WELLS FARGO BANK, N.A. VS. TABITHA HASSANÂ (F-6136-15, ESSEX COUNTY AND STATEWIDE)
A-4611-15T3
| N.J. Super. Ct. App. Div. | Aug 8, 2017|
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4611-15T3
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
TABITHA HASSAN, MR. HASSAN,
husband of TABITHA HASSAN,
Defendants-Appellants.
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Submitted August 1, 2017 – Decided August 8, 2017
Before Judges Hoffman and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-6136-15.
Tabitha Hassan, appellant pro se.
Reed Smith, LLP, attorneys for respondent
(Henry F. Reichner, of counsel and on the
brief).
PER CURIAM
Defendant Tabitha Hassan appeals from a June 13, 2016 Chancery
Division order denying her motion to vacate the default judgment
entered in favor of plaintiff Wells Fargo Bank, N.A. Defendant
argues plaintiff (1) failed to provide personal service and (2)
lacked standing to foreclose because it did not possess the
mortgage when it filed its complaint. After reviewing the record
and applicable law, we reject defendant's arguments and affirm.
I.
On May 2, 2011, American Bank loaned defendant $289,143. To
secure the loan, defendant mortgaged her Newark property. The
mortgage named Mortgage Electronic Registration Systems, Inc.,
(MERS) as the nominee for American Bank. Defendant stopped paying
the loan on September 1, 2014. On November 12, 2014, MERS assigned
the mortgage to plaintiff, and the Essex County Register's Office
recorded the assignment on November 20, 2014. American Bank also
assigned the note to plaintiff.
On February 20, 2015, plaintiff filed a foreclosure
complaint. Plaintiff tried to effect personal service on defendant
but was ultimately unsuccessful. Someone living at the mortgaged
property informed a process server that defendant no longer lived
there. The tax collector for Newark said it still mailed
defendant's real estate tax bills to the Newark property. The
post office said defendant had not provided a forwarding address.
The telephone directory lacked a listing for defendant. A
surrogate's search did not reveal defendant had a pending estate.
When plaintiff found another possible address for defendant, its
process server spoke to the current tenant, who said defendant no
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longer lived there; defendant now contends she lives at this second
address. Plaintiff then published notice in six different
newspapers, and sent a summons via regular mail to the Newark
property. The record shows plaintiff mailed the proper notices
to the Newark property.
On June 11, 2015, the Clerk entered default against defendant
after she failed to file an answer to plaintiff's complaint. On
November 13, 2015, the Chancery Division ordered the sale of
defendant's property and determined $296,927.43 as the amount owed
to plaintiff on the mortgage loan.
On March 29, 2016, defendant filed a motion to vacate final
judgment. Defendant did not explain how she learned of the final
judgment. On June 13, 2016, the court denied defendant's motion.
This appeal followed.
II.
In cases involving default judgments, "[t]he trial court's
determination . . . warrants substantial deference, and should not
be reversed unless it results in a clear abuse of discretion." US
Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012). Under
Rule 4:4-5(a), a defendant who "cannot, after diligent inquiry as
required by this rule, be served within the State," can be served
by publication "once in a newspaper published or of general
circulation in the county in which the venue is laid." R. 4:4-
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5(a)(3). "Service by publication is hardly favored and is the
method of service that is least likely to give notice." M & D
Assocs. v. Mandara, 366 N.J. Super. 341, 353 (App. Div.), certif. denied,180 N.J. 151
(2004). As "an alternative method of service of process, . . . it must be consistent with due process."Ibid. "[T]he rule requires
an affidavit that a diligent inquiry has been made and that the defendant is not available for service within the State."Ibid. The affidavit of
"diligent inquiry must be carefully scrutinized."Ibid. Here, plaintiff inquired
with many
entities to locate defendant, and attempted to make service upon
defendant many times at multiple addresses where its inquiry showed
she might reside. The trial court properly concluded plaintiff
diligently but unsuccessfully tried to serve defendant, who does
not challenge the substantive sufficiency of the six notices.
Defendant does challenge plaintiff's standing to foreclose
on the Newark property. "[E]ither possession of the note or an
assignment of the mortgage that predate[s] the original complaint
confer[s] standing." Deutsch Bank Trust Co. Ams. v. Angeles, 428
N.J. Super. 315, 320 (App. Div. 2012). On November 20, 2014, the
Essex County Register's Office recorded the assignment of the
mortgage. Plaintiff filed its foreclosure complaint on February
20, 2015. We also note plaintiff produced a copy of the allonge
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endorsing the note to plaintiff. Plaintiff clearly had standing
to initiate the foreclosure proceedings under review.
Affirmed.
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