                                 NOT FOR PUBLICATION WITHOUT THE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-1724-17T2

U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE
FOR CREDIT SUISSE FIRST
BOSTON MORTGAGE
SECURITIES CORP., HOME
EQUITY ASSET TRUST 2006-1,
HOME EQUITY PASS-THROUGH
CERTIFICATES, SERIES 2006-1,

          Plaintiff-Respondent,

v.

CAROLYN BAILEY,

          Defendant-Appellant,

and

SPRINGLEAF FINANCIAL
SERVICES, INC.,

     Defendant.
_______________________________

                   Argued telephonically February 12, 2019 –
                   Decided June 17, 2019

                   Before Judges Hoffman, Suter and Geiger.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Essex County, Docket No. F-
            020645-14.

            Carolyn Bailey, appellant, argued the cause pro se.

            Siobhan A. Nolan argued the cause for respondent
            (Reed Smith, LLP, attorneys; Henry F. Reichner, of
            counsel and on the brief).

PER CURIAM

      Defendant Carolyn Bailey appeals a December 1, 2017 order of the

Chancery Division that denied her motion to void a final judgment of

foreclosure. We affirm.

                                    I

      Within a year of executing a $207,000 note and mortgage to Columbia

Home Loans, LLC (Columbia), to refinance her home, defendant defaulted on

the loan. Columbia assigned the mortgage to Wells Fargo, N.A. (Wells Fargo),

which later assigned it to plaintiff U.S. Bank National Association as Trustee

for Credit Suisse First Boston Mortgage Securities Corp., Home Equity Asset

Trust 2006-1, Home Equity Pass-Through Certificates, Series 2006-1.

      Wells Fargo filed a foreclosure complaint against defendant in 2006, but

it was dismissed in 2013 without prejudice for lack of prosecution. Plaintiff's

servicer sent defendant a Notice of Intention to foreclose (NOI) that explained


                                                                       A-1724-17T2
                                        2
to her that, although she was in default because she had not made the required

payments, she could bring the mortgage current by paying the delinquency of

$175,528.15. This amount included monthly late charges totaling $5908.32; it

did not include the property taxes or insurance premiums that the lender had

advanced. She could pay this amount "[t]o avoid the possibility of acceleration."

      Defendant did not pay, and in May 2014, plaintiff filed a complaint for

foreclosure.1   Subsequently, plaintiff's motion for summary judgment was

granted, striking defendant's answer and counterclaims, which then allowed the

case to proceed as an uncontested foreclosure. Defendant filed opposition to

plaintiff's application for the entry of a final judgment, but her opposition was

denied. A final judgment of foreclosure was entered on August 1, 2017, for

$455,489.52, of which $266,597.49 was principal and $5832 were late fees.

      Defendant did not appeal the final judgment. Instead, she filed a motion

to void the final judgment as premature. In that motion, defendant argued the

final judgment was prematurely entered because she did not have enough time,

once her opposition to the judgment was denied, to ask for reconsideration or to

appeal. She said she recently obtained "newly discovered evidence" consisting


1
  An amended complaint and contesting answer with counterclaims were filed
shortly after.


                                                                         A-1724-17T2
                                       3
of a copy of her loan account history that showed "obvious and significant

discrepancies." She continued "to research" an issue raised when she objected

to entry of the judgment.     Specifically, she argued that late fees and pre-

judgment interest should not have been included in the judgment after Wells

Fargo filed the first foreclosure complaint, because that filing accelerated the

mortgage, making it improper then to include late fees and interest.

      The trial court denied defendant's motion on December 1, 2017, finding

that the loan account history was not newly discovered evidence. The late fee

and pre-judgment interest issues had been rejected by the court when defendant

raised them in her objection to entry of the final judgment. The loan account

history did not add anything material to the issues. She could have obtained the

information earlier. The court concluded that plaintiff could charge late fees up

to the filing of its foreclosure complaint in 2014 because that complaint, not the

earlier complaint by Wells Fargo, accelerated the debt. The court explained "the

debt was decelerated when the [Wells Fargo] foreclosure action was dismissed,"

and that was evidenced by the fact that "prior to the filing of [the 2014]

complaint, [p]laintiff had not treated the debt as accelerated and was willing to

accept less than the full amount they were owed at the time to prevent




                                                                          A-1724-17T2
                                        4
foreclosure." The court determined that pre-judgment interest could be assessed

by plaintiff up to the date of the final judgment.

      Defendant appeals the December 1, 2017 order, not the final foreclosure

judgment. She argues on appeal that the court abused its discretion by ruling

that the accrual of late fees and interest on those fees did not stop once the

balance due on the loan was accelerated.2 She questioned "whether acceleration

of the balance due on a loan in default, without an affirmative de-acceleration,

is disrupted or 'reset' because of an administrative dismissal for failure to

prosecute." Defendant contends the final judgment of foreclosure was void

because it was prematurely entered. She also asserts she was denied due process

by the three-month delay in hearing her motion to void the judgment.

                                        II

      We review the trial court's order denying defendant's Rule 4:50-1(b)

motion to void the final judgment of foreclosure under an abuse of discretion

standard. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994); United


2
  Defendant does not contend that the assessment of pre-judgment interest was
improper. Because this issue was not raised in her merits brief, it is deemed
waived. Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); Drinker Biddle v.
N.J. Dep't of Law & Pub. Safety, Div. of Law, 421 N.J. Super. 489, 496 n.5
(App. Div. 2011) (noting that claims not addressed in merits brief are deemed
abandoned); see Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.
2:6-2 (2019).
                                                                        A-1724-17T2
                                        5
States v. Scurry, 193 N.J. 492, 503 (2008). We give substantial deference to the

trial court's determination and will not reverse it "unless it represents a clear

abuse of discretion." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009)

(quoting Little, 135 N.J. at 283). An abuse of discretion occurs when the

decision of the trial court has "without a rational explanation, inexplicably

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

v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez

v. Immigration and Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

      Defendant contends the court should have granted her request to void the

judgment because the loan account history, which showed details about the late

fees, was newly discovered evidence under Rule 4:50-1(b). We discern no abuse

of discretion by the trial court in rejecting this argument.

      "To obtain relief from a judgment based on newly discovered evidence,

the party seeking relief must demonstrate 'that the evidence would probably have

changed the result, that it was unobtainable by exercise of due diligence for use

at the trial, and that the evidence was not merely cumulative.'" DEG, 198 N.J.

at 264 (quoting Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438,

445 (1980)). "All three requirements must be met." Ibid.




                                                                         A-1724-17T2
                                         6
      Information about the late fees was provided to defendant well in advance

of the final judgment in 2017. The NOI mailed to defendant in 2014 listed late

fees of $5908.32 calculated at $75.94 per month. Plaintiff included late fees

again when it made its' application for a final judgment.3         Its supporting

certification listed $5832.38 in late fees, calculated at $75.94 per month.

Defendant objected to the late charges, raising the same arguments she

subsequently made in her motion to void the final judgment as premature. The

trial court rejected defendant's objections, finding that plaintiff was entitled to

late charges and post-default interest.

      The loan account history does not provide any materially new information

about the late fees. At most, the numbers vary by a few dollars. Defendant does

not argue that the loan account history materially affected her argument about

the late fees. She is not contending that she exercised due diligence or that she

was unable to obtain this information at an earlier date. The information is at

best cumulative.     Evidence that merely "attempt[s] to remedy a belated

realization of the inaccuracy of an adversary's proofs" is insufficient to warrant

vacating a judgment under Rule 4:50-1(b). DEG, 198 N.J. at 264 (quoting Posta



3
  Plaintiff filed an application for judgment in December 2016, but was required
to re-serve it. It was re-served in May 2017.
                                                                           A-1724-17T2
                                          7
v. Chung-Loy, 306 N.J. Super. 182, 206 (App. Div. 1997)). Thus, there was no

abuse of discretion by the trial court's denial of defendant's motion to void the

final judgment.

      Defendant did not appeal the August 1, 2017 final judgment of

foreclosure. Her notice of appeal listed the December 1, 2017 order. An appeal

is limited to those judgments or orders, or parts thereof, designated in the notice

of appeal. Pressler & Verniero, cmt. 6.1(e)(1) on R. 2:5-1; see Campagna v.

Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to

consider a challenge to an order not listed in the notice of appeal). Accordingly,

we decline to address issues raised about the final judgment. We further note

defendant's notice of appeal was filed long after the time permitted to appeal

from the final judgment. 4 See R. 2:4-1(a).

      Defendant had ample time to appeal the final judgment of foreclosure.

She acknowledged having a copy of the final judgment by August 5, 2017, just

a few days after it was entered. The final judgment of foreclosure could be

entered once the objection to the amount due was resolved by the court. There




4
  In oral argument, plaintiff's counsel advised that the property has been sold,
that no deficiency action has been filed and none was contemplated.
                                                                           A-1724-17T2
                                        8
is no requirement to delay the judgment long enough for defendant to file a

motion for reconsideration.

      To the extent the trial court addressed the acceleration issue in its

December 1, 2017 order under appeal, we agree with the trial court that late

charges were properly included. In Crest Sav. & Loan Ass'n v. Mason, 243 N.J.

Super. 646, 647-48 (Ch. Div. 1990), the plaintiff wanted to assess late charges

for mortgage payments claimed to be due after the foreclosure complaint was

filed. In holding that late charges could not be collected, the court explained

that once the foreclosure complaint was filed, the plaintiff accelerated "payment

of the debt and repudiated the right of [the] defendants to make installment

payments." Id. at 649. There then would be "no basis for allowing [the] plaintiff

compensation for administrative expenses in connection with alleged late

payments."   Ibid.; see State Mut. Bldg. and Loan Ass'n of New Jersey v.

Batterson, 77 N.J.L. 57, 59 (Sup. Ct. 1908) (providing that "fines should cease

with the commencement of the foreclosure suit"). Crest did not involve a

foreclosure complaint that was previously dismissed.

      The final judgment was based on the foreclosure complaint that plaintiff

filed in 2014. Not only had the Wells Fargo complaint been dismissed by that

time, but plaintiff's servicer sent an NOI to defendant that made it clear


                                                                         A-1724-17T2
                                       9
defendant could cure her default by paying a specified amount. This was not

the full amount of plaintiff's claim. It did not include the property taxes or

homeowners insurance that plaintiff advanced.        The NOI also stated that

payment was necessary to "avoid the possibility of acceleration." On this record,

the trial court did not err by concluding that the loan was not accelerated at the

time plaintiff filed its foreclosure complaint in 2014, and that plaintiff was not

precluded from assessing late fees.

      After carefully reviewing the record and the applicable legal principles,

we conclude that defendant's further arguments are without sufficient merit to

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

      Affirmed.




                                                                          A-1724-17T2
                                       10
