PHH Mortg. Corp. v. Labossiere

Decision Date18 March 2021
Docket NumberDOCKET NO. A-4907-18
PartiesPHH MORTGAGE CORPORATION, Plaintiff-Respondent, v. YVETTE LABOSSIERE, MR. LABOSSIERE, husband of YVETTE LABOSSIERE, Defendants-Appellants.
CourtNew Jersey Superior Court — Appellate Division

PHH MORTGAGE CORPORATION, Plaintiff-Respondent,
v.
YVETTE LABOSSIERE, MR. LABOSSIERE,
husband of YVETTE LABOSSIERE, Defendants-Appellants.

DOCKET NO. A-4907-18

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued March 1, 2021
March 18, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Chancery Division, Camden County, Docket No. F-013704-12.

Yvette Labossiere, appellant pro se.1

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Michael Eskenazi argued the cause for respondent (Friedman Vartolo, LLP, attorneys; Michael Eskenazi, on the brief).

PER CURIAM

Defendant appeals from June 6, 2019 order denying her motion to vacate an order providing that PHH Mortgage Corporation (PHH) had standing to maintain its foreclosure action and reinstating a June 19, 2017 final judgment of foreclosure (Second Final Judgment of Foreclosure). She also appeals from the Second Final Judgment of Foreclosure and a November 12, 2014 order suppressing her answer with prejudice. We have carefully considered defendant's contentions and affirm.

On November 17, 2007, defendant obtained a mortgage loan from PHH and in return executed a security agreement to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for PHH. On November 27, 2009, defendant and PHH entered into a loan modification agreement, which provided "[i]f applicable, [defendant's] total mortgage payment may change due to changes in [defendant's] escrow account." On June 7, 2010, PHH learned that defendant had failed to pay property taxes and that the property would go to a tax sale by the end of the month. PHH paid the overdue property taxes, exercised its contractual right to escrow the loan, and in January 2011, notified defendant that

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her loan would be escrowed, and her monthly payments would increase beginning in March 2011.

Thereafter, defendant defaulted on her mortgage. On July 19, 2012, PHH initiated the underlying foreclosure action. Defendant defaulted by failing to respond to the complaint, which resulted in a default judgment. On April 30, 2013, Judge Paul Innes issued a final judgment of foreclosure (First Final Judgment of Foreclosure) and permitted the sheriff's sale to proceed. In September 2013, defendant filed a motion to vacate the entry of default judgment and First Final Judgment of Foreclosure. On September 6, 2013, Judge Mary Eva Colalillo stayed the sheriff's sale, and on October 25, 2013, vacated the default judgment and permitted defendant to file an answer to plaintiff's complaint.

On October 1 and November 6, 2014, Judge Nan S. Famular presided over the foreclosure trial. On November 13, 2014, Judge Famular suppressed defendant's answer and defenses with prejudice and returned the matter to the Office of Foreclosure. Defendant filed a motion to vacate the order, which Judge Famular denied on January 9, 2015. On June 19, 2017, Judge Innes issued the Second Final Judgment of Foreclosure and permitted the sheriff's sale to proceed. Defendant filed a motion to vacate the Second Final Judgment of

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Foreclosure, which Judge Famular denied on October 17, 2017. Effective December 21, 2017, PHH transferred its interest in the mortgaged property to Selene Finance, LP (Selene) who collected payments on behalf of BlueWater Investment Holdings, LLC. (BlueWater).

In January 2018, defendant filed a second motion to vacate the Second Final Judgement of Foreclosure. The next month she filed for bankruptcy. On September 10, 2018, following the lifting of the bankruptcy stay, Judge Famular again entered an order denying the second motion to vacate the Second Final Judgment of Foreclosure. Defendant then filed a motion to stay the sheriff's sale, which Judge Famular denied on September 12, 2018. The following March, defendant moved to stay the sheriff's sale and vacate the Second Final Judgment of Foreclosure. On March 12, 2019, Judge Famular denied the motion to stay the sheriff's sale, but scheduled oral argument on whether to vacate the Second Final Judgment of Foreclosure.

Judge Famular conducted oral argument on April 26, 2019. Then-attorney for defendant argued that the Final Order of Foreclosure should be vacated because "new evidence presented to the bankruptcy court" showed that PHH had repeatedly transferred its interest in the mortgage. Judge Famular requested that both parties file supplemental briefs addressing whether PHH retained standing

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to foreclose the mortgage despite transferring its interest after instituting the foreclosure action. On June 6, 2019, after reviewing the parties' submissions, Judge Famular concluded that PHH retained standing to foreclose, denied defendant's motion to vacate the Second Final Judgment of Foreclosure, reinstated the Second Final Judgment of Foreclosure, and returned the file to the Office of Foreclosure.

On July 12, 2019, defendant filed a notice of appeal of the June 6, 2019 order. The following February, defendant filed an amended notice of appeal adding the Second Final Judgment of Foreclosure and the November 13, 2014 order dismissing her answers and claims with prejudice.

On appeal, defendant raises the following arguments for this court's consideration:

POINT I

THE TRIAL [JUDGE] ERRED BY RULING IN PLAINTIFF'S FAVOR DESPITE DEFENDANT'S EVIDENCE OF NO DEFAULT UNDER THE SUBJECT MODIFICATION AGREEMENT, NOTE AND MORTGAGE AND PLAINTIFF'S UNCONSCIONABLE PRACTICES TO FALSIFY A DEFAULT.

POINT II

THE TRIAL [JUDGE] ERRED UPON FAILING TO REMAIN NEUTRAL BY CREATING AN

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EXPLANATION FOR PLAINTIFF AND ITS WITNESSES WHO WERE UNABLE TO EXPLAIN, JUSTIFY AND PROVE THE DEFAULT AND AMOUNTS DECLARED DUE AND OWING UNDER THE SUBJECT MODIFICATION AGREEMENT, NOTE AND MORTGAGE.

POINT III

THE TRIAL [JUDGE] ERRED UPON DECLARING THAT PLAINTIFF'S CLAIMS OF AGENCY WITH [MERS] AS ITS ALLEGED "NOMINEE" WERE NOT RELEVANT DESPITE EXISTING LAWS OF AGENCY AND PLAINTIFF'S ASSERTIONS MADE TO CLAIM STANDING BELOW.

POINT IV

THE TRIAL [JUDGE] ERRED BY ALLOWING AN INSTRUMENT PRESENTED AS AN "ASSIGNMENT" OF THE SUBJECT MORTGAGE TO BE PRESENTED AT TRIAL THAT WAS CREATED BY PHELAN HALLINAN SCHMIEG, P.C. / PHELAN HALLINAN DIAMOND & JONES, P.C., DISPLAYS THE NAME AND SIGNATURES OF THE FIRM'S ATTORNEY AS AN OFFICER OF THE ALLEGED ASSIGNOR BEFORE A NOTARY PUBLIC ALSO EMPLOYED BY THE FIRM(S), AND CONSTITUTES (AT BEST) A CONFLICT OF INTEREST.

POINT V

THE TRIAL [JUDGE] ERRED BY ALLOWING PLAINTIFF TO PROCEED WITH [THE] SHERIFF['S] SALE TO PRESENT DATE MORE THAN TWO YEARS AFTER PLAINTIFF RECEIVED CONSIDERATION FOR THE SUBJECT

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NOTE AND MORTGAGE FROM A THIRD-PARTY, AND PLAINTIFF ABSOLVED ITSELF OF ANY INTEREST IN THE SUBJECT MODIFICATION AGREEMENT, NOTE, MORTGAGE, AND PROPERTY.

POINT VI

THE TRIAL [JUDGE] ERRED BY IGNORING PLAINTIFF'S COMMUNICATION MADE PURSUANT TO FEDERAL LAW, NOTIFYING DEFENDANT OF PLAINTIFF BECOMING THE "NEW OWNER" OF THE SUBJECT NOTE AND MORTGAGE AFTER THE MATTER BELOW WAS COMMENCED.

In her reply, defendant raises the following additional arguments, which we have renumbered:

[POINT VII]

CONTRARY TO PLAINTIFF'S . . . REPEATED CLAIM, THE DEFAULT ALLEGED WITHIN THE UNDERLYING FORECLOSURE COMPLAINT AND SUBJECT OF FINAL JUDGMENT IS FALSE, FABRICATED, UNPROVEN AND CONTRADICTORY.

[POINT VIII]

FALSE, UNSUBSTANTIATED AND CONTRADICTORY AFFIDAVIT OF AMOUNT DUE IN SUPPORT OF FINAL JUDGMENT.

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[POINT IX]

THE SCALES OF EQUITY FAVOR DEFENDANT'S . . . APPEAL IN RETROSPECT OF THE NEW JERSEY CONSENT JUDGMENT ENTERED AGAINST PLAINTIFF . . . AND THE LATTER'S CONTINUED ENGAGEMENT IN UNFAIR, DECEPTIVE AND UNLAWFUL SERVICING AND FORECLOSURE PRACTICES BELOW AND FAILURE TO REMEDIATE.

[POINT X]

A MISCARRIAGE OF JUSTICE WILL OCCUR ABSENT RELIEF TO DEFENDANT[.]

Defendant has not established a basis for vacation of the June 6, 2019 order, and her arguments pertaining to the Second Final Judgment of Foreclosure and November 12, 2014 order are untimely under Rule 2:4-1(a) and unpersuasive on the merits.

I.

We first address defendant's contention that the motion judge erred in denying the motion to vacate the Second Final Judgment of Foreclosure.

Where a party seeks to vacate a final judgment or order, they must meet the standard of Rule 4:50...

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