U.S. Bank National Association, as Trustee for The
130 A.3d 1269
| N.J. Super. Ct. App. Div. | 2016Background
- Defendant signed a 2006 promissory note and a non-purchase mortgage with EquiFirst; MERS held the mortgage as nominee for EquiFirst.
- In 2010 defendant defaulted; MERS assigned the mortgage to plaintiff U.S. Bank National Association in 2011.
- Plaintiff sent a Notice of Intention to Foreclose on Sept. 29, 2011 to the encumbered property by mail; certified mail receipt was allegedly signed by defendant.
- Personal service attempts in May 2012 failed; a private investigator located defendant at the encumbered property via diligent inquiries (USPS, DMV, tax assessor, neighbors, etc.).
- Plaintiff mailed the complaint and summons to the encumbered property on July 26, 2012; certified mail unclaimed; regular mail not returned.
- Certification of Inquiry/Mailing was filed Nov. 27, 2012, detailing service efforts; default entered Nov. 30, 2012; final judgment of foreclosure entered Oct. 11, 2013; motion to vacate denied Jan. 21, 2014.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by mail complied with Rule 4:4-3(a) | Plaintiff satisfied personal-attempts requirement and proper inquiry, then served by mail. | Service by mail was insufficient or improper. | Service by mail satisfied Rules; no void judgment. |
| Whether service by mail was properly supported by the Certification of Inquiry/Mailing | Certification met Rule 4:4-7 requirements after mailing. | Certificate filed late and improperly; insufficient verification. | Certification adequate; timely filing not required to invalidate service. |
| Whether due process and constitutional notice were satisfied | Diligent inquiry and mail service provided adequate notice. | Mail service without personal delivery may violate due process. | Due process satisfied; certified mail adequate notice. |
| Whether the 4:50-1(b) grounds or excusable neglect justify vacating the final judgment | No excusable neglect; foreclosure supported by valid service and default. | Unclean hands or other equitable defenses justify relief. | No basis to vacate; judgment affirmed. |
Key Cases Cited
- Deutsche Bank Tr. Co. Am. v. Angeles, 428 N.J. Super. 315 (App. Div. 2012) (delay in raising service issue barred relief under 4:50-1(d))
- City of Passaic v. Shennett, 390 N.J. Super. 475 (App. Div. 2007) (reasonable and good faith attempt required before service by mail under 4:4-3(a))
- Citibank, N.A. v. Russo, 334 N.J. Super. 346 (App. Div. 2000) (service by mail under 4:4-3 is valid even without appearance; default permitted if conditions met)
- First Resolution Inv. Corp. v. Seker, 171 N.J. 502 (2002) (due process when served by ordinary mail at last known address)
- M & D Assocs. v. Mandara, 366 N.J. Super. 341 (App. Div. 2004) (search requirements for diligent inquiry; absence of certain searches not fatal)