WAGE GARNISHMENT ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

GARDEN STATE ANESTHESIA — RARITAN BAY, Plaintiff,
v.
Ketty SIBILLY, Defendant.

DOCKET No. DC-003294-11.
Superior Court of New Jersey, Law Division, Mercer County. Special Civil Part.

Decided: July 27, 2017.

131 Raymond Meisenbacher, Bridgewater, attorney for plaintiff (Raymond Meisenbacher and Sons, PC, attorneys).

Ketty Sibilly, defendant, pro se.

ANKLOWITZ, J.S.C.

The legal issue here is whether child support is exempt from levy, attachment and execution on a money judgment against a parent.

Plaintiff filed a complaint for an unpaid medical bill on April 7, 2011. Judgment was entered by default on June 7, 2017, in the amount of $1871.64 plus costs and statutory attorney's fees. N.J.S.A. 22A:2-42. On April 14, 2017, a Writ of Execution Against Goods and Chattels was issued. The Writ gave credit for payments made and showed a total balance due in the amount of $1,653.38.

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On June 9, 2017, a court officer levied on an account of defendant at JP Morgan Chase. The court officer gave notice of the levy by affidavit. Plaintiff filed a motion for turnover of funds on June 27, 2017. On June 30, 2017, defendant filed an objection to the levy. The parties are thus joined in opposition to each other's positions.

On July 27, 2017, defendant testified that her supporting documents were sent to plaintiff's counsel on July 20, 2017. Notice was given to plaintiffs counsel of the hearing, and plaintiff waived its appearance as is permitted under Rule 4:59-1(e).

No statute expressly covers child support as a basis for an objection to a levy, but an analysis of the relevant law warrants a conclusion that child support cannot be the subject of a levy from an ordinary money judgment against a parent.

The law on enforcing judgments makes only a judgment debtor liable. N.J.S.A. 2A:17-15, 16, 17, and 18. Unless there is some exception, like an amercement action, N.J.S.A. 2A:18-29 and N.J.S.A. 40A:9-109, or an action against an employer that refuses to implement a wage garnishment, N.J.S.A. 2A:17-64, the judgment can only be enforced against the judgment debtor and not the debtor's children, friends or others.

"The right to child support belongs to the child and cannot be waived by the custodial parent." Pascale v. Pascale, 140 N.J. 583, 591, 660 A.2d 485 (1995) (internal citations omitted). If a parent receives child support for his or her child the money belongs to the child and cannot be used to satisfy a judgment against the parent. Courts have traditionally taken a parens patriae role in protecting the best interest of the child on issues of child support. Faherty v. Faherty, 97 N.J. 99, 110, 477 A.2d 1257 (1984).

The Legislature has expressed the intent to enforce child support orders. For 132*132 example, wage garnishments served on an employer for child support take super priority over money judgments. N.J.S.A. 2A:17-52. In addition, N.J.S.A. 2A:17-56.8 provides a host of enforcement mechanisms for child support.

Parents are entitled to the "services and earnings" of their children. N.J.S.A. 9:1-1. Child support is typically paid by the other parent from the other parent's services and earnings. In this case the child support order shows the calculation of child support was based on each parent's earnings.

When an adult parent enters into a contract, the contract is ordinarily enforceable like any other contract entered into by an adult. Allgor v. Travelers Ins. Co., 280 N.J. Super. 254, 262, 654 A.2d 1375 (App. Div. 1995). A contract entered into by a minor is not ordinarily enforceable because a minor can disaffirm the contract. Ibid. However, a minor that enters into a contract for student loans and financial aid is considered to be subject to a binding contract. N.J.S.A. 9:17A-2.

Money owed to someone else, including by a parent, cannot be pursued against an innocent owner, including a child. Unless there is some way to show that a child is liable on a debt, which is a covered type of expense for which the judgment or order for child support is meant, that money is not subject to levy because there is already an order or judgment directing the use of that money for the benefit of the child.

Notably, the I.R.S. does not levy on money due and owing for child support. 26 U.S.C. § 6334 lists a number of exemptions from levy for taxes. Subsection (a)(8) exempts:

Judgments for support of minor children. If the taxpayer is required by judgment of a court of competent jurisdiction, entered prior to the date of levy, to contribute to the support of his minor children, so much of his salary, wages, or other income as is necessary to comply with such judgment.

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Defendant advised that the levy was on a checking account and a savings account. Two transfers from checking to savings totaled $825, and the two transfers were made within a few days of the payment of child support reflected on the probation departments child support account statement. The two child support payments were $515.67 each. Defendant testified that the transferred money was child support money. The remainder of the money in the savings account was either interest or from an unknown source. Whether child support money should or should not be traced was not a contested issue before the court. That issue is left for another day.

At the time of the levy on the checking account on June 9, 2017, the last three deposits were from payroll and other sources not claimed to be exempt from levy. Those amounts more than covered the amount of the levy several times over. Defendant expressly denied having a wage garnishment on her wages deposited into the checking account.

In addition to the strong policy support that child support is for the benefit of the child, child support money is exempt from levy because the child is an innocent third party and not a judgment debtor. The $825 in the savings account is child support that is exempt from the levy and must be released. The remainder of the money is subject to levy and the motion to turnover is granted as to $302.62.

The objection to levy is granted in part and denied in part. The motion to turnover is granted in part and denied in part.

BANKRUPTCY ARTICLE - LAWYER IN HACKENSACK NEW JERSEY (201) 646-3333

 

LILIANA WILSON, Plaintiff-Respondent,
v.
JAMES WILSON, Defendant-Appellant.No. A-3867-10T2.Superior Court of New Jersey, Appellate Division.Argued December 13, 2011.Decided October 23, 2012.

Jack Dashosh argued the cause for appellant.

Tadd J. Yearing argued the cause for respondent (Townsend, Tomaio & Newmark, L.L.C., attorneys; Mr. Yearing, on the brief).

Before Judges Carchman and Nugent.

NOT FOR PUBLICATION

PER CURIAM.

Defendant James Wilson appeals from parts of a January 28, 2011 Family Part order that: adjudicated defendant in violation of litigant's rights because of his partial non-compliance with the parties' Supplemental Judgment of Divorce (SJOD); compelled him to make certain payments to plaintiff as required by the SJOD and previous court orders; entered judgment against him for counsel fees that the court had previously ordered him to pay to plaintiff; and required him to communicate with plaintiff about certain issues concerning their child. Defendant also appeals from the denial of his motion for reconsideration. The parties' dispute concerning the building in Romania appears to be moot as the result of bankruptcy proceedings. Otherwise, we affirm.

The parties married on October 23, 1993, and were divorced on April 14, 2009, when the court entered a Final Judgment of Divorce. The court entered a SJOD on June 1, 2010. Among its terms, the SJOD required the parties to continue to attempt to sell a boat they had listed for $139,900, and to divide the net proceeds upon its sale; provided that defendant would sell his business and its European counterparts, and, upon its sale, pay to plaintiff thirty-five percent of the net proceeds; and required that defendant sell a commercial building in Romania and pay to plaintiff an equal share of the net sale proceeds. The SJOD also required defendant to pay plaintiff annual alimony of $30,000 for seven years, provided that the parties would share joint legal custody of their child, denoted defendant as the parent of primary residence, and established a parenting time schedule, as well as child support obligations.

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On October 23, 2009, after considering cross-motions the parties had filed, the trial court found defendant in violation of litigant's rights for not adhering to the parenting time schedule. Among other forms of relief, the court directed defendant to pay $7,075 representing plaintiff's counsel fees.

Additional motion practice ensued. In December 2010, plaintiff filed another motion to enforce litigant's rights. The court granted that motion in an order entered on January 28, 2011, supported by a written statement of reasons. Defendant filed a motion for reconsideration, which the court denied on March 18, 2011. Defendant appealed from those orders.

Following the filing of defendant's notice of appeal, plaintiff filed a Chapter 7 bankruptcy petition. It appears that during the bankruptcy proceeding, the trustee accepted defendant's offer to pay $35,000 to buy out plaintiff's interest in the building in Romania.^[1]

Defendant raises the following issues on appeal:

THE COURT ERRED BY NOT DELETING THE FOLLOWING PARAGRAPHS OF ITS JANUARY 28, 2011 ORDER, SPECIFICALLY:

1) PARAGRAPH 1 OF THE ORDER WHICH FOUND DEFENDANT IN VIOLATION OF LITIGANT'S RIGHTS FOR FAILURE TO COMPLY WITH THE SUPPLEMENTAL JUDGMENT OF DIVORCE (SJOD) FILED ON JUNE 1, 2010, AND THE COURT ORDERS OF OCTOBER 23, 2009, MARCH 12, 2010 AND JUNE 28 2010, WHICH REQUIRED DEFENDANT TO NOTIFY PLAINTIFF IN WRITING OF THEIR SON[`s] EXTRA CURRICULAR SCHOOL ACTIVITIES WITHOUT ANY FACTUAL BASIS FOR THE SAME.

2) THE PORTION OF PARAGRAPH 3 THAT REQUIRED DEFENDANT TO PROVIDE PLAINTIFF WITH AN UPDATED CASE INFORMATION STATEMENT INCLUDING HIS 2010 W-2'S, 1099'S AND 2009 FEDERAL, STATE AND BUSINESS TAX RETURNS DESPITE THE FACT THAT COMMENCING FEBRUARY 11, 2011 DEFENDANT HAS PAID PLAINTIFF THE SUM OF $2,000 PER MONTH TOWARD THE $49,919.45 THE COURT AWARDED PLAINTIFF AS HER SHARE OF DEFENDANT'S BUSINESS.

3) PARAGRAPH 4 OF THE ORDER WHICH REQUIRED DEFENDANT TO PURCHASE PLAINTIFF'S INTEREST IN THE ROMANIAN REAL ESTATE AND WHICH REQUIRED DEFENDANT TO PROVIDE AN UPDATED CASE INFORMATION STATEMENT.

4) PARAGRAPH 8 OF THE ORDER WHICH REQUIRED DEFENDANT TO REIMBURSE PLAINTIFF THE SUM OF $4,000 REPRESENTING ONE-HALF OF THE TOTAL COST PAID BY THE PARTIES TO ATTEND THE OVERCOMING BARRIERS PROGRAM IN JULY 2010.

5) PARAGRAPH 9 OF THE ORDER WHICH REQUIRED DEFENDANT TO PAY PLAINTIFF THE SUM OF $7,075 IN COUNSEL FEES AWARDED TO HER IN THE OCTOBER 23, 2009 COURT ORDER DESPITE THE FACT THAT THERE WAS NO STATEMENT REGARDING THE BASIS FOR AWARDING THE SAME AND CONTRARY TO THE SUPPLEMENTAL JUDGMENT OF DIVORCE WHICH WAIVED ALL OF THE PARTIES' CLAIMS FOR LEGAL FEES.

6) PARAGRAPH 13 OF THE ORDER WHICH DIRECTS DEFENDANT TO NOTIFY PLAINTIFF WITHIN MINUTES OF MEDICAL EMERGENCIES INVOLVING [A.] AND THAT DEFENDANT REFRAIN FROM MAKING NEGATIVE COMMENTS TO [A.] REGARDING PLAINTIFF WITHOUT ANY FACTUAL BASIS FOR THE SAME.

7) THE COURT IMPROPERLY DETERMINED THAT PLAINTIFF IS ENTITLED TO RECEIVE ONE-HALF THE VALUE OF THE ROMANIAN REAL ESTATE AS OF APRIL 14, 2009 BECAUSE OF DEFENDANT'S FAILURE TO LIST THE PROPERTY FOR SALE, WHICH WAS FACTUALLY INCORRECT AND IS CONTRARY TO THE JUNE 1, 2010 JUDGMENT OF DIVORCE.

We first address the effect of the bankruptcy proceeding on the issue raised by defendant concerning plaintiff's interest in the building in Romania. Under federal law, when a debtor files a bankruptcy petition, an estate is created and the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C.A. § 541(a)(1). Thus, plaintiff's equitable interest in the building in Romania was part of the bankruptcy estate. See Reid v. Reid, 310 N.J. Super. 12, 20 (App. Div.), certif. denied, 154 N.J. 608 (1998); Colucci v. Colucci, 251 N.J. Super. 73, 78 (Ch. Div. 1991). Generally, "[t]he trustee, after notice and a hearing, may... sell... property of the estate...." 11 U.S.C.S. § 363(b)(1). That is precisely what happened in this case. The sale appears to render moot defendant's issue concerning plaintiff's interest.

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In her supplemental brief, plaintiff argues that the bankruptcy trustee sold her equitable interest in the building in Romania for considerably less than its actual value. Plaintiff has not argued that she was denied a fair opportunity in the bankruptcy proceeding to contest the sale of her interest or challenge the building's value, however. Nor has she attempted to demonstrate how the outcome of the bankruptcy proceeding would have differed had her interest been sold for a greater sum. Under those circumstances, we deem the narrow issue raised by defendant on this appeal — that the trial judge erred by requiring defendant to purchase plaintiff's interest in the Romanian real estate — moot.

After considering defendant's remaining arguments in light of the record and applicable law, we affirm, substantially for the reasons explained by the trial court in the written statements supporting the January 28 and March 18, 2011 orders.

In summary, we deem the issue concerning defendant buying out plaintiff's interest in the Romanian real estate to be moot. We affirm in all other respects.

[1] During oral argument we permitted plaintiff to submit a supplemental letter brief to address the effect of the bankruptcy proceedings on plaintiff's right to equitable distribution of the property in Romania. Plaintiff and defendant both submitted supplemental letter briefs. Although it appears that the bankruptcy trustee disposed of plaintiff's interest in the property, the documents submitted by the parties are uncertified and incomplete.

BANKRUPTCY ARTICLE - ATTORNEY IN HACKENSACK NEW JERSEY (201) 646-3333

MONEY ISLAND MARINA, LLC, Plaintiff-Appellant,
v.
ROGER MAURO and LOIS MAURO, their heirs, devisees, and personal representatives, and his, her, their, or any of their successors in right, title, and interest, Defendants-Respondents.

No. A-2950-14T3.

Superior Court of New Jersey, Appellate Division.

Submitted April 19, 2016.Decided April 25, 2016.

Terance J. Bennett, attorney for appellant.

The D'Elia Law Firm LLC, attorneys for respondents (Teresa M. Lentini, on the brief).

Before Judges Fisher and Espinosa.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In this appeal, plaintiff Money Island Marina, LLC (MIM) argues that the findings made by the trial judge in dismissing its claims at the conclusion of a bench trial were either based on erroneous legal rulings or were contrary to the weight of the evidence. Finding no error, we affirm.

The issues posed in this civil action are limited and discrete. MIM, a limited liability company ostensibly controlled by Tony Novak (Novak),^[1] seeks a declaration, by way of this quiet title action, that defendant Lois Mauro's mortgage on the property should be invalidated or have no further impact on its ownership rights. MIM argues, however, that the case should be considered in light of other circumstances, some of which have been resolved in other proceedings. That is, MIM contends that defendant Roger Mauro (Mauro) assaulted Novak by vehicle in 2006 and that this circumstance, and the resulting personal injury action he commenced, should have been more fully considered in the disposition of this quiet title action. We described the vehicular assault allegations in earlier opinions in a criminal matter commenced against Mauro.^[2] In or about 2008, Novak brought a personal injury action against Mauro.^[3]

Of greater relevance to the matter at hand is the fact that in 1995, Mauro purchased a marina in Downe Township and then, on December 12, 2008, sold the marina to Joseph Acosta for $425,000, receiving more than $100,000 in cash and a purchase money mortgage to secure repayment of a note payable to Mauro from Acosta of the principal amount of $313,000.

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Acosta filed a Chapter 7 bankruptcy proceeding on February 28, 2011, and, on April 2, 2012, Mauro assigned the Acosta mortgage to his mother, defendant Lois Mauro (Lois). Lois, as assignee of the mortgage, filed a proof of claim in the Acosta bankruptcy matter on October 16, 2012.

At a hearing in bankruptcy court on November 13, 2012, Novak bid $12,000 to purchase the marina. When the bankruptcy judge asked Novak if he understood the marina is "subject to the mortgage that's on the property," Novak responded, "Yes." An order entered by the bankruptcy court on November 26, 2012, confirmed the sale of the marina to Novak "or his assignee" for $12,000 "subject to all liens, mortgages and encumbrances on the real estate." The next day, the bankruptcy trustee executed a quitclaim deed in MIM's favor; the deed acknowledged that the grantor had made "no promises as to ownership or title, but simply transfers whatever interest the [g]rantor [i.e., the trustee] has to the [g]rantee [i.e., MIM]." This recitation is in accord with what it means to convey a property interest by quitclaim deed. See N.J.S.A. 46:5-3. The quitclaim deed was recorded on December 12, 2012. On May 16, 2013, the bankruptcy court granted the trustee's motion to expunge Lois's proof of claim in light of the fact that the mortgage remained attached to the property transferred to MIM.

On February 14, 2013, MIM, as the assignee of the marina purchased by Novak through the bankruptcy court, filed this quiet title action. A few months later, Novak's personal injury action against Mauro settled; Novak received $5000, and Mauro obtained a general, unconditional release of Novak's claims. Lois commenced an action seeking to foreclose her mortgage on the marina.

MIM's quiet title action and Lois's foreclosure action were both the subject of a single bench trial conducted over the course of two days. The trial judge rightfully expressed in her written opinion that "[t]here is something very odd about this litigation and the manner in which the parties have pursued or defended against claims." For example, MIM claimed that Novak's settlement of the personal injury action somehow provided MIM with ownership of the marina free of the mortgage; however, as the judge observed, the release that memorialized the settlement contains no such condition or agreement, and the judge found no other evidence to support MIM's contention.^[4] And, while Novak may have thought, as the judge stated, that he had "outwitt[ed] the Mauros by outbidding them at the bankruptcy hearing" for the marina, the bankruptcy record clearly demonstrates that the interest in the marina which Novak purchased was taken subject to Lois's mortgage. The judge's findings also demonstrate that Roger's assignment of the mortgage to Lois was supported by adequate consideration; she noted that Mauro's financial circumstances had long been troubled by Acosta's failure to make the monthly payments required by the note and mortgage, as well as his many other legal matters, including those involving Novak, resulting in Lois providing Mauro with $200,000 for his support, for which she was compensated by assignment of the mortgage. The judge's findings, based upon what is both clearly demonstrated by the various documents and transcripts emanating from the bankruptcy proceeding and the personal injury settlement, as well as by the judge's careful assessment of the credibility of the many witnesses, are entitled to our deference. Rova Farms Resort Co. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 483-84 (1974); Stephenson v. Spiegle, 429 N.J. Super. 378, 382 (App. Div. 2013).

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Accordingly, with these few comments, we affirm the dismissal of the quiet title action substantially for the reasons set forth by Judge Anne McDonnell in her well-reasoned written decision.^[5]

Affirmed.

[1] To add to some of the confusion about the underlying circumstances, the actual owner of MIM has not been adequately disclosed. At his deposition, Novak asserted he is MIM's "authorized representative," but he denied knowledge about the identity of the owners, saying: "[w]e are trying to figure it out. We do have a dispute and I do not know." Upon further questioning, he identified one of the disputed owners as his stepson and disclosed without clarity that other members "have since abandoned" ownership or otherwise "disavow[ed] and resign[ed]."

[2] On February 21, 2013, we reversed the trial court's dismissal of the criminal prosecution, finding no violation of Mauro's speedy trial rights. State v. Mauro, No. A-4950-11 (App. Div. Feb. 21, 2013). The Supreme Court later remanded for our reconsideration in light of State v. Cahill, 213 N.J. 253 (2013), but we again came to the same conclusion. State v. Mauro, No. A-4950-11 (App. Div. June 10, 2014).

[3] The date the personal injury complaint was filed is not disclosed in the record on appeal. The filing date, however, is not particularly relevant; we assume the complaint was filed in 2008 because of its docket number.

[4] Indeed, Mauro was no longer the owner of the mortgage; it had been assigned to Lois well before Novak and Mauro settled the personal injury action. The mortgage was not something available to Mauro to negotiate with.

[5] By way of the same written decision, the judge determined that the answer and counterclaim filed by Novak and MIM in Lois's foreclosure action were non-contesting. Consequently, the judge referred the matter to the Office of Foreclosure for entry of final judgment, subject to any dispute about the amount of the judgment or MIM's right to a fair market credit or other equitable relief. MIM does not present an argument here regarding the judge's disposition of the foreclosure issues; indeed, MIM correctly recognizes that, until entry of final judgment in the foreclosure action, it has no right to file a notice of appeal in that regard.

FORECLOSURE ARTICLE - ATTORNEY IN BERGEN COUNTY NEW JERSEY (201) 646-3333

  53 A.3d 673 (2012)

428 N.J. Super. 315

DEUTSCHE BANK TRUST COMPANY AMERICAS, f/k/a Banker's Trust Company, as Trustee, Plaintiff-Respondent,

v.

Yony R. ANGELES, Defendant-Appellant.

No. A-2522-11T1.

Superior Court of New Jersey, Appellate Division.

Argued September 12, 2012.Decided October 11, 2012.

674*674 Gary D. Grant, Florham Park, argued the cause for appellant.

Robert D. Bailey, Vineland, argued the cause for respondent (Zucker, Goldberg & Ackerman, L.L.C., attorneys; Mr. Bailey, of counsel and on the brief).

Before Judges KOBLITZ, ACCURSO and LISA.

The opinion of the court was delivered by

KOBLITZ, J.A.D.

In this residential foreclosure case, Yony R. Angeles appeals from a November 6, 2009 final judgment in favor of Deutsche Bank Trust Company Americas (Deutsche) and a subsequent December 16, 2011 oral order, dismissing his application to vacate the judgment or dismiss the complaint. Angeles argues that because the mortgage on his property was not assigned to Deutsche until two weeks after Deutsche filed the original foreclosure complaint, Deutsche lacked standing and the judgment should be dismissed. Because Angeles did not raise the standing issue, or contest the foreclosure in any way, until two years after default judgment was entered and three-and-one-half years after the complaint was filed, we affirm the decision of the Chancery judge.

On January 10, 2007, Angeles executed a note for the sum of $454,400 with First Equity Financial Corporation (First Equity). To secure payment of the note, Angeles executed a mortgage that same day to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Equity.^[1]

Angeles made the first ten contractual payments on the note, but failed to make the installment payment due on February 1, 2008 or any time thereafter. On May 29, 2008, Deutsche filed a foreclosure complaint, two weeks prior to the June 12, 2008, assignment of the mortgage by MERS to Deutsche. The complaint states that "[o]n or before the date the within complaint was drafted, the plaintiff herein became the owner of the note and mortgage being foreclosed herein."

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675*675 On July 23, 2008, Deutsche filed an amended complaint. Angeles was served with the summons and amended complaint on July 26, 2008. He failed to file a responsive pleading and a default was entered on September 11, 2008. Final judgment of foreclosure was entered more than a year later on November 6, 2009.

On February 25, 2010, the court stayed the sheriff's sale scheduled for the following day until May 28, 2010, and ordered the parties to participate in the court-sponsored mediation program.^[2] Mediation apparently failed, as Deutsche purchased the property at a sheriff's sale on August 20, 2010. Angeles did not object to the sale at that time. See R. 4:65-5 (requiring any objection to be made within ten days after the sheriff's sale or any time prior to the delivery of the deed). The deed was delivered by the sheriff to Deutsche and recorded on September 16, 2010.

The court granted Angeles' May 16, 2011 hardship application to stay the eviction so that his children could complete the school year. Deutsche subsequently stayed the eviction further in an attempt to negotiate a short sale of the property back to Angeles.

After negotiations failed, Angeles filed an order to show cause on November 16, 2011, seeking to: (1) vacate the sheriff's sale; (2) enjoin Deutsche from conveying title; and (3) permit Angeles to either file an answer to Deutsche's foreclosure complaint or, alternatively, dismiss the complaint for lack of standing. After this application was denied, the eviction and lock-out were completed on January 3, 2012.^[3]

In his appeal, Angeles relies on our recently decided case of Deutsche Bank National Trust Co. v. Mitchell, 422 N.J.Super. 214, 27 A.3d 1229 (App.Div. 2011), asserting that the facts are similar. In Mitchell, we held that either possession of the note or an assignment of the mortgage that predated the original complaint conferred standing. Id. at 216, 225, 27 A.3d 1229. We determined that an amended complaint can not cure an initial lack of standing. Ibid.

In Mitchell, however, the defendant actively engaged in the litigation, filing an answer and counterclaims in response to the plaintiff's foreclosure complaint. Id. at 220, 27 A.3d 1229. The defendant also contested the plaintiff's standing to file the foreclosure complaint long before the end of the litigation. Id. at 220-21, 27 A.3d 1229.

Rule 4:50-1 governs an applicant's motion for relief from default when the case has proceeded to judgment. U.S. Bank Nat'l Assoc. v. Guillaume, 209 N.J. 449, 466, 38 A.3d 570 (2012). The Guillaume Court explained that "[t]he rule 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.'" Id. at 467, 38 A.3d 570 (quoting Mancini v. EDS, 132 N.J. 330, 334, 625 A.2d 484 (1993)).

A reviewing court must accord "substantial deference" to a trial court's 676*676 determination under the rule and its decisions will be left undisturbed "unless [they] result[] in a clear abuse of discretion." Ibid. (citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261, 966 A.2d 1036 (2009)). "[A]n abuse of discretion occurs when a decision is `made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Id. at 467-68, 38 A.3d 570 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123, 922 A.2d 710 (2007)).

In the context of a foreclosure case, the Guillaume Court reiterated the grounds on which a party may seek to vacate a default judgment pursuant to Rule 4:50-1. The grounds are:

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and for which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

[Id. at 467, 38 A.3d 570 (quoting R. 4:50-1).]

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Motions made under any Rule 4:50-1 subsection "must be filed within a reasonable time." See Orner v. Liu, 419 N.J.Super. 431, 437, 17 A.3d 266 (App.Div.), certif. denied, 208 N.J. 369, 29 A.3d 741 (2011) (citing Bascom Corp. v. Chase Manhattan Bank, 363 N.J.Super. 334, 340, 832 A.2d 956 (App.Div.2003)). In addition, Rule 4:50-2 bars relief outright to "motions based on Rule 4:50-1(a), (b) and (c)" when filed "`more than one year after the judgment, order or proceeding was entered or taken.'" Id. at 436-37, 17 A.3d 266 (quoting R. 4:50-2).

Angeles argues under Rule 4:50-1(d) that the final judgment is void for lack of standing. Although he has raised a valid concern, since the complaint was filed prior to the assignment of mortgage, he has not definitively demonstrated a lack of standing. Deutsche may well have had possession of the note, conferring standing, at the time it filed the original complaint.^[4] We remanded the matter in Mitchell in order for the trial court to determine whether the plaintiff had possession of the note or another basis to achieve standing when the original foreclosure complaint was filed. Mitchell, supra, 422 N.J.Super. at 225, 27 A.3d 1229; see also N.J.S.A. 12A:3-101 to -605.

In foreclosure matters, equity must be applied to plaintiffs as well as defendants. Defendant did not raise the issue of standing until he had the advantage of many years of delay. Some delay stemmed from the New Jersey foreclosure system, other delay was afforded him through the equitable powers of the court, and additional delay resulted from plaintiff's attempt to amicably resolve the matter. Defendant at no time denied his responsibility for the debt incurred nor can he reasonably argue that Deutsche is not the party legitimately in possession of the property. Rather, when all hope of further delay expired, after his home was sold and he was evicted, he made a last-ditch effort to relitigate the case. The trial court did not abuse its discretion in determining that defendant 677*677 was not equitably entitled to vacate the judgment.

Affirmed.

[1] Angeles also executed a second mortgage on the property to MERS, as nominee for First Equity, in the amount of $113,600.

[2] The New Jersey Judiciary Foreclosure Mediation Program was implemented to handle the increased number of foreclosure proceedings. Press Release, New Jersey Office of the Attorney General, Statewide Mortgage Foreclosure Mediation Program Launched (Jan. 9, 2009), available at http://www.nj.gov/oag/newsreleases09/pr20090109a.html.

[3] On January 26, 2012, we denied Angeles' emergent application for a stay of the then-pending sale of the property to a third party. For other reasons, that sale was not completed.

[4] As we stated, the original complaint alleged that plaintiff had possession of the note at the time of filing. Defendant has never challenged that assertion.

 

These Student Loans Are Not Covered By DeVos’s Extension Of Relief

Adam S. Minsky, Esq.

On Friday, Education Secretary Betsy DeVos announced an extension of the moratorium on student loan payments, interest, and collections to January, 31, 2021.

This additional month provides critical relief to millions of student loan borrowers struggling with repayment and averts an imminent “cliff” on December 31, when the relief was originally scheduled to expire. It gives Congress additional time to potentially extend the relief further into 2021 as part of larger stimulus negotiations. And it provides President-Elect Biden, who would be sworn in on January 20, with the opportunity to enact further relief through executive action if necessary.

But not all student loans are covered by DeVos’s extension. Here’s why.

The current moratorium on student loan payments, interest, and collections is a result of the CARES Act — bipartisan legislation that was enacted in March to provide economic relief in response to the COVID-19 pandemic. But the language in the CARES Act limited student loan relief only to government-held federal student loans. This includes federal Direct loans, and a small number of other types of federal loans that were acquired by, or assigned to, the U.S. Department of Education.

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But a large volume of student loans were excluded from the CARES Act’s provisions. Three main categories of loans are excluded:

• Loans administered by the Family Federal Education Loan (FFEL) program. FFEL loans are federal loans originated by a private lender, but ultimately backed or guaranteed by the federal government. The FFEL program was discontinued in 2010, but there was still many borrowers who are repaying FFEL-program loans.
• Perkins loans are federal loans originated by colleges and universities. They are neither Direct nor FFEL loans, and are not protected by the CARES Act.
• Private student loans are purely private with no federal backing, and are issued and administered by banks and other commercial lending entities.

Because DeVos limited the extension of student loan relief to the existing moratorium under the CARES Act, the relief was not expanded to cover these other loan programs.

There is roughly $300 billion in outstanding student loans that are ultimately left out of the relief, according to the Student Borrower Protection Center. Of that, around there is $160 billion in privately-owned FFEL loans, $5 billion in Perkins loans, and $133 billion in private student loans.

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Congressional Democrats have been pushing to expand the CARES Act protections to cover FFEL loans and Perkins loans. Progressive lawmakers have also pushed for broad private student loan forgiveness, as well. The HEROES Act, which passed the House of Representatives on a largely party line vote in May, would have provided for up to $10,000 in private student loan forgiveness for borrowers in economic distress. But so far, these efforts have run into opposition in the Republican-controlled Senate.

A bipartisan group of senators unveiled a new, $900 billion stimulus bill last week designed to revive efforts to reach a compromise on broad economic relief before the end of the year. Included in this proposal is $4 billion dedicated to student loan relief. While this allocation of federal funds could be sufficient to cover an additional extension of the student loan moratorium further into 2021, specific details regarding student debt relief have yet to be disclosed, and it is not yet clear whether the current relief could be expanded to include the other types of student loans.