CASE STUDY 4

First Horizon Home Loans v. Martinez, No. A-1646-12T3, 2014 N.J. Super. Unpub. LEXIS 2228, at *7-8 (Super. Ct. App. Div. Sep. 12, 2014) 

Rafael Martinez: App Div Reversal (1) 

 

In July 2008, plaintiff First Horizon Home Loans, a Division of First Tennessee Bank, National Association, filed a foreclosure complaint, which it amended in December of that year. 

Two and one-half months after the sale, in October 2012, defendants filed a motion to set aside the sheriff's sale, vacate the default judgment, and extend the redemption period or, alternatively, dismiss the complaint. Defendants averred they had never been served with the original or amended complaints, or any other pleadings or orders associated with the foreclosure action, including the notice of intention. 

 

As we have previously pointed out, the trial court did not address defendants' argument that the judgment was void because they were never served. In support of that claim, defendants submitted certifications to which Ritza Martinez's New Jersey driver's license and a photograph are appended. They averred that defendant Ritza Martinez was not the individual served, and that the physical description on the affidavit [*8]  of service does not match her. She is not a "white woman" with "brown hair." The photographs corroborate that, as defendants further aver, she is a "dark-skinned Hispanic with black hair." (Da181). The photographs lend credence to defendants' argument that defendant Ritza Martinez "cannot and never has passed for white." DA181 
 
First Horizon Home Loans v. Martinez, No. A-1646-12T3, 2014 N.J. Super. Unpub. LEXIS 2228, at *7-8 (Super. Ct. App. Div. Sep. 12, 2014) 

 

Our standard of review warrants substantial deference to the trial court's determination, which "should not be reversed unless it results in a clear [*6]  abuse of discretion." Id. at 467 (citation omitted). An abuse of discretion occurs when a decision "is made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis." Ibid.(citation and internal quotation marks omitted). Here, the trial court did not make any findings or conclusions as to defendants' claim that the judgment was void. 
 
First Horizon Home Loans v. Martinez, No. A-1646-12T3, 2014 N.J. Super. Unpub. LEXIS 2228, at *5-6 (Super. Ct. App. Div. Sep. 12, 2014) 

 

As we have previously pointed out, the trial court did not address defendants' argument that the judgment was void because they were never served. In support of that claim, defendants submitted certifications to which Ritza Martinez's New Jersey driver's license and a photograph are appended. They averred that defendant Ritza Martinez was not the individual served, and that the physical description on the affidavit [*8]  of service does not match her. She is not a "white woman" with "brown hair." The photographs corroborate that, as defendants further aver, she is a "dark-skinned Hispanic with black hair." (Da181). The photographs lend credence to defendants' argument that defendant Ritza Martinez "cannot and never has passed for white." DA181 

Plaintiff's counterarguments are not compelling. Plaintiff asserts that defendant "has failed to offer any evidence in support of her claim that the affidavit is false and instead relies on her bald assertions that she does not fit the description in the affidavit of service." That statement entirely overlooks the photographic evidence and therefore is entirely unpersuasive. 

 
 
First Horizon Home Loans v. Martinez, No. A-1646-12T3, 2014 N.J. Super. Unpub. LEXIS 2228, at *7-8 (Super. Ct. App. Div. Sep. 12, 2014) 

 

Here, defendants have done more than make an uncorroborated assertion that they were never served with the original [*10]  or amended complaints. They have demonstrated through their certifications and through the photographic evidence that, contrary to the statements in the affidavits of service, defendant Ritza Martinez is not a white female with brown hair. The certifications and photographs are "some evidence . . . tending to disprove the return." Jameson, supra, 363 N.J. Super. at 426-27. That evidence entitles defendants to an evidentiary hearing. 
 
First Horizon Home Loans v. Martinez, No. A-1646-12T3, 2014 N.J. Super. Unpub. LEXIS 2228, at *9 (Super. Ct. App. Div. Sep. 12, 2014) 

 

 

If the court determines the defendants [*11]  were not served, it must then decide whether defendants timely moved to vacate the judgment. If it concludes they did not, then "the consequences of defendants' failure to do so must be determined by balancing the weight of estoppel and laches considerations favoring each party in the circumstances." Pressler & Verniero, Current N.J. Court Rules, comment 5.4.2 on R. 4:50-1 (2014). 
 
First Horizon Home Loans v. Martinez, No. A-1646-12T3, 2014 N.J. Super. Unpub. LEXIS 2228, at *10-11 (Super. Ct. App. Div. Sep. 12, 2014) 



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