THE BANK OF NEW YORK MELLON, ETC. VS. KELLAR COVINGTON, JR. (F-008310-15, UNION COUNTY AND STATEWIDE)

T
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-3055-19

THE BANK OF NEW YORK
MELLON f/k/a THE BANK OF
NEW YORK, AS TRUSTEE FOR
THE CERTIFICATE HOLDERS OF
THE CWABS, INC. ASSET
BACKED CERTIFICATES,
SERIES 2007-9,

          Plaintiffs-Respondents,

v.

KELLAR COVINGTON JR.,
Individually and as the
Administrator for the
Estate of DOLORES
COVINGTON,

          Defendants-Appellants,

and

MRS.KELLAR COVINGTON JR.,
His Wife, TEIRA LAROSE,
DOLORES COVINGTON, Her
Heirs, Devisees, and Personal
Representatives and His, Her, or
Any of Their Successors in Right,
Title, and Interest, BANK ONE n/k/a
JP MORGANCHASE BANK, N.A.,
CBS OUTDOOR, INC., STATE
OF NEW JERSEY, PROPONENT
FEDERAL CREDIT UNION,
UNITED STATES OF AMERICA,
JOHN SMITH, VALLEY
NATIONAL BANK, VALLEY
NATIONAL BANK BRANCH 115,

     Defendants.
______________________________

ANTHONY COEHELO and
FOREL ENT., LLC,

     Intervenors-Respondents.
______________________________

           Submitted March 1, 2021 – Decided March 18, 2021

           Before Judges Rothstadt and Mayer.

           On appeal from the Superior Court of New Jersey,
           Chancery Division, Union County, Docket No.
           F-008310-15.

           Kellar Covington Jr., appellant pro se.

           John Motta, attorney for intervenor-respondent Forel
           Ent., LLC.1

PER CURIAM




1
   After successfully bidding at a sheriff's sale, intervenor Forel Ent., LLC
(Forel) is the current owner of the property at issue in this appeal.
                                                                       A-3055-19
                                      2
      Defendant Kellar Covington Jr. 2 appeals from two separate March 18,

2020 orders. One order denied his motion "to strike and invalid[ate a] sheriff's

deed from the land use records of Union County entered on February 4, 2020"

and the other order denied his motion to void a February 12, 2020 writ of

possession. We affirm for the reasons expressed by Judge Joseph P. Perfilio.

      Defendant failed to timely appeal the 2019 judgment of foreclosure. Only

the two March 18, 2020 orders entered subsequent to the judgment of

foreclosure are the subject of defendant's appeal. We summarize the facts

relevant to defendant's appeal from the March 18, 2020 orders.

      In 2007, Dolores Covington executed loan documents, including a note

for the sum of $292,500, and a mortgage on a residential property she owned in

Hillside, New Jersey (Property) to secure the loan.

      In 2010, Dolores Covington defaulted on the payments due on the note.

In September 2011, the note and mortgage were assigned to The Bank of New

York Mellon f/k/a The Bank of New York, as Trustee for the Certificate Holders

of the CWABS, Inc. Asset-Backed Certificates, Series 2007-9 (Bank).            In

November 2013, the Bank served a notice of intention to foreclose on the Estate


2
  Kellar Covington Jr. is the son of Dolores Covington and the executor of his
deceased mother's estate. In this appeal, we refer to Kellar Covington Jr. as
defendant.
                                                                          A-3055-19
                                       3
of Dolores Covington. The notice was sent to the Property address, where

defendant resided.

      The Bank filed a foreclosure complaint, and defendant answered.

Subsequently, defendant moved to dismiss the Bank's complaint. The motion

judge denied defendant's motion and, sua sponte, entered an order striking

defendant's answer. The Bank obtained a final judgment in foreclosure on May

1, 2019.    Defendant filed a series of unsuccessful post-judgment motions

challenging the foreclosure judgment.

      The Property was listed for a sheriff's sale. On July 23, 2019, defendant

filed a motion to stay the sheriff's sale, which was denied the same day. The

next day, Forel purchased the Property at the sheriff's sale. Defendant objected

to the sale of the Property, but his objections were rejected by the motion judge.

      On January 31, 2020, Forel received an executed deed to the Property from

the sheriff. On February 12, 2020, Forel obtained a writ of possession for the

Property.

      In February 2020, defendant filed a motion "to strike and invalidate the

[s]heriff's deed from the land use records" and a motion to void the writ of

possession. Defendant argued the sheriff's sale was improper and the writ of




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                                        4
possession should be voided pursuant to Rule 4:50-1(a). Forel opposed the

motions.

      In two separate March 18, 2020 orders, Judge Perfilio denied defendant's

motions. The judge found defendant failed to "demonstrate that the [s]heriff's

deed, [w]rit of [p]ossession, final judgment, or [w]rit of [e]xecution were the

result of mistake, inadvertence, surprise, or excusable neglect in accordance

with Rule 4:50-1(a)." Judge Perfilio further held defendant "fail[ed] to establish

the presence of any equitable considerations to justify vacating any previously

filed orders in this matter" and "did not attempt to provide evidence of a

meritorious defense worthy of judicial determination."

      The judge also noted defendant sought reconsideration under Rule 4:49-

2, despite his failure to identify the specific basis for the relief requested. Judge

Perfilio denied reconsideration because defendant "fail[ed] to demonstrate that

the [c]ourt based its decision upon a palpably incorrect or irrational basis or that

it failed to appreciate the significance [of] probative, competent evidence, in

accordance with Rule 4:49-2 . . . for granting the [w]rit of [p]ossession or final

judgment in this matter." Moreover, the judge stated defendant "fail[ed] to state

with any specificity, the basis upon which these motions were made" and

defendant's prior motions for reconsideration were fully reviewed and denied.


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                                         5
He also found defendant "merely relie[d] on general, bare assertions to dispute

the validity of this entire foreclosure action." Judge Perfilio concluded, "[a]t

this stage of litigation, it should be clear that the only proper form of recourse

available to [d]efendant . . . is to seek relief through a notice of appeal."

      On appeal, defendant renews the arguments presented to the trial court.

Specifically, defendant claims the trial court failed to set aside the sheriff's deed

because there was no admissible evidence to prove the sale was authorized by

the statute. He also contends the sale was conducted by the sheriff when the

evidence demonstrated the sale was improper. We disagree and affirm for the

written reasons expressed by Judge Perfilio. We add the following comments.

      Rule 4:50–1 "is 'designed to reconcile the strong interests in finality of

judgments and judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case.'" US Bank Nat'l Ass'n

v. Guillaume, 

209 N.J. 449

, 467 (2012) (quoting Mancini v. EDS, 

132 N.J. 330

,

334 (1993)). A decision to vacate a judgment lies within the sound discretion

of the trial judge, guided by principles of equity. Hous. Auth. of Morristown v.

Little, 

135 N.J. 274

, 283 (1994).

      A trial court's decision on a motion to vacate a judgment under Rule 4:50-

1 is reviewed for abuse of discretion. 

Guillaume, 209 N.J. at 467

. An abuse of


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                                         6
discretion exists if a decision lacks "rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis."

Ibid. (quoting

Iladis v.

Wal-Mart Stores, Inc., 

191 N.J. 88

, 123 (2007)). To prevail on a motion

to vacate a judgment, the movant must prove both excusable neglect and a

meritorious defense.

Id. at 468-69.

      A general equity judge "has the authority to set aside a sheriff's sale" in

his or her discretion upon "considerations of equity and justice." First Tr. Nat'l.

Ass'n v. Merola, 

319 N.J. Super. 44

, 49 (App. Div. 1999) (citing Crane v.

Bielski, 

15 N.J. 342

, 346, 359 (1954)). In addition, a court may set aside a

sheriff's sale for "fraud, accident, surprise, or mistake, irregularities in the

conduct of the sale, or for other equitable considerations."

Id. at 50

(citing Karel

v. Davis, 

122 N.J. Eq. 526

, 528 (E & A. 1937)). Motions to set aside a sheriff's

sale will be overturned "if they were made under a misconception of the

applicable law."

Id. at 49

(quoting O'Neill v. City of Newark, 

304 N.J. Super.

543

, 550 (App. Div. 1997)).

      Defendant argues the sheriff's sale did not comply with the requirements

of N.J.S.A. 2A:50-64. Specifically, defendant contends the Bank and Forel did

not comply with the statute's requirement indicating "the successful bidder at

the sheriff's sale shall pay a 20 percent deposit in either cash or by a certified or


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                                         7
cashier's check, made payable to the sheriff of the county . . . immediately upon

the conclusion of the foreclosure sale." N.J.S.A. 2A:50-64(a)(4). Defendant

also contends Forel failed to prove it was the successful bidder at the sheriff's

sale and, therefore, the sale should be vacated.

      Here, there is nothing in the record to support defendant's claim of any

irregularities or failures to comply with statutory law regarding the sale of the

Property. Forel paid $208,000 at the sheriff's sale to acquire the Property,

possessed a valid deed to the Property, and timely recorded that deed. In

addition, Forel holds a valid writ of possession for the Property signed by the

County Clerk. Defendant failed to present any evidence of fraud or deceit

associated with Forel's acquisition of the Property and, therefore, failed to

satisfy the requirements of Rule 4:50-1 or establish the elements necessary to

set aside the sheriff's sale.

      Having reviewed the record, we are satisfied Judge Perfilio did not abuse

his discretion in denying defendant's motion to strike and invalidate the sheriff's

sale and deed or in denying the motion to vacate the writ of possession.

      Affirmed.




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