                                 NOT FOR PUBLICATION WITHOUT THE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
     internet, this opinion is binding only on the 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-2448-17T1

JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,

          Plaintiff-Respondent,

v.

GEORGE MCCANTS,

          Defendant-Appellant,

and

ERIN MCCANTS; MRS. MCCANTS,
Wife of George McCants.,

          Defendant.


                   Submitted February 11, 2019 – Decided March 6, 2019

                   Before Judges Gooden Brown and Rose.

                   On appeal from Superior Court of New Jersey,
                   Chancery Division, Essex County, Docket No. F-
                   015420-17.

                   George McCants, appellant pro se.
            McCalla Raymer Leibert Pierce, LLC, attorneys for
            respondent (Brian P. Scibetta, on the brief).

PER CURIAM

      The sole issue presented in this residential mortgage foreclosure case is

whether the trial court erred in denying defendant homeowner's motion to vacate

default, where lack of service, standing, and fraud in the loan's origination are

claimed. Having considered the record in light of the applicable law, we affirm

the trial court's December 15, 2017 order.

      We glean the following facts and procedural history from the pleadings

and the motion record.     On October 30, 2006, defendant George McCants

borrowed $199,200 from First National Bank of Arizona (First National

Arizona), and signed a note memorializing the loan. The same day, defendant

and his wife, Erin McCants 1 granted a mortgage for the same amount to

Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First

National Arizona, securing his residence in Newark. The mortgage was duly

recorded on November 22, 2006 in the Essex County Clerk's Office (ECCO).


1
  Plaintiff acknowledges codefendant Erin McCants "does not have a recorded
ownership interest" in the property; only executed the mortgage and not the note;
and "is not personally obligated to pay the sums secured by the mortgage . . . ."
Because she is not a party to this appeal, we refer to defendant in the singular in
our opinion.


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                                        2
        On February 27, 2009, defendant and Chase Home Finance, LLC,

plaintiff's former servicing arm, executed a loan modification agreement,

effective March 1, 2010. Defendant defaulted on the loan as of January 1, 2015.

It is undisputed that plaintiff sent defendant a notice of intent (NOI) to foreclose

the loan, and defendant failed to cure the default.

        By assignment of mortgage executed on February 27, 2017, MERS

assigned the mortgage to plaintiff (2017 assignment). The 2017 assignment was

duly recorded on March 17, 2017 in the ECCO.2

        The foreclosure complaint was filed on June 22, 2017, reciting the

aforementioned history, and was served on defendant by a process server on

June 26, 2017 at 4:40 p.m. The affidavit of service notes that service was

effected by leaving a copy of the complaint with defendant's wife, Erin McCants,

described as a thirty-seven-year-old black female with black hair, who is five

feet ten inches tall and weighs 190 pounds.

        On July 5, 2017, defendant filed a pro se 3 complaint in the Law Division

against First National Arizona and MERS, alleging "fraud in [the] mortgage ,


2
   For unspecified reasons, the record also indicates MERS assigned the
mortgage to plaintiff on August 17, 2009, which was duly recorded in the ECCO
on September 17, 2009.
3
    Defendant was self-represented throughout the trial court proceedings.
                                                                            A-2448-17T1
                                         3
. . . lack of standing/wrongful foreclosure, fraud in the concealment, fraud in the

inducement, unconscionable contract, breach of contract, [and] breach of

fiduciary duty." Defendant did not, however, file an answer to the foreclosure

complaint. Accordingly, default was entered on August 10, 2017.

      Before final judgment was entered, defendant filed a motion to dismiss

the foreclosure complaint on September 7, 2017. In its cogent statement of

reasons accompanying an October 18, 2017 order denying the motion, the trial

court initially noted the motion was procedurally defective because defendant

had not first filed a motion to vacate default pursuant to Rule 4:43-3.

      Nonetheless, the court considered defendant's motion "as if it were a

motion to vacate default." Finding defendant had not demonstrated any of his

defenses had merit, the court denied the motion.         In particular, the court

determined defendant failed "to rebut the presumption of valid service" where,

as here, "[d]efendant presented nothing more than an unauthenticated driver's

license and his uncorroborated statement to support his claim that service was

defective."

      Thereafter, plaintiff filed its motion for final entry of judgment. The

following day, defendant attempted to file an answer, which apparently was

rejected by the clerk's office because defendant remained in default. Defendant


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                                        4
then filed a motion to vacate default judgment, claiming "defective service, . . .

lack [of] standing, chain of title issues, fraud and collusion."

      Following oral argument on December 15, 2017, the trial court noted that,

because judgment had not been entered, defendant's application would be

considered as a motion to vacate default. The court then reiterated its October

18, 2017 decision "that there was an insufficient basis to vacate the default based

upon claims of improper service."        Further, because the 2017 assignment

preceded the filing of plaintiff's complaint, the court found plaintiff

demonstrated standing. Finally, the court recognized that although defendant's

fraud claim might be barred on statute of limitations grounds, defendant filed a

separate action alleging fraud against the loan's originator in the Law Divisi on.

      In sum, although the trial court acknowledged motions to vacate default

are granted "with great liberality[,]" it declined to grant such relief here, where

defendant failed to provide new evidence to support any of his defenses "ranging

from standing to fraud to misrepresentation." As such, defendant did not

establish "good cause" under Rule 4:43-3.

      On December 28, 2017, the court entered final judgment of foreclosure.

This appeal followed. As stated in his brief, defendant raises the following

points for our consideration:


                                                                           A-2448-17T1
                                         5
               I. THE TRIAL COURT ERRED IN BREACH OF
               DUTY TO CONTRACT LAW WITH UCC [§] 1-103.6.

               II. THE TRIAL COURT ERRED IN DISMI[]SSING
               THE DEFECTIVE SERVICE.

      We discern from defendant's merits brief that he claims the court erred in

denying his motion to vacate default because the summons and complaint were

not properly served, plaintiff did not have standing to file the foreclosure

complaint, and the loan was fraudulent. Defendant has not appealed the court's

finding as to the adequacy of the NOI, or entry of the final judgment of

foreclosure.

      We review the denial of a motion to vacate default based on an abuse of

discretion standard. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467

(2012). Pursuant to Rule 4:43-3, a court may vacate entry of default upon "good

cause shown." "[T]he requirements for setting aside a default under Rule 4:43-

3 are less stringent than . . . those for setting aside an entry of default judgment

under Rule 4:50-1." N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J.

Super. 354, 360 (App. Div. 2009). "[G]ood cause . . . requires the exercise of

sound discretion by the court in light of the facts and circumstances of the

particular case." O'Connor v. Altus, 67 N.J. 106, 129 (1975) (citation omitted).




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                                         6
      In considering whether good cause exists, courts generally consider the

movant's "absence of any contumacious conduct" and the presence of a

meritorious defense. Ibid. In particular, "the showing of a meritorious defense

is a traditional element necessary for setting aside both a default and a default

judgment . . . ." Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:43-

3 (2019). As with a motion to vacate a default judgment, there is no point in

setting aside an entry of default if the defendant has no meritorious defense.

"The time of the courts, counsel and litigants should not be taken up by such a

futile proceeding." Guillaume, 209 N.J. at 469 (citation omitted). We have

noted,

            This is especially so in a foreclosure case where the
            mere denominating of the matter as a contested case
            moves it from the expeditious disposition by the Office
            of Foreclosure in the Administrative Office of the
            Courts, R. 1:34-6 and R. 4:64-1(a), to a more protracted
            treatment by the Chancery Division providing
            discovery and raising other problems associated with
            trial calendars. If there is no bona fide contest, a
            secured creditor should have prompt recourse to its
            collateral.

            [Trs. of Local 478 Trucking & Allied Indus. Pension
            Fund v. Baron Holding Corp., 224 N.J. Super. 485, 489
            (App. Div. 1988).]

      Here, defendant claims the trial court erred by finding he was personally

served with the foreclosure complaint. Specifically, he argues there were errors

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                                       7
in the affidavit of service regarding his wife's age, height, weight, "and [she] has

brown hair as opposed to the affidavit describing her as having black hair" based

on a driver's license.

      To obtain personal jurisdiction, service of process must conform with the

methods of service permitted by the Rules. See generally R. 4:4-4. Pertinent to

this appeal, service is properly effected

             by causing the summons and complaint to be personally
             served within this State pursuant to Rule 4:4-3, as
             follows:

             (1) Upon a competent individual of the age of 14 or
             over, by delivering a copy of the summons and
             complaint to the individual personally, or by leaving a
             copy thereof at the individual's dwelling place or usual
             place of abode with a competent member of the
             household of the age of 14 or over then residing therein
             ....

             [R. 4:4-4(a).]

      "[A] substantial deviation from service of process rules . . . casting

reasonable doubt on proper notice" generally will render a default judgment

void. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App.

Div. 2003). However, a return of service consistent with Rule 4:4-7 "raises a

presumption that the facts recited therein are true." Resolution Tr. Corp. v.

Associated Golf Contractors, Inc., 263 N.J. Super. 332, 343 (App. Div. 1993)


                                                                            A-2448-17T1
                                         8
(citation omitted).    The presumption can be "rebutted only by clear and

convincing evidence that the return is false." Id. at 344 (citation omitted).

"[M]inor flaws in the service of process" are not enough to vacate a default

judgment. Sobel v. Long Island Entm't Prods., Inc., 329 N.J. Super. 285, 292

(App. Div. 2000). Where there is "evidence 'tending to disprove' the presumed

fact, the presumption disappears." Jameson, 363 N.J. Super. at 427 (citation

omitted).

      Here, defendant failed to demonstrate service was ineffective based on

alleged errors concerning his wife's physical attributes in the affidavit of service.

Rather, there is ample support in the record supporting the judge's finding that

service was proper. For example, the address of the premises where service

occurred is the same as that set forth in the note and mortgage. Defendant never

gave notice he moved to another address, despite this requirement in the

mortgage. Indeed, the record is devoid of a sworn statement by defendant's wife

disputing she was served. See Goldfarb v. Roeger, 54 N.J. Super. 85, 90 (App.

Div. 1959) (recognizing "uncorroborated testimony of the defendant alone is not

sufficient to impeach the return"). On this record, we have no reason to disturb

the trial court's finding that the homeowner failed to muster clear, convincing




                                                                             A-2448-17T1
                                         9
proof sufficient to overcome the presumption that he was legally served with the

foreclosure summons and complaint.

        Nor do we discern any merit in defendant's standing argument. Plaintiff

presented evidence of the assignment of the mortgage along with its recording

before the foreclosure complaint was filed, satisfying the requirement that

"either possession of the note or an assignment of the mortgage t hat predated

the original complaint confer[s] standing." Deutsche Bank Tr. Co. Ams. v.

Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Notably, defendant did

not certify that any entity other than plaintiff sought repayment of the mortgage

loan.

        We have considered defendant's remaining arguments in light of the

record and applicable legal principles, and conclude they are without sufficient

merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

        Affirmed.




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                                      10
