THE BANK OF NEW YORK MELLON, ETC. v. DEBORAH J. COCCHI (F-031338-16, PASSAIC COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-3359-20
THE BANK OF NEW YORK
MELLON, f/k/a THE BANK OF
NEW YORK as trustee for the
benefit of the certificate holders of
the CWALT, INC.,
ALTERNATIVE LOAN TRUST
2004-12CB, MORTGAGE PASS
THROUGH CERTIFICATES,
SERIES 2004-12CB,
Plaintiff-Respondent,
v.
DEBORAH J. COCCHI, his/her
heirs, devisees, and personal
representatives, and his, her, their
or any of their successors in
right, title and interest, and MR.
OR MRS. COCCHI, spouse or
civil partner of DEBORAH J.
COCCHI,
Defendants-Appellants,
and
FIRST MUTUAL CORP.,
and STATE OF NEW JERSEY,
Defendants.
______________________________
Submitted May 25, 2022 – Decided July 28, 2022
Before Judges Whipple and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Passaic County, Docket No.
F-031338-16.
Joshua L. Thomas, attorney for appellants.
Ujala Aftab (KML Law Group, PC), attorney for
respondent.
PER CURIAM
In this residential foreclosure action, defendant Deborah J. Cocchi appeals
from Chancery Division orders issued on June 28 and 29, 2021, denying her
motions to set aside a sheriff's sale and vacate the writ for possession following
an order for final judgment of foreclosure in favor of plaintiff, Bank of New
York Mellon. After carefully reviewing the record in light of the arguments of
the parties and governing legal principles, we affirm.
We presume the parties are familiar with the long and complex procedural
history and facts relevant to this appeal, which we need only briefly summarize.
On April 23, 2004, defendant executed a note in favor of Countrywide Home
Loans, Inc., in the amount of $205,700. To secure repayment of the note, she
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also executed a mortgage, which served as a lien against the real property, which
was located on Zeliff Avenue in Little Falls (the Property).
On April 30, 2004, the loan was assigned from Countrywide Home Loans,
Inc., to The Bank of New York Trustee under Pooling and Servicing Agreement
2004-12. On April 22, 2005, the assignment of the mortgage was recorded in
the Office of the Clerk of Passaic County. On August 15, 2016, the loan was
assigned to The Bank of New York Mellon (f/k/a the Bank of New York) as
Trustee for the Benefit of the Certificate holders of the CWALT, Inc.,
Alternative Loan Trust 2004-12CB, Mortgage Pass Through Certificates, Series
2004-12CB. That assignment was also duly recorded in the Office of the Passaic
County Clerk.
On December 1, 2013, defendant defaulted on the note and mortgage, and
that default has not been cured. On November 21, 2016, plaintiff filed a
complaint for foreclosure. Defendant filed a contesting answer and
counterclaim on December 27, 2016.
Plaintiff's motion to dismiss defendant's counterclaim was granted on May
18, 2017. On July 14, 2017, plaintiff moved for summary judgment, which was
granted against defendant on September 22, 2017. Defendant's motion to
reconsider summary judgment was denied on January 2, 2018.
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Plaintiff subsequently filed for final judgment, which was entered on
March 2, 2018. Also on that date, a writ of execution was issued directing that
the Property be sold.
Defendant filed a motion to stay the re-scheduled sheriff's sale, which was
granted on September 11, 2018. Defendant again filed a motion to stay the
sheriff's sale, which was granted on October 2, 2018. On November 13, 2018,
defendant filed a motion to stay the sheriff's sale, and an order staying the
sheriff's sale was entered. Defendant filed another motion to stay the sheriff 's
sale, which was granted on December 4, 2018. On December 11, 2018, another
application to stay the sheriff's sale was granted.
On February 5, 2019, a Chancery Division order was entered denying
defendant's motion to stay the sheriff's sale. Defendant then filed an application
for permission to file an emergent motion, which was denied. In all, the sheriff's
sale was adjourned by court order five times. The sheriff's sale was finally held
on February 5, 2019, at which the Property was sold to plaintiff for $258,637.66.
On February 15, 2019, defendant filed a motion to set aside the sheriff's
sale, which was subsequently denied. A writ of possession was issued on April
27, 2020. On June 8, 2020, defendant filed a motion to set aside the sheriff 's
sale and vacate the writ of possession, which was denied on June 28, 2021.
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On June 29, 2021, the Chancery Division judge convened a hearing to
consider defendant's companion motions to set aside the foreclosure sale and
vacate the writ of possession. At the conclusion of the hearing, the judge
rendered an oral opinion. After acknowledging the governing legal principles,
the trial court found no grounds or authority that would justify vacating the
sheriff's sale, reasoning that plaintiff had established a prima facie case and
proved standing and ownership of the note within its summary judgment motion
papers. Specifically, the court found:
Here defendant seeks to vacate the [s]heriff's sale
because defendant argues that defendant had been
working toward selling the home to—and this says "the
township," but you are saying it's the State, not Little
Falls. And although plaintiff was aware that
discussions were ongoing for ten months, plaintiff still
proceeded with the sale.
Defendant argues that plaintiff made the closing
of the sale impossible because plaintiff added
substantially more fees than plaintiff was entitled to and
but for the excess fees, the closing would have
happened sooner. Essentially defendant argues that
plaintiff failed to work with the defendant in good faith
when they allowed the Sheriff's sale to proceed.
The [c]ourt finds that this argument fails because
plaintiff established a prima facie case and proved
standing and ownership of the note within its summary
judgment motion papers and an appeal was even filed.
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Lastly, defendant argues that the plaintiff does
not have ownership of the note and is not the proper
party to proceeding in this case. According to Exhibit
B, there was an e-mail exchange between defendant's
attorney and the Plaintiff Bank in New York Mellon. It
states that the Bank of New York Mellon is acting as
the trustee for the Bank of America, however,
defendant's argument also fails because it's permitted
and does not interfere with standing.
Additionally, plaintiff properly points out that the
defendant fails to set forth any grounds to vacate the
sale. In fact, defendant fails to reply to plaintiff's
opposition. Therefore, defendant does not meet the
standard to vacate the sale and plaintiff is entitled to
maintain the sale. For all those reasons, the motion will
be denied.
The court thereupon denied defendant's motions. This appeal follows.
Plaintiff raises the following contentions for our consideration:
LEGAL ARGUMENT:
A. THE TRIAL COURT ERRED DENYING THE
MOTION TO RECONSIDER.
B. FRAUD IN THE UNDERLYING CASE WAS
RAMPANT AND IGNORED BY THE TRIAL
COURT WHEN FINAL JUDGMENT WAS
PERMITTED.
We begin our analysis by acknowledging the foundational legal principles
governing this appeal. It is well-established that "a judge sitting in a court of
equity has a broad range of discretion to fashion the appropriate remedy in order
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to vindicate a wrong consistent with principles of fairness, justice, and the law."
Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 514 (2019) (quoting
Graziano v. Grant, 326 N.J. Super. 328, 342–43 (App. Div. 1999)). In Deutsche
Bank Trust Co. Ams. v. Angeles, we recognized that "[i]n foreclosure matters,
equity must be applied to plaintiffs as well as defendants." 428 N.J. Super. 315,
320 (App. Div. 2012).
Courts in this State have the authority to set aside a sheriff's sale "for
fraud, accident, surprise, or mistake, irregularities in the conduct of the sale, or
for other equitable considerations[.]" First Trust Nat. Ass'n v. Merola, 319 N.J.
Super. 44, 50 (App. Div. 1999). Furthermore, "[t]he decision whether to grant
[a motion to vacate a final judgment of foreclosure] is left to the sound discretion
of the trial court[.]" U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 105
(App. Div. 2016) (quoting Mancini v. EDS ex rel. N.J. Auto Full Ins.
Underwriting Ass'n, 132 N.J. 330, 334 (1993)).
Importantly for purposes of this appeal, the scope of appellate review of
a trial court's decision to deny a motion to vacate a sheriff's sale is narrow. It
has long been the law of New Jersey that an application to open, vacate, or
otherwise set aside a foreclosure judgment, or proceedings subsequent thereto,
is subject to an abuse of discretion standard of review. United States v. Scurry,
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193 N.J. 492, 502 (2008) (citing Wiktorowicz v. Stesko, 134 N.J. Eq. 383, 386
(E. & A. 1944)). Accordingly, "[t]he trial court's determination . . . warrants
substantial deference and should not be reversed unless it results in a clear abuse
of discretion." Curcio, 444 N.J. Super. at 105 (quoting U.S. Bank Nat'l Ass'n v.
Guillaume, 209 N.J. 449, 467 (2012)). "We must hew to that standard of
review." Ibid. "[A]n abuse of discretion [occurs] when a decision is 'made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" Guillaume, 209 N.J. at 467 (quoting
Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). Furthermore, the
burden of proof to set aside a judicial sale rests with the objector. East Jersey
Sav. & Loan Ass'n v. Shatto, 226 N.J. Super. 473, 476 (Ch. Div. 1987). "The
power to set aside a foreclosure sale is to be exercised with great care and only
when necessary for compelling reasons." Ibid.We add that a plaintiff need only present three elements to establish a
prima facie right to foreclose: "the execution, recording, and non-payment of
the mortgage." Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div.
1952). Accordingly, the defenses to a foreclosure action are narrow and limited.
The only material issues in a foreclosure proceeding are the validity of the
mortgage, the amount of indebtedness, and the right of the mortgagee to
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foreclose on the mortgaged property. Great Falls Bank v. Pardo, 263 N.J. Super.
388, 394 (Ch. Div. 1993).
Applying the foregoing legal principles to the matter before us, our
substantive analysis does not require extensive discussion. The loan has been
in default for almost eight years, and the foreclosure complaint was filed over
five years ago. By our reckoning, the Chancery court stayed the sheriff 's sale
five times. Defendant claims that a deal with the township of Little Falls was
close, but we are satisfied that she was afforded more than a reasonable amount
of time to pursue that option. We likewise reject defendant's claim of fraud by
plaintiff, her contention that there are issues with the underlying Note, and that
the amount owed at final judgment was incorrect. We emphasize that this appeal
is from the order denying the motion to set aside the sheriff's sale and vacate the
writ of possession, and not an appeal from the final judgment of foreclosure, the
time for which has long passed.
In sum, the trial court did not abuse its discretion in concluding that
defendant failed to meet the standard to set aside the sale and vacate the writ of
possession. There comes a point when hard-fought litigation must end. We
have reached that point.
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Any remaining arguments raised by defendant that we have not
specifically addressed lack sufficient merit to warrant discussion in this opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
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