WELLS FARGO BANK, N.A., ETC. VS. TIMOTHY J. PROVOST, Â(F-18102-06, MONMOUTH COUNTY AND STATEWIDE)
A-1901-15T3
| N.J. Super. Ct. App. Div. | Aug 11, 2017|
Check Treatment NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1901-15T3
WELLS FARGO BANK, N.A., AS
INDENTURE TRUSTEE UNDER THE
INDENTURE RELATING TO IMH ASSETS
CORPORATION, COLLATERALIZED
ASSET-BACKED BONDS, SERIES 2004-9,
Plaintiff-Respondent,
v.
TIMOTHY J. PROVOST,
Defendant-Appellant,
and
DEBORAH E. PROVOST and
NATIONAL CITY BANK,
Defendants.
___________________________________
Submitted June 21, 2017 — Decided August 11, 2017
Before Judges Fuentes and Koblitz.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-18102-06.
Timothy J. Provost, appellant pro se.
Eckert Seamans Cherin and Mellott, LLC,
attorneys for respondent (David V. Mignardi,
on the brief).
PER CURIAM
Defendant Timothy J. Provost1 appeals from a November 20, 2015
order denying his application to vacate the amended final judgment
of foreclosure, vacate the writ of execution and other requested
relief. The order also vacated the stay of a sheriff's sale.
Defendant initially argued that he was not credited with $20,000
of $33,800 in payments made to defendant after the foreclosure
complaint was filed in 2006. For substantially the same reasons
Judge Del Bueno Cleary placed on the record in her November 20,
2015 oral decision, we affirm.
Defendant borrowed $490,000 to refinance his home in 2004 and
defaulted two years later. Plaintiff filed a foreclosure complaint
on October 10, 2006 and a default judgment was entered on December
4, 2008. Various mediations occurred and, according to plaintiff's
counsel, the sheriff's sale was adjourned more than thirty times.
See GMAC Mortgage, LLC v. TamiLynn Willoughby, __ N.J. __, __
(2017) (slip op. at 16-17) (describing the New Jersey Judiciary
Residential Mortgage Foreclosure Mediation Program). Plaintiff
1
The judgment and amended final judgment were both entered
against both Timothy and Deborah Provost. Only Timothy J. Provost
filed an appeal and we will refer to him as "defendant."
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filed a motion to amend the final judgment that defendant admits
receiving and not responding to. The motion contained proof that
$674,927.82 plus costs and attorney's fees were due. On October
20, 2014, the amended final judgment in that amount was entered,
and defendant admits receiving an unexecuted copy by mail in
November 2014. In August 2015, defendant sought to vacate the
final judgment, for the first time contesting the amount due. The
motion judge found defendant's motion lacked specificity or
proofs.
We review a decision to deny a motion to vacate final judgment
under Rule 4:50-1 for an abuse of discretion. U.S. Bank Nat'l
Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). Plaintiff
demonstrated to the motion court's satisfaction in what way
defendant's payments of $33,800 were applied in its calculations.
This foreclosure has been pending for almost eleven years. In
foreclosure matters, equity must be applied to plaintiffs as well
as defendants. Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J.
Super. 315, 320 (App. Div. 2012). Defendant's arguments are
without sufficient merit to require further discussion in a written
opinion. R. 2:11-3(e)(1)(E). Judge Del Bueno Cleary exercised
sound discretion in denying defendant's motion to vacate the final
amended judgment of foreclosure.
Affirmed.
3 A-1901-15T3