                        NOT FOR PUBLICATION WITHOUT THE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-5540-15T1


U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR RESIDENTIAL
ASSET SECURITIES CORPORATION,
HOME EQUITY MORTGAGE ASSET-
BACKED CERTIFICATES, SERIES
2006-EMX2,

        Plaintiff-Respondent,

v.

TRACEY M. CHRISTENSEN; MR.
CHRISTENSEN, husband of TRACEY
M. CHRISTENSEN; SCOTT A.
CHRISTENSEN; MRS. SCOTT A.
CHRISTENSEN, his wife,

        Defendants-Appellants,

and

BENEFICIAL NEW JERSEY INC.,
d/b/a BENEFICIAL MORTGAGE
COMPANY AND EQUABLE ASCENT
FINANCIAL LLC,

     Defendants.
______________________________

              Submitted September 28, 2017 – Decided October 19, 2017

              Before Judges Simonelli and Gooden Brown.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Ocean County, Docket No.
            F-027291-14.

            Tracey   M.   Christensen    and   Scott   A.
            Christensen, appellants pro se.

            Reed Smith LLP, attorneys for respondent
            (Henry F. Reichner, of counsel and on the
            brief).

PER CURIAM

     In this foreclosure matter, defendants Tracey M. Christensen

and Scott A. Christensen appeal from the August 5, 2016 Chancery

Division order, which denied their motion to vacate final judgment

entered on November 29, 2015, following a trial at which defendants

appeared.    For the following reasons, we affirm.

     On November 1, 2005, defendants executed a note to Mortgage

Lenders Network, USA, Inc. (MLN) in the amount of $220,500.        MLN

executed an endorsement of the note to Emax Financial Group (Emax),

and Emax executed an allonge endorsing the note to MLN.     To secure

payment of the note, defendants executed a mortgage to Mortgage

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

and its successors and assigns, on their property located in Brick.

The mortgage was recorded with the Ocean County Clerk on November

16, 2005.

     Defendants defaulted on July 1, 2012.       Prior thereto, on

March 1, 2007, Wells Fargo Bank, N.A., as servicer for plaintiff,


                                  2                           A-5540-15T1
received possession of the original note and mortgage.            On August

16, 2012, MERS, as nominee for MLN, executed an assignment of the

mortgage     "together   with   the   note"   to    U.S.   Bank    National

Association, as trustee for RASC 2006-EMX2.           The assignment was

recorded with the Ocean County Clerk on August 17, 2012.

     On April 15, 2014, U.S. Bank National Association, as trustee

for RASC 2006-EMX2 by Wells Fargo Bank, N.A., as attorney-in-fact,

executed an assignment of mortgage to plaintiff, as trustee for

Residential Asset Securities Corporation, Home Equity Mortgage

Asset-Backed Pass-Through Certificates, Series 2006-EMX2.                 The

purpose of the assignment was to clarify the name of the trust to

whom MERS had assigned the mortgage and note on August 16, 2012.

The assignment was recorded with the Ocean County Clerk on April

22, 2014.

     On April 11, 2014, plaintiff, through its agent, Wells Fargo,

mailed a notice of intention to foreclose to defendants.              After

defendants failed to cure, on July 3, 2014, plaintiff filed a

foreclosure complaint.      Defendants filed an answer and asserted

eleven     affirmative   defenses,    including    plaintiff's     lack    of

standing.

     At trial, defendants did not challenge the validity of the

note and mortgage or deny their default.          Rather, they challenged

plaintiff's standing and the assignment of mortgage.              In a June

                                      3                             A-5540-15T1
30, 2015 oral decision, the trial judge found plaintiff had

physical possession of the original note and assignment of the

mortgage to confer standing, and thus plaintiff established a

prima facie right to foreclose.              The judge entered an order on

June 30, 2015, striking defendants' answer and returning the matter

to the Office of Foreclosure.            On November 29, 2015, the court

entered final judgment in plaintiff's favor.                   Defendants were

served with the final judgment on December 7, 2015.

      Defendants did not file any post-judgment motions or an

appeal.     Instead, on July 11, 2016, seven months after receiving

the final judgment and after a Sheriff's sale had been scheduled,

defendants     filed    a    motion     to   vacate     the   final     judgment.1

Defendants argued the trial judge made erroneous factual findings

and   the    evidence     did   not   establish       plaintiff   had    physical

possession of the original note and mortgage to confer standing.

Defendants also challenged the validity of the assignment of

mortgage, arguing that, according to a July 2016 search of the

records of the Securities and Exchange Commission (SEC), the trust

did not exist.

      In    opposition,     plaintiff    argued   that    defendants      did   not

search the complete and proper name of the trust.                       Plaintiff


1
    The motion papers in the record did not specify on what
subsection of Rule 4:50-1 defendants relied.

                                         4                                A-5540-15T1
provided a correct SEC search, which revealed the existence of the

trust with the Pooling and Servicing Agreement filed with the SEC

on March 10, 2006.

     The motion judge determined the motion was untimely, and

defendants failed to show excusable neglect.            Addressing the

merits, the judge found plaintiff had physical possession of the

original note and assignment of mortgage to confer standing, and

defendants lacked standing to challenge the assignment.       The judge

also found that a correct search of SEC's records revealed the

existence of the trusts in 2006.      This appeal followed.

     On appeal, defendants contend they were entitled to relief

under   Rule   4:50-1(a),   "mistake,   inadvertence,    surprise,     or

excusable neglect;" Rule 4:50-1(d), "the judgment or order is

void;" and Rule 4:50-1(f), "any other reason justifying relief

from the operation of the judgment or order."      Defendants argue,

in part, that the judge made erroneous factual findings and there

was no evidence plaintiff had physical possession of the note and

mortgage to confer standing to foreclose.      Defendants also argue

they were entitled to relief under Rule 4:50-1(c), "fraud (whether

heretofore denominated intrinsic or extrinsic), misrepresentation,

or other misconduct of an adverse party," because there was no




                                  5                             A-5540-15T1
power of attorney to authenticate the assignment of mortgage to

plaintiff and the trust did not exist.2

       A motion for relief under Rule 4:50-1 should be granted

sparingly and is addressed to the sound discretion of the trial

court, whose determination will not be disturbed absent a clear

abuse of discretion.      U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J.

449,    467   (2012).        "[A]buse     of    discretion       only    arises    on

demonstration of 'manifest error or injustice[,]'"                       Hisenaj v.

Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J.

554, 572 (2005)), and occurs when the trial court's decision "is

made without a rational explanation, inexplicably departed from

established      policies,    or    rested     on   an   impermissible      basis."

Guillaume, supra, 209 N.J. at 467 (citation omitted).                    We discern

no abuse of discretion here.

       Motions   made   under      Rule   4:50-1    must    be   filed    within    a

reasonable time.     R. 4:50-2; see also Deutsche Bank Trust Co. Ams.

v. Angeles, 428 N.J. Super. 315, 319 (App. Div. 2012) (citation

omitted).     Motions based on Rule 4:50-1(a), (b) and (c) must be

filed within a year of the judgment.            Ibid.      However, the one-year



2
    We decline to address defendants' additional argument that
plaintiff forged the assignment. Defendants did not raise this
issue before the trial judge and it is not jurisdictional in nature
nor does it substantially implicate the public interest. Zaman
v. Felton, 219 N.J. 199, 226-27 (2014) (citation omitted).

                                          6                                 A-5540-15T1
limitation for subsections (a), (b) and (c) does not mean that

filing   within   one    year   automatically    qualifies      as     "within   a

reasonable time."       Orner v. Liu, 419 N.J. Super. 431, 437 (App.

Div.), certif. denied, 208 N.J. 369 (2011); R. 4:50-2.                    "[T]he

one-year period represents only the outermost time limit for the

filing of a motion based on Rule 4:50-1(a), (b) or (c).                      [All]

Rule 4:50 motions must be filed within a reasonable time, which,

in some circumstances, may be less than one year from entry of the

order    in   question."    Orner,   supra,    419     N.J.   Super.    at    437.

"[D]elays of less than one year may be unreasonable."                Id. at 438

(citing McLawhorn v. John W. Daniel & Co., 924 F.2d 535, 538 (4th

Cir.     1991)       (finding    a     three-and-one-half-month              delay

unreasonable); Kagan v. Caterpillar Tractor Co., 795 F.2d 601,

610-12 (7th Cir. 1986) (finding an approximate four-month delay

unreasonable); Security Mut. Cas. Co. v. Century Cas. Co., 621

F.2d 1062, 1068 (10th Cir. 1980) (finding a three-month delay

unreasonable); West v. Gilbert, 361 F.2d 314, 316 (2d Cir.)

(finding a three-month delay unreasonable), cert. denied, 385 U.S.

919, 87 S. Ct. 229, 17 L. Ed. 2d 143 (1966)).

       Here, defendants' seven month delay in filing their Rule

4:50-1 motion was unreasonable in the circumstance.                  Defendants

were aware of the judge's June 30, 2015 ruling and of entry of

final    judgment,    but   waited   seven    months    after   receiving      the

                                       7                                 A-5540-15T1
judgment and after the Sheriff's sale was scheduled to file their

motion.   Defendants gave no reason for the delay.              Accordingly,

their motion was barred by Rule 4:50-2.           Even if not time-barred,

the motion lacked merit.

      Relief under Rule 4:50-1(a) for mistake does not include

trial errors from which relief must be sought either by direct

appeal, a motion for a new trial, or a motion for judgment

notwithstanding the verdict.          See Hodgson v. Applegate, 31 N.J.

29, 35 (1959).    The type of mistake entitled to relief under Rule

4:50-1(a) is one the parties could not have protected themselves

from during trial.      DEG, LLC v. Twp. of Fairfield, 198 N.J. 242,

263 (2009) (citation omitted).        Excusable neglect under Rule 4:50-

1(a) has been defined as excusable carelessness "attributable to

an   honest   mistake   that    is   compatible   with   due    diligence    or

reasonable prudence." Deutsche Bank Nat'l Trust Co. v. Russo, 429

N.J. Super. 91, 98 (App. Div. 2012) (quoting Guillaume, supra, 209

N.J. at 468).

      Defendants cannot use a Rule 4:50-1(a) motion to challenge

the judge's factual findings, and they failed to show there was a

mistake they could not have protected themselves from during trial

as well as excusable neglect. Defendants filed an answer, asserted

eleven affirmative defenses, appeared at trial, cross-examined

plaintiff's    witness,   and    entered   documents     into   evidence     to

                                       8                              A-5540-15T1
dispute plaintiff's standing.                 Because defendants had a full

opportunity to protect themselves during trial, their claim for

relief under Rule 4:50-1(a) fails.

     Relief pursuant to Rule 4:50-1(c) requires proof of "fraud,

. . . misrepresentation, or other misconduct."                 There is no such

proof here, and thus, defendants were not entitled to relief

pursuant to subsection (c).

     Defendants were also not entitled to relief pursuant to Rule

4:50-1(d)     because,    even     if    plaintiff    lacked     standing,    the

foreclosure    judgment    was   "not      'void'    within   the   meaning   of"

subsection (d).      Russo, supra, 429 N.J. Super. at 101.                    The

judgment is "voidable" unless the plaintiff has standing from

either possession of the note or an assignment of the mortgage

that predated the original complaint.               Angeles, supra, 428 N.J.

Super. at 319-20.         A plaintiff need not actually possess the

original note in order to have standing to file a foreclosure

complaint.     Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J.

Super. 214, 255 (App. Div. 2011).                 A plaintiff can establish

standing as an assignee if it presents an authenticated assignment

of the note indicating that it was assigned the note before it

filed the complaint.       Ibid.        Here, plaintiff had both possession

of the original note and an assignment of the mortgage and note



                                          9                              A-5540-15T1
that predated the complaint.        Accordingly, plaintiff had standing

to file the complaint in this matter.

       Lastly, relief pursuant to Rule 4:50-1(f), "is available only

when 'truly exceptional circumstances are present.'"            Hous. Auth.

of Morristown v. Little, 135 N.J. 274, 286 (1993) (quoting Baumann

v. Marinaro, 95 N.J. 380, 395 (1984)).            "[I]n order to obtain

relief under this subsection, the movant must ordinarily show that

the circumstances are exceptional and that enforcement of the

order or judgment would be unjust, oppressive or inequitable."

Pressler & Verniero, Current N.J. Court Rules, comment 5.6.1 on

R. 4:50-1 (2018). "No categorization can be made of the situations

which would warrant redress under subsection (f). . . . [T]he very

essence    of   (f)   is   its   capacity   for   relief   in   exceptional

situations.     And in such exceptional cases its boundaries are as

expansive as the need to achieve equity and justice."           DEG, supra,

198 N.J. at 269-70 (alteration in original) (quoting Court Inv.

Co. v. Perillo, 48 N.J. 334, 341 (1966)). There are no exceptional

circumstances in this case that warrant relief under subsection

(f).

       Affirmed.




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