U.S. BANK NATIONAL ASSOCIATION, ETC. VS. TRACY DECARLO (F-6765-15, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-2606-15T3

U.S. BANK NATIONAL ASSOCIATION,
as Trustee for Asset Backed
Securities Corporation Home
Equity Loan Trust 2003-HE7,
Asset Backed Pass Through
Certificates, Series 2003-HE7,

Plaintiff-Respondent,

v.

TRACY DECARLO,

Defendant-Appellant.
__________________________

Submitted May 23, 2017 - Decided June 23, 2017

Before Judges Gilson and Sapp-Peterson.

On appeal from the Superior Court of New
Jersey, Chancery Division, Ocean County,
Docket No. F-6765-15.

Tracy DeCarlo, appellant pro se.

McGlinchey Stafford, P.L.L.C., attorneys for
respondent (Fincey John and Victor L.
Matthews, on the brief).

PER CURIAM

This appeal arises out of a mortgage foreclosure action.

Defendant Tracy DeCarlo appeals from a February 5, 2016 order
denying her motion to vacate the assignment of the final judgment

of foreclosure, vacate the final judgment of foreclosure, and

dismiss the complaint. We affirm.

The facts and procedural history were established in the

record. In 2003, DeCarlo borrowed $336,000 from New Century

Mortgage Corporation (New Century). In consideration for that

loan, she gave a promissory note and secured the loan through a

mortgage on property located in Jackson, New Jersey.

In 2006, New Century assigned the mortgage to "U.S. Bank

National Association, as Trustee" (U.S. Bank, as Trustee). That

assignment did not identify a specific trust.

In January 2007, defendant ceased making full payments on the

loan and note and, thereafter, she never became current on her

mortgage obligations. In January 2008, U.S. Bank, as Trustee,

filed a foreclosure action. Defendant responded with an answer

and plaintiff moved for and received summary judgment in May 2008.

In January 2009, a final judgment was entered in favor of U.S.

Bank, as Trustee.

Thereafter, defendant filed for Chapter 7 bankruptcy. After

the bankruptcy proceedings were completed, the parties engaged in

mediation and settlement negotiations, but no resolution was

reached.

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 In 2012, defendant filed a motion to vacate the judgment of

foreclosure and dismiss the complaint. Defendant's principal

argument was that U.S. Bank, as Trustee, had failed to identify a

specific trust and, therefore, U.S. Bank, as Trustee, did not have

standing. That motion was denied in March 2012.

In March 2013, a corrected assignment of the mortgage was

executed and the mortgage was assigned to U.S. National Bank

Association as Trustee for Asset-Backed Security Corporation, Home

Equity Loan Trust 2003-HE7, Asset-Backed Pass Through

Certificates, Series 2003-HE7 (U.S. Bank-Trust). Thereafter, U.S.

Bank, as Trustee, filed a motion to substitute U.S. Bank-Trust as

plaintiff. The trial court denied that motion in an order filed

on June 7, 2013 (the June 2013 order). The trial court gave its

reasons on the record, explaining that when defendant had sought

to vacate the judgment in 2012, U.S. Bank, as Trustee, had

contended that it did not need to name a trust. Thus, the trial

court reasoned that U.S. Bank, as Trustee, should not be permitted

to substitute U.S. Bank-Trust as plaintiff.

In September 2015, U.S. Bank, as Trustee, assigned the final

judgment and writ of execution to U.S. Bank-Trust. Thereafter,

on December 11, 2015, in response to an application made by U.S.

Bank, as Trustee, the final judgment of foreclosure was amended

to name U.S. Bank-Trust as plaintiff.

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 In response, in January 2016, defendant filed a motion to

vacate the assignment of the final judgment of foreclosure, vacate

the final judgment, and dismiss the complaint. Defendant argued

that U.S. Bank, as Trustee, had violated the June 2013 order by

filing an assignment of the final judgment. Defendant also argued

that U.S. Bank, as Trustee, lacked standing and, thus, the final

judgment of foreclosure entered in 2009, should be vacated and the

complaint dismissed.

A different judge heard argument on that motion on February

5, 2016, and denied defendant's motion in an order filed the same

day. The trial court explained the reasons for its decision on

the record. The trial court found that the June 2013 order did

not prohibit U.S. Bank, as Trustee, from assigning the final

judgment of foreclosure to U.S. Bank-Trust. In that regard, the

court reasoned that U.S. Bank, as Trustee, properly obtained a

final judgment. Thereafter, U.S. Bank, as Trustee, properly

assigned the final judgment to U.S. Bank-Trust in accordance with

N.J.S.A. 2A:25-1.

Defendant now appeals the February 5, 2016 order denying her

motion to vacate the assignment of the final judgment, vacate the

final judgment, and dismiss the complaint. She argues that she

is entitled to vacate the final judgment under Rule 4:50-1. She

also argues that U.S. Bank, as Trustee, should be collaterally

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estopped and barred by the law of the case doctrine. In essence,

defendant argues that because U.S. Bank, as Trustee, originally

opposed her motion to vacate the final judgment in 2012, by

contending that it did not need to identify a trust, it should not

be allowed to substitute a plaintiff with the specific trust

identified. In connection with that argument, she relies on the

law of the case doctrine contending that the June 2013 order should

preclude U.S. Bank, as Trustee, from naming U.S. Bank-Trust as the

plaintiff.

To succeed on this appeal, defendant must first establish

that she is entitled to relief from the final judgment entered in

2012. Second, she must show that U.S. Bank, as Trustee, did not

have the authority to assign the final judgment to U.S. Bank-

Trust. Defendant cannot establish either basis for relief.

Rule 4:50-1 sets forth the grounds for relief from a final

judgment. That rule authorizes a court to

relieve a party or the party's legal
representative from a final judgment or order
for the following reasons: (a) mistake,
inadvertence, surprise, or excusable neglect;
(b) newly discovered evidence which would
probably alter the judgment or order and which
by due diligence could not have been
discovered in time to move for a new trial
under [Rule] 4:49; (c) fraud (whether
heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
judgment or order is void; (e) the judgment

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 or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.

"The rule 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. Elec. Data Sys. Corp. ex rel.

N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)).

We review a trial court's grant or denial of a Rule 4:50-1

motion with substantial deference and will not reverse it "unless

it results in a clear abuse of discretion." Ibid. "[A]n abuse

of discretion occurs when a decision is 'made without a rational

explanation, inexplicably depart[s] from established policies, or

rest[s] on an impermissible basis.'" Deutsch Bank Trust Co. Ams.

v. Angeles, 428 N.J. Super. 315, 319 (App. Div. 2012) (first

alteration in original) (quoting Guillaume, supra, 209 N.J. at

467-68).

Defendant, who is self-represented on this appeal, does not

specifically identify which subsections of Rule 4:50-1 she relies

on. In her briefs, she refers to subsection (a) mistake, (b)

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newly discovered evidence, and (c) fraud. The record in this

case, however, does not support relief under any subsection of

Rule 4:50-1, including the subsections referenced by defendant.

Fundamentally, defendant is contending that plaintiff does

not have standing to bring an action in foreclosure because it did

not establish that it held the note and mortgage. The undisputed

documents in the record, however, establish that (1) defendant

borrowed $336,000 from New Century and gave a note and mortgage

to secure that loan; (2) New Century assigned the mortgage to U.S.

Bank, as Trustee; (3) defendant defaulted on the loan and mortgage;

and (4) U.S. Bank, as Trustee, obtained a final judgment of

foreclosure in 2009. Thus, there is no dispute that by the time

the final judgment was entered, U.S. Bank, as Trustee, held the

mortgage and had the right to bring the foreclosure action.

Next, we examine the assignment. In 2013, U.S. Bank, as

Trustee, corrected the assignment to reflect that the full name

of the assignee was U.S. Bank-Trust. U.S. Bank, as Trustee, and

U.S. Bank-Trust contend that they are the same entity and the

original assignment inadvertently failed to identify a specific

trust. The documents in the record support that contention. More

fundamentally, there is nothing in this record to show U.S. Bank-

Trust does not hold defendant's mortgage. Thus, U.S. Bank, as

Trustee, had the right and authority to assign its final judgment

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of foreclosure to U.S. Bank-Trust. See N.J.S.A. 2A:25-1 (stating,

"all judgments and decrees recovered in any of the courts of this

State . . . shall be assignable").

Defendant's argument that the order of February 5, 2016, was

inconsistent with the June 2013 order and, thus, violated the law

of the case doctrine does not merit a discussion in a written

opinion. R. 2:11-3(e)(1)(E). We add only the comment that the

June 2013 order was not a final order, and given the procedural

history of this case, did not preclude the entry of the February

5, 2016 order.1

Affirmed.

1
Defendant also filed two motions to supplement the record. We
initially reserved decision on those motions so that we could
review the motions in the full context of the appeal. We now deny
those motions.

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