LAKEVIEW LOAN SERVICING, LLC VS. ROBERT DOERR (F-011751-15, SOMERSET COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-0371-18T3
LAKEVIEW LOAN
SERVICING, LLC,
Plaintiff-Respondent,
v.
ROBERT DOERR,
Defendant-Appellant,
and
RANDI DOERR, GIBBONS PC,
TD BANK NA, GREENBAUM
ROWE SMITH & DAVIS, STATE
OF NEW JERSEY, and NJ
AMBULATORY ANESTHESIA
ASSOCIATES,
Defendants.
______________________________
Submitted November 18, 2019 - Decided January 31, 2020
Before Judges Vernoia and Susswein.
On appeal from the Superior Court of New Jersey,
Chancery Division, Somerset County, Docket No. F-
011751-15.
Robert Doerr, appellant pro se.
KML Law Group, PC, attorneys for respondent (J. Eric
Kishbaugh, on the brief).
PER CURIAM
In this mortgage foreclosure action, defendant, Robert Doerr, appeals
from an August 8, 2018 order denying his motion to set aside the sheriff's sale
and vacate final judgment. Doerr does not dispute that he defaulted on his
mortgage by failing to make payments. Rather, the gist of his contention on
appeal is that plaintiff, Lakeview Loan Servicing, LLC, failed to submit an
affidavit of diligent inquiry as required pursuant to Rule 4:64-2(d). We reject
Doerr's contentions and affirm substantially for the reasons set forth in Judge
Margaret Goodzeit's detailed and well-reasoned written opinion.
I.
Defendant raises the following points for our consideration on appeal:
POINT I
PLAINTIFF FAILED TO FILE THE REQUIRED
PROOFS PURSUANT TO THE NEW JERSEY
SUPREME COURT ORDER DATED JUNE 9, 2011
(R. 4:64-2(D)[)].
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POINT II
PLAINTIFF FAILED TO FILE THE REQUIRED
ATTACHMENT KNOWN AS THE AFFIDAVIT OF
DILIGENT INQUIRY FORM WITH ITS
APPLICATION/MOTION FOR FINAL JUDGMENT
IN VIOLATION OF (R. 4:64-2 AND R. 1:5-6(C)[)].
POINT III
STURDY BANK [1] DECISION MUST BE DEEMED
TO BE LAW OF THE CASE BECAUSE LAKEVIEW
LOAN SERVICING, LLC[,] FAILED TO PLEAD
THAT MONTHLY NOTE PAYMENTS WERE IN
DEFAULT AND DUE AND OWING TO WELLS
FARGO BANK, N.A. AS EVIDENCED BY THE
FAILING OF PLAINTIFF TO FILE PROPER
PROOFS AS REQUIRED BY RULE 4:64[-2].
II.
We need not recount in detail the facts of this case, which are set forth in
detail in Judge Goodzeit's opinion. For our purposes, it suffices to note that
defendant failed to answer plaintiff's complaint filed on March 31, 2015 and
served on defendant on April 7, 2015. In response, the court entered default
against defendant on March 1, 2016. Defendant did not challenge his default,
and, on August 18, 2016, the court entered final judgment. Fourteen months
1
Sturdy Savs. Bank v. Roberts, 427 N.J. Super. 27 (Ch. Div. 2012).
A-0371-18T3
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later, on October 26, 2017, defendant filed his notice of motion to vacate final
judgment pursuant to Rule 4:50-1(c).
III.
Judge Goodzeit denied defendant's motion to vacate final judgment on two
bases. First, Judge Goodzeit found defendant's motion was time barred under
Rule 4:50-2. Second, Judge Goodzeit determined that defendant did not
establish that his failure to answer plaintiff's complaint was excusable under the
circumstances.
We accord the court's determination "substantial deference," and we will
not reverse the court unless its ruling "results in a clear abuse of discretion."
U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). "[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.'" Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
We concur with Judge Goodzeit's sound conclusions and, under our deferential
standard of review, affirm her denial of defendant's motion.
A.
Rule 4:50-1 governs motions for relief from a judgment or order. That
provision "is designed to reconcile the strong interests in finality of judgments
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and judicial efficiency with the equitable notion that courts should have the
authority to avoid an unjust result in any given case." Manning Eng'g, Inc. v.
Hudson Cty. Park Comm'n, 74 N.J. 113, 120 (1977). However, parties do not
have an unlimited period of time to seek relief. Rather, motions brou ght
pursuant to Rule 4:50-1(a), (b), and (c) "shall be made within a reasonable time
. . . [that is] not more than one year after the judgment, order or proceeding was
entered or taken." R. 4:50-2; see also Orner v. Liu, 419 N.J. Super. 431, 437
(App. Div. 2011) ("All Rule 4:50 motions must be filed within a reasonable
time, which, in some circumstances, may be less than one year from entry of the
order in question." (emphasis omitted)).
We agree with Judge Goodzeit that defendant is procedurally barred under
Rule 4:50-2 from seeking relief from the final judgment entered against him.
Defendant waited well over a year before filing the instant motion to vacate.
The record supports Judge Goodzeit's conclusion that this period of delay was
unreasonable and, certainly, well outside the one-year outer limit for seeking
relief from a judgment under Rule 4:50-1(a), (b), or (c). Accordingly, defendant
must be deemed to have waived his right to attack the judgment entered on
August 18, 2016. See M & D Assocs. v. Mandara, 366 N.J. Super. 351–52 (App.
Div. 2004) (noting that the right to challenge a judgment based on lack of service
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"may be waived if not brought within a reasonable time"); Bascom Corp. v.
Chase Manhattan Bank, 363 N.J. Super. 334, 341 (App. Div. 2003) (commenting
that the right to attack a judgment on the basis of lack of personal jurisdiction
may "be deemed waived if not exercised within a reasonable time").
B.
Separate from the procedural deficiencies involved in defendant's motion,
we also agree with Judge Goodzeit that defendant's motion to vacate default
judgment should be denied on the merits. We recognize that courts "view 'the
opening of default judgments . . . with great liberality.'" Mancini v. EDS, 132
N.J. 330, 334 (1993) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313,
319 (App. Div. 1964)). However, that general principle does not obviate the
requirement that a party show both "that the neglect to answer was excusable
under the circumstances" and that the movant "has a meritorious defense."
Marder, 84 N.J. Super. at 318. Excusable neglect is defined as that "which might
have been the act of a reasonably prudent person under the same circumstances."
Tradesmens Nat'l Bank & Trust Co. v. Cummings, 38 N.J. Super. 1, 5 (App.
Div. 1955).
Here, defendant presents no argument on appeal excusing his failure to
answer the complaint against him. Rather, defendant focuses on alleged
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deficiencies in plaintiff 's application for final judgment. His contentions are
clearly without merit. In these circumstances, we agree with the trial court that
defendant has failed to offer an excuse for his neglect.
The gravamen of Doerr's argument on appeal is that plaintiff failed to
comply with the requirements of Rule 4:64-2(d) when it submitted an
application for final judgment supported by certifications rather than affidavits.
Defendant's contention ignores Rule 1:4-4(b), which provides:
In lieu of the affidavit, oath, or verification required by
these rules, the affiant may submit the following
certification, which shall be dated and immediately
precede the affiant's signature: "I certify that the
foregoing statements made by me are true. I am aware
that if any of the foregoing statements made by me are
willfully false, I am subject to punishment."
Applying this rule of general application, we have previously confirmed that a
certification "with language certifying that its contents are true and with . . .
recognition that any 'willfully false' statements may subject [the affiant] to
punishment, is the functional equivalent of an affidavit in New Jersey practice."
State v. Kent, 391 N.J. Super. 352, 372 (App. Div. 2007); see also Pressler &
Verniero, Current N.J. Court Rules, cmt. 2 on R. 1:4-4 (2020) (explaining Rule
1:4-4(b) "permit[s] the certification to be used in lieu of any sworn statement
required by [the] rules").
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In this instance, the record clearly supports the trial court's finding that
the certifications submitted by plaintiff as part of the foreclosure process
contained the language required by Rule 1:4-4(b) that allows those certifications
to stand in place of an affidavit. For this reason, plaintiff's use of certifications
in place of affidavits is not fatal to the entry of final judgment, and the trial court
in no way abused its discretion in rejecting the central premise of Doerr's
substantive argument and in denying on the merits his motion to vacate final
judgment.
Any additional contentions raised by Doerr that we have not addressed
lack sufficient merit to warrant discussion in this opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
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