WELLS FARGO BANK, NA VS. ADAM JUDELSON(F-042765-09, ESSEX COUNTY AND STATEWIDE)
A-4412-15T2
| N.J. Super. Ct. App. Div. | Oct 23, 2017Background
- In 2008 Judelson executed a $148,000 promissory note secured by a mortgage on Newark property; he defaulted in 2009 and Wells Fargo filed for foreclosure in August 2009.
- Wells Fargo attempted personal service at the mortgaged premises, performed a skip trace locating a New York address, and sent certified and regular mail; certified mail was returned unclaimed but regular mail was not returned.
- Judelson did not respond; default was entered in December 2009. The case was briefly dismissed for lack of prosecution but later reinstated and final judgment was entered March 17, 2015.
- Over a year after final judgment, Judelson moved to vacate the default and final judgment alleging lack of service and due-process violations; the trial court denied the motion.
- The Appellate Division affirmed, holding its review of Rule 4:50-1 relief is narrow, noting the one-year delay constrained available grounds and finding mail service proper under R. 4:4-4(b)(1)(C) and the record showed inexcusable neglect by Judelson.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service | Wells Fargo: service by certified and regular mail to New York address satisfied R. 4:4-4(b)(1)(C) | Judelson: was not served and thus lacked notice; due-process violation | Held for Wells Fargo — mail service was proper and factual findings supported; no due-process relief |
| Motion to vacate timing / Rule 4:50-1 | Wells Fargo: judgment final; delay over one year limits relief and bars excusable-neglect claim | Judelson: sought relief from judgment despite delay, asserting service defect | Held for Wells Fargo — one-year delay restricts relief; even if available, neglect was inexcusable |
| Standing / ownership of note | Wells Fargo: had right to foreclose (trial record supported) | Judelson (raised on appeal): Wells Fargo lacked ownership/control of the note under UCC Art. 3 | Not considered on appeal — issue not raised below and not jurisdictional or of public importance, so court declined to review |
| Reasoning in trial court order | Wells Fargo: trial court sufficiently found facts and applied law | Judelson: trial court failed to state reasons/factual findings for denial | Held for Wells Fargo — appellate court found trial court's factual findings supported by the record |
Key Cases Cited
- U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449 (N.J. 2012) (Rule 4:50-1 relief in foreclosure context merits substantial deference)
- U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94 (App. Div. 2016) (mail service under R. 4:4-4(b)(1)(C) can be proper substitute for personal service)
- Orner v. Liu, 419 N.J. Super. 431 (App. Div. 2011) (one-year outer limit for seeking relief from judgment affects available grounds)
- Baumann v. Marinaro, 95 N.J. 380 (N.J. 1984) (willful failure to respond is not excusable neglect)
- State v. Robinson, 200 N.J. 1 (N.J. 2009) (appellate courts may decline issues not raised below)
- State v. Arthur, 184 N.J. 207 (N.J. 2005) (preservation principle for appellate review applies except in limited circumstances)