Financial, its successor in interest, as the plaintiff in this case. The court
granted plaintiff final judgment in October 2017.
On January 2, 2018, defendant filed a motion to "vacate default judgment
and stay sheriff's sale." The motion was considered and denied, after oral
argument, by Judge Kathi F. Fiamingo on February 7, 2018.
In her thorough statement of reasons, Judge Fiamingo determined that
defendant's motion was time-barred under Rule 4:50-2 because he sought to
vacate the June 24, 2015 summary judgment order more than two years after its
entry. In addition, defendant had not presented any reasons to grant relief under
Rule 4:50-1 and vacate the judgment. Judge Fiamingo noted defendant was
reiterating the same arguments considered by Judge Suter when she dismissed
defendant's counterclaims and granted Green Tree's motion for summary
judgment and when she denied reconsideration of her orders.
Judge Fiamingo further held defendant failed to demonstrate he was
entitled to injunctive relief and a stay of the sheriff's sale. She stated that, even
assuming the sale of the Chesterfield property would constitute irreparable
harm, defendant had not demonstrated he had a settled legal right to the
requested relief and a reasonable probability of success on the merits , given the
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rebuff of defendant's arguments by several prior judges on multiple occasions.
The judge also concluded that the balance of equities weighed in favor of
denying defendant's motion.
After defendant moved for reconsideration of the order, Judge Fiamingo
heard oral argument and denied the motion. In her March 16, 2018 order and
accompanying written statement of reasons, Judge Fiamingo found defendant
had not presented anything new to warrant reconsideration. Rather, defendant
again attempted to relitigate the merits of the underlying foreclosure action,
rehashing the same arguments rejected in prior orders.
Before this court, defendant renews his arguments, contending Judge
Fiamingo erred in denying reconsideration of the denial of his motion to vacate
final judgment.
We review a trial court's decision to grant or deny a motion for
reconsideration under an abuse of discretion standard. Cummings v. Bahr, 295
N.J. Super. 374, 389 (App. Div. 1996). Accordingly, "a trial court's
reconsideration decision will be left undisturbed unless it represents a clear
abuse of discretion." Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
N.J. Super. 378, 382 (App. Div. 2015). A court abuses its discretion "when a
decision is 'made without a rational explanation, inexplicably departed from
A-3809-17T1
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established policies, or rested on an impermissible basis.'" Ibid. (quoting Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
We are satisfied that Judge Fiamingo did not abuse her discretion in
denying defendant's motions to vacate the judgment under Rule 4:50-1 and for
reconsideration. First, defendant's motion was untimely. Summary judgment
was granted on June 24, 2015; the court denied the motion for reconsideration
on August 14, 2015. Defendant did not challenge the orders for two and a half
years. Rule 4:50-2 requires a motion brought under Rule 4:50-1 to be made
within a "reasonable time" under the circumstances. Defendant has not
presented any reasons for his failure to contest the summary judgment order for
more than two years.
Moreover, defendant's arguments to vacate the judgment were thoroughly
considered and rejected in several prior orders. Defendant did not present any
reason to vacate judgment other than attempting to relitigate the summary
judgment motion. He did not present anything new in his papers requesting
reconsideration. A careful review of the record reflects that each of the judges
who considered defendant's arguments did so in a thoughtful and well-reasoned
fashion. Therefore, we can discern no abuse of discretion.
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Any arguments not specifically addressed lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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