WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC. VS. GLORIA ROMAN, ETC. (F-036552-18, ATLANTIC COUNTY AND STATEWIDE)

W
                                NOT FOR PUBLICATION WITHOUT THE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-2481-19

WILMINGTON SAVINGS
FUND SOCIETY, FSB, as
trustee for STANWICH
MORTGAGE LOAN TRUST A,

          Plaintiff-Respondent,

v.

GLORIA ROMAN, deceased,
his/her heirs, devisees and
personal representatives, and his,
her, their or any of their successors
in right, title and interest,

          Defendant-Appellant,

and

STATE OF NEW JERSEY and
UNITED STATES OF AMERICA,

     Defendants.
_____________________________

                   Submitted March 16, 2021 – Decided April 7, 2021

                   Before Judges Fisher and Moynihan.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Atlantic County, Docket No.
            F-036552-15.

            Richard Angueira, appellant pro se.

            KML Law Group, P.C., attorneys for respondent
            (Kristina G. Murtha and J. Eric Kishbaugh, on the
            brief).

PER CURIAM

      Richard Angueira appeals an order denying his motion to vacate a final

judgment of foreclosure. Because we agree the procedure that produced the

final judgment was flawed, we reverse the order denying Angueira's Rule 4:50

motion, vacate the final judgment, and remand for further proceedings.

      The record reveals that, in 2004, Gloria Roman obtained a $130,000 loan

from First Magnus Financial Corporation; she secured the loan's repayment by

executing a mortgage on her Pleasantville home in favor of First Magnus's

nominee, Mortgage Electronic Registration Systems, Inc. (MERS).            The

mortgage was duly recorded.      In 2006, MERS assigned the mortgage to

Countrywide Home Loans, Inc. In 2014, Countrywide assigned the mortgage to

Ocwen Loan Servicing, LLC, and a year later, Ocwen assigned the mortgage to

plaintiff. All these assignments were recorded.




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      Gloria Roman defaulted on the loan in October 2005, and no payments

have since been made on her behalf. This foreclosure action was commenced in

2015, approximately ten years after the default. The action was dismissed for

lack of prosecution in January 2018 but reinstated five months later.

      Gloria Roman died on September 8, 2018. In March 2019, plaintiff filed

an amended complaint, which alleged Gloria Roman's death and her ownership

of the property at the time of death. By way of the amended complaint, plaintiff

sought to foreclose the rights and interests in the property of "Gloria Roman,

deceased, his/her heirs, devisees and personal representatives and his, her, their

or any of their successors in right, title and interest."

      Richard Angueira moved in May 2019 for an extension of the time to

respond to the amended complaint, referring to himself in his pro se motion

papers as the "new defendant." The judge granted the motion, stating in his June

24, 2019 order that "defendant's request for an extension in which to file an

answer is granted[, and] an answer must be filed within 30 days from the date

of this order."    On July 22, 2019, Angueira filed a motion to dismiss.

Apparently, the clerk's office found some deficiency in his pro se motion that

was promptly cured. Then, on August 9, 2019 – before Angueira's motion to

dismiss could be heard – plaintiff moved for the entry of final judgment.


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        In moving to dismiss, Angueira argued that plaintiff lacked standing,

failed to comply with those parts of Rule 4:64-4 regarding the need to plead

acceleration with specificity, and failed to comply with the Fair Foreclosure Act,

N.J.S.A. 2A:50-53 to -68. By way of his August 30, 2019 order, which was

accompanied by a written decision, the judge denied Angueira's motion to

dismiss.

        Despite Angueira's opposition, plaintiff's motion for entry of a final

judgment by default was granted and judgment was entered on September 3,

2019.      Defendant attempted to file a timely answer to the complaint on

September 9, 2019, 1 but the clerk refused to file the answer because judgment

had already been entered.

        Angueira moved to vacate the default judgment in January 2020. The

motion was denied by the chancery judge the following month for reasons

briefly stated in an oral decision.

        Angueira appeals the denial of his Rule 4:50 motion, arguing:

              I. TRIAL COURT ERRED IN DENYING
              DEFENDANT THE RIGHT TO FILE A MOTION TO
              DISMISS BEFORE FILING FORMAL ANSWER.



1
 Rule 4:6-1(b)(1) fixes ten days as the time within which a party must file an
answer after a denial of a Rule 4:6-2 motion to dismiss.
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            II. TRIAL COURT ERRED IN FAILING TO
            ACKNOWLEDGE     THAT   NO   DEFAULT
            JUDGMENT WAS EVER ENTERED AGAINST
            DEFENDANT CONCERNING THE AMENDED
            COMPLAINT.

Because we agree with the argument that the procedure resulting in the judgment

of foreclosure was defective, we need not reach Angueira's second point.2

      As noted during our brief discussion of this case's procedural history,

Angueira appeared in the action and moved for time to respond to the complaint

and was granted a thirty-day extension. Before filing an answer, Angueira

submitted a motion to dismiss within that time frame; although it was deficient

for some reason, that deficiency was readily cured. Despite the pendency of this

motion, plaintiff filed a motion with the Office of Foreclosure seeking entry of

final judgment.   That motion should never have been submitted, let alone

entertained. Angueira was not in default; he had appeared in the case by moving

for an extension, then by moving to dismiss, and finally by submitting for filing

– within ten days of the dismissal motion's denial, as permitted by Rule 4:6-




2
 As to this second issue, we would note that it appears Angueira was never
named as a defendant even though the record reveals he was named in Gloria
Roman's Last Will and Testament as her personal representative and was duly
appointed to that position by the Atlantic County Surrogate's Court.
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1(b)(1) – an answer to the complaint. His answer was rejected only because

plaintiff had managed to obtain – in the interim – a default judgment.

      In denying Angueira's Rule 4:50 motion, the judge relied on the fact that

his June 24, 2019 order permitted only a thirty-day extension to answer the

complaint, not to move to dismiss it. We reject this. That may be what the

words of the order say but there is nothing in the record to suggest that the judge

intended to deprive Angueira of every litigant's right to move to dismiss before

answering. Indeed, if that was the judge's intention, one can only wonder why

he denied the dismissal motion on its merits and not because the judge believed

Angueira had no right to file the motion and was in default for not filing an

answer within thirty days of the June 24 order.

      The chancery judge also denied the Rule 4:50 motion because "[t]his is a

situation where a default on the loan occurred in October 1, 2005" and for "14

years defendant has not made a payment and the plaintiff has paid taxes and

insurance." This observation, even if true, overlooks the fact that the mortgage

holder and its successors took no steps to assert its rights for ten years, and then

– once filing suit – apparently did nothing for another three years. Even if these

passages of time have some bearing on the court's Rule 4:50 motion decision,

they should fall on plaintiff's side of the ledger, not Angueira's. We fail to see


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how plaintiff's inaction should somehow excuse plaintiff's procedural error in

seeking a default judgment knowing that Angueira had appeared and was

attempting to assert any rights he may have had in responding to this complaint.

Moreover, the judge should have liberally indulged Angueira's motion rather

than plaintiff's opposition and, in failing to do so, turned the applicable standard

topsy-turvy. See Marder v. Realty Constr. Co., 

84 N.J. Super. 313

, 318-19 (App.

Div.) (holding that "the opening of default judgments should be viewed with

greater liberality, and every reasonable ground for indulgence is tolerated to the

end that a just result is reached"), aff'd, 

43 N.J. 508

(1964).

      The judge abused his discretion in denying Angueira's motion to vacate.

That motion should have been granted and the judge should have vacated the

default judgment and allowed Angueira's answer to be filed.

      Reversed and remanded for the entry of an order that both vacates the final

judgment of foreclosure and allows Angueira's answer to be filed. We do not

retain jurisdiction.




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