BANK OF AMERICA, N.A. VS. VIOLA STEPHENS (F-048329-13, 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NOT FOR PUBLICATION WITHOUT THE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-1638-18

BANK OF AMERICA, N.A.,

Plaintiff-Respondent,

v.

VIOLA STEPHENS,

Defendant-Appellant.
_________________________

Argued June 8, 2021 – Decided July 6, 2021

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No. F-
048329-13.

Marc Stephens argued the cause pro se.

Robert D. Bailey argued the cause for respondent
(Parker Ibrahim & Berg LLP, attorneys; Charles W.
Miller, III, Brian A. Turetsky, and Robert D. Bailey, on
the brief).

PER CURIAM
 In this residential mortgage foreclosure action, defendant Viola Stephens

appeals from three Law Division orders: 1) a November 2, 2018 order denying

her motion for reconsideration of a June 1, 2018 order that rejected her

application to vacate an entry of default in favor of plaintiff Bank of America,

N.A.; 2) a September 13, 2019 order that denied her motion for reconsideration

of an April 1, 2019 order 1 that rejected her application to vacate the November

20, 2018 final judgment; and 3) the April 1, 2019 order. 2 On appeal, defendant

claims that the court's decisions in denying the aforementioned applications

1
In an accompanying "rider" the court noted that "[a]lthough defendant's
motion is captioned as a [m]otion to [v]acate [j]udgment and for a [s]tay
[p]ending [a]ppeal, it essentially is a [m]otion for [r]econsideration, as well as a
request for a [s]tay [p]ending [a]ppeal."
2
Defendant's initial and amended notices of appeal do not specifically list the
November 20, 2018 final judgment. In certain circumstances, we may exercise
our discretion to review such a conclusive order if the defendant's Case
Information Statement (CIS) "makes clear that this is a matter in which the
motion for reconsideration implicates the substantive issues underlying the order
for judgment," Tara Enters. v. Daribar Management Corp., 369 N.J. Super. 45,
60 (App. Div. 2004), or if "'the basis for the motion judge's ruling on the
[original] and reconsideration motions was the same.'" Potomac Aviation, LLC
v. Port Auth., 413 N.J. Super. 212, 222 (App. Div. 2010) (quoting Fusco v. Bd.
of Educ., 349 N.J. Super. 455, 461 (App. Div. 2002)). Here, defendant's CIS
related to her appeal of the September 13, 2019 order specifically stated she was
appealing the "[e]ntire [j]udgment." Accordingly, we consider the November
20, 2018 final judgment in our review.
A-1638-18
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were both procedurally improper and substantively erroneous. For the following

reasons, we remand for further proceedings.

I.

We glean the following facts and procedural history from the pleadings

and motion record. On April 23, 2009, defendant executed a note promising to

repay, with applicable interest, all funds that plaintiff advanced to her up to a

maximum amount of $615,000. To secure repayment, defendant also executed

a reverse mortgage on her home in Englewood. Plaintiff subsequently assigned

the mortgage to Champion Mortgage Company in 2012.

The note included an acceleration clause providing that plaintiff "may

require immediate payment-in-full of all outstanding principal and accrued

interest if . . . [a]n obligation of the [b]orrower under the [s]ecurity [i]nstrument

is not performed." A separate provision in the mortgage required defendant to

"pay all property charges . . . [including] taxes."

After defendant failed to pay her real estate taxes, Champion sent her a

"Mortgage Due & Payable Notification" letter on August 12, 2013, by certified

mail. In that correspondence, Champion informed defendant that "the reverse

mortgage is technically in default due to the non-payment of taxes and/or

insurance on the principal residence."

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 Defendant failed to cure the default. As a result, Champion filed a

foreclosure complaint against her and other interested parties on December 24,

2013. The motion record indicates that defendant was served with the complaint

by certified mail on an unspecified date and that her son, Marc Stephens,3 was

personally served on April 17, 2014.

On March 25, 2014, defendant attempted to file an answer signed by Marc,

who characterized himself as defendant's "attorney[-]in[-]fact." The court

rejected defendant's answer because she failed to pay the required filing fee.

On July 14, 2014, the court granted defendant's request for a filing fee

waiver. Subsequently, defendant filed a motion to vacate default. The court

denied the application on September 3, 2014, and entered a letter order which

stated:

A motion to vacate default was filed by or on behalf of
Viola Stephens on August 7, 2014[,] and was opposed
by . . . [Champion] on August 11, 2014. The motion is
presently scheduled for September 5, 2014.

No default has yet been entered against Viola Stephens.
Accordingly, no motion to vacate is necessary and same
shall be deemed withdrawn.

3
We utilize the parties' first names in order to differentiate them because they
share a common surname, intending no disrespect.
A-1638-18
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 Viola Stephens shall file with the court an [a]nswer to
the [f]oreclosure [c]omplaint and serve a copy upon the
plaintiff not later than October 3, 2014.

It does not appear that defendant filed an answer by October 3, 2014. In

an October 13, 2015 notice from the Superior Court Clerk's Office, titled "Notice

of Foreclosure Processing Deficiency," Marc was advised that "[his] pleading

[was] marked '[r]eceived but [n]ot [f]iled'" pursuant to [Rule] 1:5-6(c), because

a $50 filing fee was not paid. The notice also informed Marc that the case was

dismissed on August 28, 2015, and a motion was required to reinstate the matter.

The record on appeal does not contain an explanation for the August 28 , 2015

dismissal.

Despite the October 13, 2015 notice indicating the matter was dismissed,

on October 20, 2015, the court granted Champion's request for an entry of

default against defendant. In a letter accompanying the order, the court advised

Marc and Champion's counsel that "only attorneys at law may represent a litigant

in court, a [p]ower of [a]ttorney is insufficient."

On October 25, 2016, Champion re-assigned the mortgage back to

plaintiff. Bank of America, however, was not substituted as plaintiff and the

court dismissed the complaint on November 25, 2016, without prejudice under

Rule 4:64-8 due to Champion's failure to prosecute.

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 On October 4, 2017, Marc emailed Champion's counsel to inquire about a

September 1, 2017 letter he received informing him that the Englewood property

was in foreclosure. Marc noted that he was unaware "of any current foreclosure

proceeding, and [that he] was not properly served." He further explained that

Reverse Mortgage Solutions, plaintiff's loan servicer, forwarded him a check for

roof repairs on March 23, 2017.

As best we discern from the record, based on the October 4, 2017

communication, defendant believed the case was re-opened a year after its

dismissal. Accordingly, on October 23, 2017, Marc, on behalf of defendant,

filed a motion to vacate the entry of default which appended an amended answer,

with counterclaims, signed by defendant and himself. On December 13, 2017,

the court issued another letter order rejecting defendant's motion. Specifically,

the court stated:

The case is presently dismissed[,] therefore the motion
is dismissed as premature. A motion to vacate the
dismissal would have to be filed and granted for
defendant[']s[] motion to be ripe.

On January 22, 2018, the court granted Champion's motion to reinstate

and entered a February 28, 2018 order substituting Bank of America as plaintiff.

Thereafter, on March 28, 2018, plaintiff moved for final judgment. While that

motion was pending, and before final judgment was entered, defendant moved

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to "[v]acate [f]inal [j]udgment and [w]rit of [e]xecution." As best we can

discern, defendant's application sought to vacate the entry of default, as the court

had not entered a final judgment or a writ of execution.

On June 1, 2018, the court denied defendant's motion. The order noted

that the motion was denied "for the reasons set forth [on June 1, 2018]." The

appellate record does not include a copy of the court's Rule 1:6-2(f) statement

of reasons supporting the June 1, 2018 order.

Defendant subsequently filed a motion for reconsideration of the June 1,

2018 order. During oral arguments on the motion for reconsideration, the court

observed that Marc did not have power of attorney to represent defendant. The

court noted that a "declaration" defendant executed granting power of attorney

to Marc only pertained to the proceedings related to the June 1, 2018 motion. It

further explained that although Marc did not "have any authority" to represent

defendant in the present matter, it nevertheless agreed to permit him to

participate in oral argument.

The court ordered Marc to provide "any and all documentation that [he

had] giving [him] authority to proceed on . . . [defendant's] behalf" by October

4, 2018. The court further clarified that "authority" meant "power of attorney ,"

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and that if nothing was submitted by the October 4, 2018 deadline, it would

"simply respond to the motion in whatever way [it] deem[ed] fit at that time."

On November 2, 2018, the court denied defendant's motion for failure to

"provide any additional evidence or arguments that would merit

reconsideration." In its accompanying written statement of reasons, the court

noted that it allowed Marc to represent defendant because he "[s]ubmitted

additional papers certifying that [d]efendant . . . had appointed [him] as her

attorney-in-fact."

On November 20, 2018, the court entered an uncontested final judgment

in the amount of $479,922.75 and ordered a sheriff's sale of the property.4

Defendant appealed from the November 2, 2018 order and while the appeal was

pending, filed two motions to vacate final judgment and stay the sheriff's sale.

The court denied both motions on April 1, 2019.

A week later, on April 8, 2019, defendant filed a motion to "stay . . . all

foreclosure proceedings pending appeal," and plaintiff subsequently cross-

moved for attorney's fees. On July 12, 2019, the court denied both motions.

4
Plaintiff's counsel advised us during oral argument that the property has not
yet proceeded to sheriff's sale.
A-1638-18
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 Defendant then filed a motion for reconsideration of the April 1, 2019,

order which the court denied on September 13, 2019. In support of its decision,

the court stated:

Here, defendant has failed to shoulder the heavy
burden attendant injunctive relief. Most significantly,
the defendant has very little, if any, likelihood of
success on the merits, given the fact that three prior
motions requesting the same relief have been denied.
Further, the appeal at bar does not present a meritorious
issue. In addition, an assessment of the relative
hardship to the parties reveals that the equities lie in
favor of plaintiff.

This appeal followed in which defendant asserts that the court improperly

failed to vacate the October 20, 2015 default and November 20, 2018 final

judgment. Defendant contends that she filed a timely answer to the foreclosure

complaint and substantially complied with all applicable court rules.

Defendant also argues that the orders under review should be reversed

because plaintiff failed to: 1) provide competent evidence establishing the

amount due on the mortgage loan; 2) establish standing to prosecute the

foreclosure action as it was not in possession of the underlying note; and 3)

properly serve its notice of intention to foreclose.

Further, defendant maintains that she was not in default under the note

and the court incorrectly failed to conclude that plaintiff's enforcement of the

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note was time barred. Finally, defendant maintains that the court violated her

Fifth Amendment right to due process and Seventh Amendment right to a jury

trial.

II.

We begin our analysis with a discussion of the relevant standards of

review. Our standard of review of an order denying reconsideration is

deferential. "Motions for reconsideration are governed by Rule 4:49-2, which

provides that the decision to grant or deny a motion for reconsideration rests

within the sound discretion of the trial court." Pitney Bowes Bank, Inc. v. ABC

Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015). Reconsideration

"is not appropriate merely because a litigant is dissatisfied with a decision of the

court or wishes to reargue a motion." Palombi v. Palombi, 414 N.J. Super. 274,

288 (App. Div. 2010). Rather, reconsideration

should be utilized only for those cases which fall into
that narrow corridor in which either 1) the [c]ourt has
expressed its decision based upon a palpably incorrect
or irrational basis, or 2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the
significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392,
401 (Ch. Div. 1990)).]

A-1638-18
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Thus, we will not disturb a trial judge's denial of a motion for reconsideration

absent "a clear abuse of discretion." Pitney Bowes Bank, Inc., 440 N.J. Super.

at 382 (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). 5

We apply a similar standard of review with respect to a court's denial of a

motion to vacate an entry of default. See U.S. Bank Nat'l Ass'n v. Guillaume,

209 N.J. 449, 467 (2012). Pursuant to Rule 4:43-3, a court may vacate the entry

of default upon "good cause shown." A motion to vacate an entry of default is

afforded a more liberal standard than a motion to vacate a default judgment.

Indeed, "the requirements for setting aside a default under Rule 4:43-3 are less

stringent than . . . those for setting aside an entry of default judgment under Rule

4:50-1." N.J. Mfrs. Ins. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, 360

(App. Div. 2009). "[G]ood cause . . . requires the exercise of sound discretion

by the court in light of the facts and circumstances of the particular case."

O'Connor v. Altus, 67 N.J. 106, 129 (1975) (citation omitted).

In considering whether good cause exists, courts generally consider the

movant's "absence of any contumacious conduct" and the presence of a

5
Reconsideration of an interlocutory order, however, requires a less stringent
showing than reconsideration of a final order. Indeed, we recently concluded
that "[u]ntil entry of final judgment, only 'sound discretion' and the 'interest of
justice' guides the trial court." Lawson v. Dewar, ___ N.J. Super. ___ (App.
Div. 2021) (slip op. at 7).
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meritorious defense. Ibid. In particular, "the showing of a meritorious defense

is a traditional element necessary for setting aside both a default and a default

judgment." Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:43-3

(2021); see also O'Connor, 67 N.J. at 129 (finding "good cause" under Rule

4:43-3 includes "the presence of a meritorious defense"). As with a motion to

vacate a default judgment, there is no point in setting aside an entry of default

if the defendant has no meritorious defense. "The time of the courts, counsel

and litigants should not be taken up by such a futile proceeding." Guillaume,

209 N.J. at 469 (citation omitted). We have noted:

This is especially so in a foreclosure case where the
mere denominating of the matter as a contested case
moves it from the expeditious disposition by the Office
of Foreclosure in the Administrative Office of the
Courts, R. 1:34-6 and R. 4:64-1(a), to a more protracted
treatment by the Chancery Division providing
discovery and raising other problems associated with
trial calendars. If there is no bona fide contest, a
secured creditor should have prompt recourse to its
collateral.

[Trs. of Local 478 Trucking & Allied Indus. Pension
Fund v. Baron Holding Corp., 224 N.J. Super. 485, 489
(App. Div. 1988).]

Here, we are unable to determine if the court properly exercised its

discretion in entering the orders under review, because the record does not

include the court's reasoning for the June 1, 2018 order denying defendant's

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motion to vacate entry of default. Neither party has provided us with a copy of

the court's factual findings and legal conclusion related to that order, and despite

our independent efforts, we were unable to find any record of an oral or written

decision.6

That omission is not insignificant. The court's June 1, 2018 decision

formed the basis for the court's decision preventing the matter from being

decided on the merits. It also was the necessary precondition for final judgment

and was relied upon by the court when it denied defendant's subsequent motions

for reconsideration.

Nor were we able to discern from the court's subsequent orders denying

reconsideration and attendant statements of reasons, the foundation for the

court's underlying decision as to whether defendant acted contumaciously or

failed to establish a meritorious defense. Specifically, we cannot determine if

the court considered, in the context of a Rule 4:43-3 motion to vacate, that for

significant periods, defendant was under the reasonable belief that plaintiff's

foreclosure complaint was dismissed or not actively prosecuted.

6
Although we acknowledge defendant had an affirmative obligation under Rule
2:6-1 to include the accompanying statement of reasons for the June 1, 2018
order, we will not penalize defendant for failing to discover a record that does
not appear to exist.
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 For example, the court's September 3, 2014 letter informed defendant that

default had not been entered against Viola. The case remained dormant for

approximately thirteen months until the October 20, 2015 entry of default. Prior

to the court entering default, however, Marc was apparently advised by the

Clerk's Office that the case had been dismissed on August 28, 2015.

After default was entered, Champion took no further action for another

year, resulting in the November 25, 2016 order dismissing the action for lack of

prosecution. Defendant had no reason to believe the case was ongoing until he

received the September 1, 2017 letter indicating that the property was in

foreclosure. In response, defendant filed a motion to vacate default, and was

again informed, on December 13, 2017, that the case was dismissed, and an

application needed to be filed to reinstate the matter.

Similarly, without factual findings and legal conclusions, we cannot

determine what significance the court gave to the fact that at the time the June

1, 2018 order was entered, defendant had apparently filed, as an attachment to

her October 23, 2017 motion to vacate, an amended answer with counterclaims.

Likewise, we are unable to evaluate what significance, if any, the court gave to

defendant's failure to comply with its September 3, 2014 order directing that an

answer be filed by October 3, 2014, particularly in light of the November 25,

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2016 dismissal. Finally, as noted, we cannot on the current record evaluate the

sufficiency of the court's apparent conclusion that defendant failed to establish

a meritorious defense to the foreclosure action

III.

In the face of this incomplete record, plaintiff asks us to affirm the orders

under review by arguing defendant failed to establish a meritorious defense to

the foreclosure action. In making this argument, plaintiff essentially requests us

to exercise original jurisdiction to make factual findings supporting the June 1,

2018 order, November 20, 2018 final judgment, and the November 2, 2018,

April 1, 2019, and September 13, 2019 orders denying defendant's motions for

reconsideration. We decline to do so.

Rule 2:10-5 provides that "[t]he appellate court may exercise such original

jurisdiction as is necessary to the complete determination of any matter on

review." See also N.J. Const. art. VI, § 5, ¶ 3. "However, [this Court's] 'original

factfinding authority must be exercised only with great frugality and in none but

a clear case free of doubt.'" Allstate Ins. v. Fisher, 408 N.J. Super. 289, 301

(App. Div. 2009) (quoting Tomaino v. Burman, 364 N.J. Super. 224, 234-35

(App. Div. 2003)). "In determining whether to exercise original jurisdiction, an

appellate court not only must weigh considerations of efficiency and the public

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interest that militate in favor of bringing a dispute to a conclusion, but also must

evaluate whether the record is adequate to permit the court to conduct its

review." Price v. Himeji, LLC, 214 N.J. 263, 295 (2013).

An appellate court may "exercise original jurisdiction to eliminate

unnecessary further litigation," but it is "discourage[d] . . . if factfinding is

involved." Id. at 294 (quoting State v. Santos, 210 N.J. 129, 142 (2012)). We

do not "'weigh[ ] evidence anew and mak[e] independent factual findings; rather,

our function is to determine whether there is adequate evidence to support the

judgment rendered' by the trial court." Fisher, 408 N.J. Super. at 302 (quoting

Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347 (App. Div.

1999)).

For the reasons previously expressed, it would be inappropriate for the

court to exercise its original jurisdiction here because the record is inadequate

"to permit the court to conduct its review." Price, 214 N.J. at 295. By way of

example only, the record does not contain the complete certifications of

plaintiff's representatives establishing whether it complied with all procedural

requirements, and accurately calculated the amount due. In this regard, the

record only contains two partial, one-page certifications from 2017 and 2018

from plaintiff's loan servicer related to the amount due. Further, the note,

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mortgage, and assignment were appended to the appellate record without the

underlying certifications that were submitted to the court and assumedly based

on personal knowledge as required by Rule 1:6-6.

IV.

In light of our decision to remand this matter, we discuss a separate

procedural irregularity which permeated the proceedings and should not be

repeated on remand. Specifically, it appears that the court allowed Marc to

represent defendant despite acknowledging that he had no authority to do so.

Indeed, in the court's October 20, 2015 letter, it specifically noted a power of

attorney was insufficient to confer authority to represent a party. The court also

addressed Marc's status at the September 18, 2018 hearing and despite

recognizing that he was not an attorney, or otherwise authorized to represent his

mother's interests, nevertheless permitted him to submit additional

documentation establishing his power of attorney.

Finally, the court in its November 2, 2018 order, apparently relaxed Rule

1:21-1, and noted that Marc "submit[ted] additional papers certifying that

[d]efendant . . . had appointed [him] as her attorney-in-fact." In doing so, the

court again permitted Marc to argue on behalf of defendant. Marc's apparent

appointment as "attorney-in-fact," however, did not authorize him to practice

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law, as an "attorney-in-fact" is not an attorney-at-law. See, In re Opinion 50, A

Nonlawyer Who Holds a Power of Attorney May Not Engage in the Practice of

Law, 211 N.J.L.J. 866 (March 12, 2013).

V.

In sum, we remand for the court to issue factual findings and legal

conclusions with respect to the court's June 1, 2018 order. Nothing in our

opinion should be interpreted as an expression of our views as to the outcome

of the remanded proceedings. On remand, Marc is precluded from representing

defendant's interests. Defendant shall either appear pro se or retain counsel. We

do not retain jurisdiction.

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