                        NOT FOR PUBLICATION WITHOUT THE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-2217-14T2

NATIONSTAR MORTGAGE, LLC,

        Plaintiff-Respondent,

v.

FARAH YUCEYUKSEL DONTAS,

        Defendant-Appellant,

and

FARAH YUCEYUKSEL DONTAS, her heirs, devisees
and personal representatives, and her, his,
their or any of their successors in right, title
and interest; ERKAN S. YUCEYUKSEL, his heirs,
devisees and personal representatives, and his,
her, their or any of their successors in right,
title and interest; MRS. ERKAN S. YUCEYUKSEL;
TOWNSHIP OF PARSIPPANY-TROY HILLS; and PNC BANK,

     Defendants.
________________________________

              Submitted January 9, 2017 – Decided September 6, 2017

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Morris County, Docket No.
              F-47496-09.

              Joseph A. Chang & Associates, LLC, attorneys
              for appellant (Mr. Chang, of counsel and on
              the brief; Jeffrey Zajac, on the brief).
           Ballard Spahr, LLP, attorneys for respondent
           (Martin C. Bryce, Jr. and William J. DeSantis,
           on the brief).

PER CURIAM

     This is a residential mortgage foreclosure action.         Defendant

Farah Yucekyuksel Dontas appeals from orders denying her motion

to vacate a default and entering the final foreclosure judgment.

For the reasons that follow, we affirm.

     In 2001, defendant purchased her Parsippany home and executed

an adjustable rate mortgage with ten percent interest.          Four years

later, on December 7, 2005, she refinanced, executed a note to

Lehman Brothers Bank, FSB, and executed a thirty-year fixed rate

mortgage with six percent interest.         The mortgagee was Mortgage

Electronic Registration System, Inc. ("MERS"), as nominee for

Lehman Brothers Bank.1 According to defendant, her mortgage broker

– referred by the loan officer from whom defendant obtained the

original   loan   –   assured   defendant   refinancing   was   her   "best

option."     Defendant also asserts she obtained the refinancing

without providing any documentation.        Defendant acknowledges she

received paperwork for the refinancing, but denies she was notified




1
  The mortgage was duly recorded in the Morris County Clerk's
Office.


                                     2                             A-2217-14T2
of her right to reject the loan within three days of completing

the paperwork.

     Defendant defaulted on the loan on March 1, 2009. Thereafter,

she contacted Aurora Loan Services, LLC ("Aurora") to inquire

about a mortgage modification under the Federal Home Affordable

Modification Program ("HAMP").

     On August 24, 2009, MERS assigned defendant's mortgage to

Aurora.    Aurora filed a foreclosure complaint on August 31, 2009,

alleging defendant had been in default since April 1, 2009.              When

defendant failed to answer or otherwise plead to the complaint,

Aurora filed a request and certification of default on April 8,

2010.     Aurora mailed a copy of the request and certification of

default to defendant four days before filing it.

     Thereafter, Aurora placed defendant on two consecutive six-

month     trial   payment     plans   for   mortgage   modification,     but

ultimately denied her request for permanent modification, claiming

she submitted deficient documents.          Defendant maintains she paid

Aurora during each trial program, from April 2010 through June

2011.

     On June 25, 2012, Aurora assigned defendant's mortgage to

Nationstar    Mortgage      ("Nationstar").     Neither   party   took    any

further action until May 3, 2013, when defendant filed a motion



                                      3                             A-2217-14T2
to vacate the entry of default and requested leave to file an

answer out of time.

     On June 21, 2013, the court held oral argument and determined

defendant received notice of Aurora's intent to foreclose, Aurora

had no obligation to grant defendant a mortgage modification, and

Aurora held the note at the time it filed the foreclosure action.

Accordingly, the court denied defendant's motion on the basis that

she lacked "any type of real meritorious defense."        The court

finalized its decision in an order.

     On January 16, 2014, the court entered an order substituting

Nationstar as plaintiff.    Nationstar filed a notice of motion for

final judgment on November 5, 2014, and the court entered a final

judgment of foreclosure on December 8, 2014, from which defendant

now appeals.

     On appeal, defendant argues the trial court erred in denying

her motion to vacate the default because her conduct was not

contumacious and she "possessed a meritorious defense worthy of

judicial determination."    The primary dispute on appeal is whether

defendant possessed a meritorious defense.

     Defendant   contends    she   possessed   several   meritorious

defenses.   First, she contends she had a viable claim under the

Consumer Fraud Act ("CFA"), N.J.S.A. 56:8-2 to -204, based on a

theory of predatory lending.       Next, she asserts violations of

                                   4                         A-2217-14T2
HAMP,   12    U.S.C.      §    5201-5261       (2008),     can    constitute     evidence

supporting     a    CFA    claim.        She       also   asserts    plaintiff      or   its

predecessor        engaged      in   the       practice      of     dual    tracking       by

simultaneously pursuing both a loan modification and foreclosure.

Lastly, defendant argues Aurora violated the CFA while defendant

was   trying     to    obtain    a   mortgage         modification     by    continually

insisting defendant provide documents she previously provided and

by    claiming     her    application          was    incomplete.          According       to

defendant, Aurora giving her a "run-around" supports a CFA claim.

       In addition to her CFA contentions, defendant claims the

complaint must be dismissed because "plaintiff . . . cannot produce

evidence of ownership or control of the note" and therefore lacks

standing to foreclose.               Lastly, defendant argues the Chancery

Division's denial of her motion to vacate the default was not

supported by the record, and the motion should have been granted

in any event because defendant's conduct was not contumacious.

       Rule 4:43-3 authorizes a court to set aside an entry of

default "[f]or good cause shown."                     "[A]n application to vacate

default      'should      be    viewed     with      great    liberality      and     every

reasonable ground for indulgence is tolerated to the end that a

just result is reached.'"             N.J. Div. of Youth and Family Servs.

v. P.W.R., 410 N.J. Super. 501, 508 (App. Div. 2009) (citations

omitted), rev’d on other grounds, 205 N.J. 17 (2011). The standard

                                               5                                    A-2217-14T2
for setting aside an entry of default is less stringent than the

standard for setting aside a default judgment.   US Bank Nat. Ass'n

v. Guillaume, 209 N.J. 449, 466-67 (2012) (citation omitted).

     A party seeking to set aside an entry of default may establish

good cause by demonstrating "the presence of a meritorious defense

worthy of judicial determination . . . and the absence of any

contumacious conduct." O'Connor v. Altus, 67 N.J. 106, 129 (1975).

"[T]he 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, comment on

R. 4:43-3 (2017).   That element is required because, like a motion

to vacate a default judgment, when a party has no meritorious

defense, "[t]he time of the courts, counsel and litigants should

not be taken up by such a futile proceeding."    Guillaume, supra,

209 N.J. at 469 (quoting Schulwitz v. Shuster, 27 N.J. Super. 554,

561 (App. Div. 1953)).   We review the denial of a motion to vacate

default under an abuse of discretion standard.   Cf. id. at 467.

     In the case now before us, defendant attempted to demonstrate

good cause by establishing she had a meritorious defense and was

not culpable of contumacious conduct.       Having considered her

arguments in light of the record and applicable legal principles,

we conclude the trial court did not abuse its discretion in denying

her motion.

                                 6                          A-2217-14T2
      Defendant argues her situation presents a case of predatory

lending, which violates the CFA.          Predatory lending is:

            a mismatch between the needs and capacity of
            the borrower . . . .    In essence, the loan
            does not fit the borrower, either because the
            borrower's underlying needs for the loan are
            not being met or the terms of the loan are so
            disadvantageous to that particular borrower
            that there is little likelihood that the
            borrower has the capacity to repay the loan.

            [Assocs. Home Equity Servs., Inc. v. Troup,
            343 N.J. Super. 254, 267 (App. Div. 2001)
            (alteration in original) (citation omitted).]

Predatory lenders "target certain populations for onerous credit

terms" and

            take advantage of borrowers due to their lack
            of sophistication in the lending market, . .
            . their lack of perceived options for the loan
            . . ., or due to deceptive practices engaged
            in by the lender that mislead or fail to inform
            the borrower[s] of the real terms and
            conditions of the loan.

            [Id. at 268 (citation omitted).]

      Here, though defendant earned an adjusted gross income of

only $27,278, she received a $306,000 loan from Lehman Brothers,

who   did   not   request   or   review   any   documentation   beforehand.

Defendant argues the lender extended the note "with reckless

unconcern as to [defendant's] ability to pay, . . . and by

extension, [Nationstar] committed an unconscionable commercial

practice."


                                      7                             A-2217-14T2
     Although it appears defendant did lack the capacity to repay

the loan, Nationstar is not the original lender, but rather became

the note and mortgage holder upon an assignment.      Assuming for

purposes of this discussion that Lehman Brothers engaged in an

actionable predatory lending practice, defendant fails to explain

how Nationstar could be held accountable for Lehman Brothers'

wrongs.   Defendant has neither claimed nor established either that

Nationstar was Lehman Brothers' agent or that Nationstar was in

some other way vicariously liable for Lehman Brothers' actions.

More significantly, defendant has cited no legal authority to

support such a proposition.      In other words, defendant has not

established a meritorious defense against Nationstar.

     Defendant next contends violations of HAMP "constitute[]

evidence that can be utilized to support a CFA claim."      In that

regard, defendant asserts her:

           Two Period Plan ("TPP") agreements were marred
           by the bad faith conduct of Aurora, which
           continually   requested    documents   already
           provided,   falsely    [claimed]   it   lacked
           materials actually in its possession, [failed]
           to implement adequate procedures and systems
           to respond to inquiries and complaints, and .
           . . [prolonged] and [delayed] its extension
           of offers for a permanent loan modification.

     Defendant, however, does not support her contention with

facts or evidence from the record. She concedes these shortcomings

by admitting "[t]he facts relating to the two HAMP TPPs [were] not

                                  8                         A-2217-14T2
fully documented below.         However, given the chance to file[] an

[a]nswer to the [c]omplaint and conduct discovery, the violations

under HAMP can be outlined." This assertion by defendant overlooks

her   burden     of   establishing     an   affirmative      defense    to    the

foreclosure    action.        Unsupported       conclusory   allegations      are

inadequate to carry this burden.

      Defendant's remaining arguments are without sufficient merit

to warrant further discussion.         R. 2:11-3(e)(1)(E).          We add only

these comments.       Defendant did not raise before the trial court

her   argument    here   that    the   practice     of    "dual    tracking"     —

"initiating    foreclosure      proceedings      while    also    negotiating    a

mortgage modification,"         U.S. Bank Nat. Ass'n v. Curcio, 444 N.J.

Super. 94, 113 (App. Div. 2016) (citation omitted) — constituted

a defense to the foreclosure action.             We thus decline to consider

it.   Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Defendant's      "standing"     argument    —    "given    the    complications

presented by the involvement of [MERS] and the fact that the

[p]laintiff represents the third mortgagee in this matter . . .

there would certainly be issues of fact relating to the ownership

of both the note and mortgage documents" — is an engagement in

speculation, not the establishment of an affirmative defense.

      Based on the record before us, we are unable to conclude the

trial court abused its discretion when it denied defendant's motion

                                       9                                 A-2217-14T2
to   vacate   the   default.   Defendant   failed   to   establish    an

affirmative defense, "a traditional element necessary for setting

aside both a default and a default judgment." Pressler & Verniero,

supra, comment on R. 4:43-3.

      Affirmed.




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