NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION

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DOCKET NO. A-1422-09T2

WACHOVIA BANK, N.A.,

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Plaintiff-Respondent,

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v.

GREGORY WRIGHT a/k/a

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GREG WRIGHT, MRS. GREGORY
WRIGHT, his wife, and
LAKES AT LARCHMONT

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CONDOMINIUM ASSOCIATION,

Defendants, su
and
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MORTGAGE ELECTRONIC REGISTRATION
SYSTEMS, INC.,

Defendant-Appellant.
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_______________________________

Submitted March 2, 2011 - Decided May 12, 2011

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Before Judges Lihotz and J. N. Harris.

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On appeal from the Superior Court of New

Jersey, Chancery Division, Burlington
County, Docket No. F-41972-08.
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Purcell, Mulcahy, O'Neill & Hawkins, LLC,

attorneys for appellant, U.S. Bank National
Association, as successor in interest to
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Mortgage Electronic Registration Systems,

Inc. (Elizabeth Callaghan Flanagan, of
counsel and on the brief; Alyssa K.
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Weinstein, on the brief).

Respondent has not filed a brief.

PER CURIAM

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U.S. Bank National Association (US Bank), as successor in

interest to defendant Mortgage Electronic Registration Systems,

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Inc. (MERS), appeals from a Chancery Division order denying its

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request to vacate the default judgment against it and

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foreclosing the interest of MERS in residential realty.1 We

affirm.

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These facts are taken from the motion record. Defendant

Gregory Wright purchased real property on Albridge Way in Mt.

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Laurel Township (the subject realty) on September 2, 2003. On
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December 2, 2005, Wright contracted with JP Morgan Chase, N.A.

(Chase) for a mortgage and a line of credit secured by a second

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mortgage on the subject realty. On August 9, 2006, Wright

refinanced the Chase debts and withdrew additional equitable

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value from the realty. He borrowed $210,000 from MERS through

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its agent, Accredited Home Lenders, Inc. (AHL). Inexplicably,

the MERS mortgage was not recorded for over a year, until
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September 17, 2007.

On September 18, 2006, one month following the refinance

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with MERS, Wright executed a line of credit with plaintiff

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1
The Notice of Appeal suggests US Bank had not received a
conformed copy of the Chancery court's initial order dated
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October 9, 2009. Apparently, following Wright's bankruptcy

proceeding, a new order was executed and filed on January 8,
2010.

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Wachovia Bank. N.A. (Wachovia) in the amount of $182,700,

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secured by a mortgage on the subject property. Wright's loan

application did not list the MERS transaction. Wachovia

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recorded its mortgage on October 27, 2006. On June 4, 2007,

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Wright executed a home equity mortgage with Wachovia, also

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secured by the property and recorded on June 21, 2007.

Wright defaulted on his Wachovia debts prompting Wachovia

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to seek foreclosure. Wachovia filed this action on October 23,

2008. MERS was named as a defendant and was served by certified

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and first class mail at its Florida corporate offices. On
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November 14, 2008, MERS assigned the mortgage to US Bank as

Trustee for an investment pool. The assignment was recorded on

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December 10, 2008. When MERS did not answer, Wachovia filed a

request for default on December 22, 2008, followed by a request

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for entry of final judgment.

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On August 19, 2009, US Bank entered an appearance in

Wachovia's foreclosure action. US Bank moved to amend the

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action to list it as the proper party in interest rather than

MERS and to vacate the default. On August 31, 2009, the final
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judgment was entered in favor of Wachovia foreclosing the

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interest of all others. US Bank's motion was heard on October

9, 2009. Judge Michael Hogan denied U.S. Bank's request to

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vacate the default judgment, finding MERS was properly served

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prior to assigning the instrument to US Bank and noting a

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meritorious defense to the relief sought had not been presented.

This appeal ensued. Thereafter, the court stayed a

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sheriff's sale pending appeal. We note Wachovia has chosen not

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to participate in this appeal.

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"Although courts are empowered to confer absolution from

judgments," relief from a final judgment under Rule 4:50-1 "is

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granted sparingly." DEG, LLC v. Twp. of Fairfield, 198 N.J.

242, 261 (2009) (internal quotation marks and citations

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omitted). "A motion under Rule 4:50-1 is addressed to the sound

discretion of the trial

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court, which should be guided by

equitable principles in determining whether relief should be

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granted or denied." Hous. Auth. of Morristown v. Little, 135

N.J. 274, 283 (1994). See also Orner v. Liu, __ N.J. Super. __
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(App. Div. 2011) (slip op. at 5). We will not disturb a trial
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court's determination to grant or deny an application to open a

judgment "unless it represents a clear abuse of discretion."

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Little, supra, 135 N.J. at 283. In our review we do not "decide

whether the trial court took the wisest course, or even the
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better course, since to do so would merely be to substitute our

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judgment for that of the lower court. The question is only

whether the trial judge pursued a manifestly unjust course."

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Gittleman v. Cent. Jersey Bank & Trust Co., 103 N.J. Super. 175,

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179 (App. Div. 1967), rev'd on other grounds, 52 N.J. 503

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(1968).

"[T]he rule is a carefully crafted vehicle intended to

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underscore the need for repose while achieving a just result.

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It thus denominates with specificity the narrow band of

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triggering events that will warrant relief from judgment if

justice is to be served." DEG, supra, 198 N.J. at 261.

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Included among the bases for relief, the rule recites "the

court may relieve a party or the party's legal representative

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from a final judgment or order for . . . mistake, inadvertence,
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surprise, or excusable neglect; . . . or . . . any other reason

justifying relief from the operation of the judgment or order."

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R. 4:50-1(a) and (f). US Bank relies upon this provision,

asserting the failure to answer Wachovia's complaint was a

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matter of excusable neglect and Judge Hogan abused his

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discretion in denying its motion. To avail itself of relief

under Rule 4:50-1(a), U.S. Bank must show that its neglect "was
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excusable under the circumstances and that [it had] a

meritorious defense." Marder v. Realty Constr. Co., 84 N.J.

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Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964).

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"Excusable neglect" under Rule 4:50-1(a) has been defined as

carelessness "attributable to an honest mistake that is

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compatible with due diligence or reasonable prudence." Mancini

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v. EDS, 132 N.J. 330, 335 (1993).

US Bank argues that by the time it learned of Wachovia's

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foreclosure, default had already been entered. We are not

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persuaded.

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First, although the complaint was filed when MERS was the

lienholder of record, US Bank knew or should have known of

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Wachovia's litigation. While the recordation of its assignment

of the mortgage interest was pending, US Bank actually filed its

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own foreclosure complaint on November 17, 2008, to which
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Wachovia answered, contesting US Bank's assertion of a priority

position.2 US Bank knew of Wachovia's mortgage and knew it had

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been recorded prior in time to the debt it held. Further, US

Bank should have known Wachovia's lis pendens had been recorded
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on November 5, 2008. Therefore, ordinary due diligence would

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have discovered the pending litigation.

Additionally, had US Bank filed its motion earlier, at the

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time it recorded its assignment on December 10, 2008, the motion

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2
US Bank commenced a foreclosure action when Wright
defaulted on his debt. In addition to Wright and his spouse,
Wachovia was named as a defendant. The complaint was dismissed
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in February 2009 for not complying with the Fair Foreclosure Act
(FFA), N.J.S.A. 2A:50-53 to -68, notice requirements. Under the
FFA, a residential mortgage lender must serve a notice of
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intention to file foreclosure proceedings, "by registered or

certified mail, return receipt requested" prior to commencing
suit. N.J.S.A. 2A:50-56(a) and (b).

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would have been more favorably reviewed, as a request to vacate

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entry of default is subject to a less stringent standard than

that imposed by Rule 4:50-1 to vacate a default judgment.

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Pressler & Verniero, Current N.J. Court Rules, comment on R.

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4:43-3 (2011); see R. 4:43-3 (stating entry of default shall be

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set aside upon good cause shown). US Bank's failure to move for

relief for more than nine additional months is not excusable.

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US Bank also suggests it has complied with the requisites

for relief pursuant to R. 4:50-1(f). We disagree.

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The catch-all provision of the Rule defies simple

categorization.
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Court Inv. Co. v. Perillo, 48 N.J. 334, 341

(1966). Application of subsection (f) is restricted to

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"'exceptional situations.'" Mancini, supra, 132 N.J. at 336

(quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)). As the

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Supreme Court explained, "the very essence of (f) is its

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capacity for relief in exceptional situations. And in such

exceptional cases its boundaries are as expansive as the need to

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achieve equity and justice." Perillo, supra, 48 N.J. at 341;

see Baumann, supra, 95 N.J. at 395 ("[E]ach case must be

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resolved on its own particular facts."). The purpose of

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subsection (f) is to afford relief when enforcement of a

judgment would be unjust, oppressive, or inequitable. Quagliato

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v. Bodner, 115 N.J. Super. 133, 138 (App. Div. 1971).

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 It is undisputed that Wachovia served MERS, not US Bank,

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with the foreclosure complaint. Unlike the portrait attempted

to be painted, however, US Bank learned early on of Wachovia's

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claimed superior title, when it had filed for foreclosure. The

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title search immediately prior to its initiation of litigation

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would have revealed Wachovia's filed lis pendens. The failure

to react to this information is far from extraordinary.

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We additionally reject US Bank's unsupported contention

that service upon MERS's corporate offices, rather than its New

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Jersey registered agent, defeated the propriety of the service.
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US Bank did not deny MERS received the complaint. Moreover, as

demonstrated by the time frame of events, it became aware of

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Wachovia's interest and should have been aware of its lawsuit.

Finally, US Bank's claims of a meritorious defense, "the

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strength of which can only be developed through discovery[,]"

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ring hollow. The arguments offered are speculative, not even

rising to a colorable defense to Wachovia's claims.

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US Bank has failed to establish its entitlement to relief

under Rule 4:50-1. The arguments advanced do not support a

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conclusion that the judgment should be vacated because of

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excusable neglect or that its enforcement would be unjust,

oppressive, or inequitable. We conclude, as did Judge Hogan,

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that US Bank failed to set forth a claim for relief to set aside

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the final judgment of foreclosure.

Affirmed.

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