THE BANK OF NEW YORK MELLON, ETC. VS. KELLAR COVINGTON, JR. (F-008310-15, UNION COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-3055-19
THE BANK OF NEW YORK
MELLON f/k/a THE BANK OF
NEW YORK, AS TRUSTEE FOR
THE CERTIFICATE HOLDERS OF
THE CWABS, INC. ASSET
BACKED CERTIFICATES,
SERIES 2007-9,
Plaintiffs-Respondents,
v.
KELLAR COVINGTON JR.,
Individually and as the
Administrator for the
Estate of DOLORES
COVINGTON,
Defendants-Appellants,
and
MRS.KELLAR COVINGTON JR.,
His Wife, TEIRA LAROSE,
DOLORES COVINGTON, Her
Heirs, Devisees, and Personal
Representatives and His, Her, or
Any of Their Successors in Right,
Title, and Interest, BANK ONE n/k/a
JP MORGANCHASE BANK, N.A.,
CBS OUTDOOR, INC., STATE
OF NEW JERSEY, PROPONENT
FEDERAL CREDIT UNION,
UNITED STATES OF AMERICA,
JOHN SMITH, VALLEY
NATIONAL BANK, VALLEY
NATIONAL BANK BRANCH 115,
Defendants.
______________________________
ANTHONY COEHELO and
FOREL ENT., LLC,
Intervenors-Respondents.
______________________________
Submitted March 1, 2021 – Decided March 18, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Union County, Docket No.
F-008310-15.
Kellar Covington Jr., appellant pro se.
John Motta, attorney for intervenor-respondent Forel
Ent., LLC.1
PER CURIAM
1
After successfully bidding at a sheriff's sale, intervenor Forel Ent., LLC
(Forel) is the current owner of the property at issue in this appeal.
A-3055-19
2
Defendant Kellar Covington Jr. 2 appeals from two separate March 18,
2020 orders. One order denied his motion "to strike and invalid[ate a] sheriff's
deed from the land use records of Union County entered on February 4, 2020"
and the other order denied his motion to void a February 12, 2020 writ of
possession. We affirm for the reasons expressed by Judge Joseph P. Perfilio.
Defendant failed to timely appeal the 2019 judgment of foreclosure. Only
the two March 18, 2020 orders entered subsequent to the judgment of
foreclosure are the subject of defendant's appeal. We summarize the facts
relevant to defendant's appeal from the March 18, 2020 orders.
In 2007, Dolores Covington executed loan documents, including a note
for the sum of $292,500, and a mortgage on a residential property she owned in
Hillside, New Jersey (Property) to secure the loan.
In 2010, Dolores Covington defaulted on the payments due on the note.
In September 2011, the note and mortgage were assigned to The Bank of New
York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders
of the CWABS, Inc. Asset-Backed Certificates, Series 2007-9 (Bank). In
November 2013, the Bank served a notice of intention to foreclose on the Estate
2
Kellar Covington Jr. is the son of Dolores Covington and the executor of his
deceased mother's estate. In this appeal, we refer to Kellar Covington Jr. as
defendant.
A-3055-19
3
of Dolores Covington. The notice was sent to the Property address, where
defendant resided.
The Bank filed a foreclosure complaint, and defendant answered.
Subsequently, defendant moved to dismiss the Bank's complaint. The motion
judge denied defendant's motion and, sua sponte, entered an order striking
defendant's answer. The Bank obtained a final judgment in foreclosure on May
1, 2019. Defendant filed a series of unsuccessful post-judgment motions
challenging the foreclosure judgment.
The Property was listed for a sheriff's sale. On July 23, 2019, defendant
filed a motion to stay the sheriff's sale, which was denied the same day. The
next day, Forel purchased the Property at the sheriff's sale. Defendant objected
to the sale of the Property, but his objections were rejected by the motion judge.
On January 31, 2020, Forel received an executed deed to the Property from
the sheriff. On February 12, 2020, Forel obtained a writ of possession for the
Property.
In February 2020, defendant filed a motion "to strike and invalidate the
[s]heriff's deed from the land use records" and a motion to void the writ of
possession. Defendant argued the sheriff's sale was improper and the writ of
A-3055-19
4
possession should be voided pursuant to Rule 4:50-1(a). Forel opposed the
motions.
In two separate March 18, 2020 orders, Judge Perfilio denied defendant's
motions. The judge found defendant failed to "demonstrate that the [s]heriff's
deed, [w]rit of [p]ossession, final judgment, or [w]rit of [e]xecution were the
result of mistake, inadvertence, surprise, or excusable neglect in accordance
with Rule 4:50-1(a)." Judge Perfilio further held defendant "fail[ed] to establish
the presence of any equitable considerations to justify vacating any previously
filed orders in this matter" and "did not attempt to provide evidence of a
meritorious defense worthy of judicial determination."
The judge also noted defendant sought reconsideration under Rule 4:49-
2, despite his failure to identify the specific basis for the relief requested. Judge
Perfilio denied reconsideration because defendant "fail[ed] to demonstrate that
the [c]ourt based its decision upon a palpably incorrect or irrational basis or that
it failed to appreciate the significance [of] probative, competent evidence, in
accordance with Rule 4:49-2 . . . for granting the [w]rit of [p]ossession or final
judgment in this matter." Moreover, the judge stated defendant "fail[ed] to state
with any specificity, the basis upon which these motions were made" and
defendant's prior motions for reconsideration were fully reviewed and denied.
A-3055-19
5
He also found defendant "merely relie[d] on general, bare assertions to dispute
the validity of this entire foreclosure action." Judge Perfilio concluded, "[a]t
this stage of litigation, it should be clear that the only proper form of recourse
available to [d]efendant . . . is to seek relief through a notice of appeal."
On appeal, defendant renews the arguments presented to the trial court.
Specifically, defendant claims the trial court failed to set aside the sheriff's deed
because there was no admissible evidence to prove the sale was authorized by
the statute. He also contends the sale was conducted by the sheriff when the
evidence demonstrated the sale was improper. We disagree and affirm for the
written reasons expressed by Judge Perfilio. We add the following comments.
Rule 4:50–1 "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.'" US Bank Nat'l Ass'n
v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Mancini v. EDS, 132 N.J. 330,
334 (1993)). A decision to vacate a judgment lies within the sound discretion
of the trial judge, guided by principles of equity. Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 283 (1994).
A trial court's decision on a motion to vacate a judgment under Rule 4:50-
1 is reviewed for abuse of discretion. Guillaume, 209 N.J. at 467. An abuse of
A-3055-19
6
discretion exists if a decision lacks "rational explanation, inexplicably departed
from established policies, or rested on an impermissible basis." Ibid. (quoting
Iladis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). To prevail on a motion
to vacate a judgment, the movant must prove both excusable neglect and a
meritorious defense. Id. at 468-69.
A general equity judge "has the authority to set aside a sheriff's sale" in
his or her discretion upon "considerations of equity and justice." First Tr. Nat'l.
Ass'n v. Merola, 319 N.J. Super. 44, 49 (App. Div. 1999) (citing Crane v.
Bielski, 15 N.J. 342, 346, 359 (1954)). In addition, a court may set aside a
sheriff's sale for "fraud, accident, surprise, or mistake, irregularities in the
conduct of the sale, or for other equitable considerations." Id. at 50 (citing Karel
v. Davis, 122 N.J. Eq. 526, 528 (E & A. 1937)). Motions to set aside a sheriff's
sale will be overturned "if they were made under a misconception of the
applicable law." Id. at 49 (quoting O'Neill v. City of Newark, 304 N.J. Super.
543, 550 (App. Div. 1997)).
Defendant argues the sheriff's sale did not comply with the requirements
of N.J.S.A. 2A:50-64. Specifically, defendant contends the Bank and Forel did
not comply with the statute's requirement indicating "the successful bidder at
the sheriff's sale shall pay a 20 percent deposit in either cash or by a certified or
A-3055-19
7
cashier's check, made payable to the sheriff of the county . . . immediately upon
the conclusion of the foreclosure sale." N.J.S.A. 2A:50-64(a)(4). Defendant
also contends Forel failed to prove it was the successful bidder at the sheriff's
sale and, therefore, the sale should be vacated.
Here, there is nothing in the record to support defendant's claim of any
irregularities or failures to comply with statutory law regarding the sale of the
Property. Forel paid $208,000 at the sheriff's sale to acquire the Property,
possessed a valid deed to the Property, and timely recorded that deed. In
addition, Forel holds a valid writ of possession for the Property signed by the
County Clerk. Defendant failed to present any evidence of fraud or deceit
associated with Forel's acquisition of the Property and, therefore, failed to
satisfy the requirements of Rule 4:50-1 or establish the elements necessary to
set aside the sheriff's sale.
Having reviewed the record, we are satisfied Judge Perfilio did not abuse
his discretion in denying defendant's motion to strike and invalidate the sheriff's
sale and deed or in denying the motion to vacate the writ of possession.
Affirmed.
A-3055-19
8