WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC. VS. GLORIA ROMAN, ETC. (F-036552-18, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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
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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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