U.S. Bank N.A. v. Bailey
| Decision Date | 17 June 2019 |
| Docket Number | DOCKET NO. A-1724-17T2 |
| Parties | U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CREDIT SUISSE FIRST BOSTON MORTGAGE SECURITIES CORP., HOME EQUITY ASSET TRUST 2006-1, HOME EQUITY PASS-THROUGH CERTIFICATES, SERIES 2006-1, Plaintiff-Respondent, v. CAROLYN BAILEY, Defendant-Appellant, and SPRINGLEAF FINANCIAL SERVICES, INC., Defendant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Hoffman, Suter and Geiger.
On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-020645-14.
Carolyn Bailey, appellant, argued the cause pro se.
Siobhan A. Nolan argued the cause for respondent (Reed Smith, LLP, attorneys; Henry F. Reichner, of counsel and on the brief).
Defendant Carolyn Bailey appeals a December 1, 2017 order of the Chancery Division that denied her motion to void a final judgment of foreclosure. We affirm.
Within a year of executing a $207,000 note and mortgage to Columbia Home Loans, LLC (Columbia), to refinance her home, defendant defaulted on the loan. Columbia assigned the mortgage to Wells Fargo, N.A. (Wells Fargo), which later assigned it to plaintiff U.S. Bank National Association as Trustee for Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset Trust 2006-1, Home Equity Pass-Through Certificates, Series 2006-1.
Wells Fargo filed a foreclosure complaint against defendant in 2006, but it was dismissed in 2013 without prejudice for lack of prosecution. Plaintiff's servicer sent defendant a Notice of Intention to foreclose (NOI) that explainedto her that, although she was in default because she had not made the required payments, she could bring the mortgage current by paying the delinquency of $175,528.15. This amount included monthly late charges totaling $5908.32; it did not include the property taxes or insurance premiums that the lender had advanced. She could pay this amount "[t]o avoid the possibility of acceleration."
Defendant did not pay, and in May 2014, plaintiff filed a complaint for foreclosure.1 Subsequently, plaintiff's motion for summary judgment was granted, striking defendant's answer and counterclaims, which then allowed the case to proceed as an uncontested foreclosure. Defendant filed opposition to plaintiff's application for the entry of a final judgment, but her opposition was denied. A final judgment of foreclosure was entered on August 1, 2017, for $455,489.52, of which $266,597.49 was principal and $5832 were late fees.
Defendant did not appeal the final judgment. Instead, she filed a motion to void the final judgment as premature. In that motion, defendant argued the final judgment was prematurely entered because she did not have enough time, once her opposition to the judgment was denied, to ask for reconsideration or to appeal. She said she recently obtained "newly discovered evidence" consistingof a copy of her loan account history that showed "obvious and significant discrepancies." She continued "to research" an issue raised when she objected to entry of the judgment. Specifically, she argued that late fees and pre-judgment interest should not have been included in the judgment after Wells Fargo filed the first foreclosure complaint, because that filing accelerated the mortgage, making it improper then to include late fees and interest.
The trial court denied defendant's motion on December 1, 2017, finding that the loan account history was not newly discovered evidence. The late fee and pre-judgment interest issues had been rejected by the court when defendant raised them in her objection to entry of the final judgment. The loan account history did not add anything material to the issues. She could have obtained the information earlier. The court concluded that plaintiff could charge late fees up to the filing of its foreclosure complaint in 2014 because that complaint, not the earlier complaint by Wells Fargo, accelerated the debt. The court explained "the debt was decelerated when the [Wells Fargo] foreclosure action was dismissed," and that was evidenced by the fact that "prior to the filing of [the 2014] complaint, [p]laintiff had not treated the debt as accelerated and was willing to accept less than the full amount they were owed at the time to preventforeclosure." The court determined that pre-judgment interest could be assessed by plaintiff up to the date of the final judgment.
Defendant appeals the December 1, 2017 order, not the final foreclosure judgment. She argues on appeal that the court abused its discretion by ruling that the accrual of late fees and interest on those fees did not stop once the balance due on the loan was accelerated.2 She questioned "whether acceleration of the balance due on a loan in default, without an affirmative de-acceleration, is disrupted or 'reset' because of an administrative dismissal for failure to prosecute." Defendant contends the final judgment of foreclosure was void because it was prematurely entered. She also asserts she was denied due process by the three-month delay in hearing her motion to void the judgment.
We review the trial court's order denying defendant's Rule 4:50-1(b) motion to void the final judgment of foreclosure under an abuse of discretion standard. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994); UnitedStates v. Scurry, 193 N.J. 492, 503 (2008). We give substantial deference to the trial court's determination and will not reverse it "unless it represents a clear abuse of discretion." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009) (quoting Little, 135 N.J. at 283). An abuse of discretion occurs when the decision of the trial court has "without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).
Defendant contends the court should have granted her request to void the judgment because the loan account history, which showed details about the late fees, was newly discovered evidence under Rule 4:50-1(b). We discern no abuse of discretion by the trial court in rejecting this argument.
"To obtain relief from a judgment based on newly discovered evidence, the party seeking relief must demonstrate 'that the evidence would probably have changed the result, that it was unobtainable by exercise of due diligence for use at the trial, and that the evidence was not merely cumulative.'" DEG, 198 N.J. at 264 (quoting Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980)). "All three requirements must be met." Ibid.
Information about the late fees was provided to defendant well in advance of the final judgment in 2017. The NOI mailed to defendant in 2014 listed late fees of $5908.32 calculated at $75.94 per month. Plaintiff included late fees again when it made its' application for a final judgment.3 Its supporting certification listed $5832.38 in late fees, calculated at $75.94 per month. Defendant objected to the late charges, raising the same arguments she subsequently made in her motion to void the final judgment as premature. The trial court rejected defendant's objections, finding that plaintiff was entitled to late charges and post-default interest.
The loan account history does not provide any materially new information about the late fees. At most, the numbers vary by a few dollars. Defendant does not argue that the loan account history materially affected her argument about the late fees. She is not contending that she exercised due diligence or that she was unable to obtain this information at an earlier date. The information is at best cumulative. Evidence that merely "attempt[s] to remedy a belated realization of the inaccuracy of an adversary's proofs" is insufficient to warrant vacating a judgment under Rule 4:50-1(b). DEG, 198 N.J. at 264 . Thus, there was no abuse of discretion by the trial court's denial of defendant's motion to void the final judgment.
Defendant did not appeal the August 1, 2017 final judgment of foreclosure. Her notice of appeal listed the December 1, 2017 order. An appeal is limited to those judgments or orders, or parts thereof, designated in the notice of appeal. Pressler & Verniero, cmt. 6.1(e)(1) on R. 2:5-1; see Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (...
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