NATIONSTAR MORTGAGE, LLC VS. FARAH YUCEYUKSEL DONTAS(F-47496-09, MORRIS COUNTY AND STATEWIDE)
A-2217-14T2
| N.J. Super. Ct. App. Div. | Sep 6, 2017Background
- In 2005 Dontas refinanced her Parsippany home with a Lehman Brothers note and MERS as nominee; she later defaulted in 2009.
- Aurora (assignee of the mortgage) filed foreclosure in Aug. 2009; a default was entered after Dontas did not answer; Aurora later placed her on two HAMP trial payment plans but denied permanent modification.
- Aurora assigned the mortgage to Nationstar in 2012; Dontas moved in 2013 to vacate the default and for leave to answer out of time; the trial court denied the motion as she lacked a meritorious defense.
- Nationstar was substituted as plaintiff in 2014 and obtained a final foreclosure judgment; Dontas appealed the denial of the motion to vacate and the final judgment.
- Dontas asserted several defenses: predatory lending/CFA violations by the original lender and servicer, HAMP-related misconduct/dual tracking, and lack of standing/ownership evidence; trial court found her claims unsupported.
Issues
| Issue | Plaintiff's Argument (Nationstar) | Defendant's Argument (Dontas) | Held |
|---|---|---|---|
| Motion to vacate default — standard (meritorious defense & no contumacy) | Court should deny where defendant has no meritorious defense | Default should be set aside; she has meritorious defenses and was not contumacious | Denial affirmed; defendant failed to show a meritorious defense or lack of contumacious conduct |
| Consumer Fraud Act / predatory lending by original lender | Nationstar is assignee and not vicariously liable for original lender’s predatory lending absent agency or other basis | Loan was predatory (mismatch; no docs reviewed) and supports a CFA claim against plaintiff | Rejected as to Nationstar: even if original lending was predatory, Dontas did not show Nationstar is liable for Lehman’s conduct |
| HAMP / servicer misconduct and dual tracking | No viable, supported HAMP-based CFA defense in the record; dual-tracking argument not raised below | Aurora’s HAMP TPP misconduct (document requests, delays) evidences CFA violations and dual tracking should bar foreclosure | Rejected: HAMP/TPP allegations were largely conclusory and undocumented; dual-tracking argument not preserved for appeal |
| Standing / ownership of note | Nationstar properly produced assignment/ownership chain and had standing to foreclose | Questions about MERS and multiple assignments create factual issues about ownership and standing | Rejected: defendant’s claims were speculative and did not establish an affirmative defense to foreclosure |
Key Cases Cited
- N.J. Div. of Youth & Family Servs. v. P.W.R., 410 N.J. Super. 501 (App. Div. 2009) (motions to vacate defaults are viewed liberally)
- O'Connor v. Altus, 67 N.J. 106 (1975) (vacatur requires meritorious defense and absence of contumacious conduct)
- U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449 (2012) (distinguishing standards for vacating defaults versus default judgments)
- Assocs. Home Equity Servs., Inc. v. Troup, 343 N.J. Super. 254 (App. Div. 2001) (definition and elements of predatory lending)
- U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94 (App. Div. 2016) (describing the concept of dual tracking)
- Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973) (issues not raised below are forfeited on appeal)
- Schulwitz v. Shuster, 27 N.J. Super. 554 (App. Div. 1953) (futility of permitting defenseless litigation)