SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-4909-16T1

 A-2371-17T1

CITIZENS BANK OF 

PENNSYLVANIA,

Plaintiff-Respondent,

v.

METODI A. DONCHEV, his/her

heirs, devisees and personal

representatives, and his/her, their or 

any of their successors in right, title 

and interest, MIDLAND FUNDING

LLC, ANTON METODIEV DONCHEV,

known heir of METODI A. DONCHEV, 

and ROCITSA METODIEVA, known 

heir of METODI A. DONCHEV,

Defendants,

FAITH DONCHEVA a/k/a

FAITH DONCHEV, individually

and as personal representative of the 

ESTATE OF METODI A. DONCHEV,

Defendants-Appellants.

_____________________________________

Argued October 22, 2018 – Decided December 6, 2018

NOT FOR PUBLICATION WITHOUT THE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.
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A-4909-16T1

Before Judges Sumners and Mitterhoff.

On appeal from Superior Court of New Jersey, 

Chancery Division, Gloucester County, Docket No. F021911-12.

Louis J. Johnson, Jr. argued the cause for appellant.

J. Eric Kishbaugh argued the cause for respondent 

(Udren Law Offices, PC, attorneys; Nicole B. LaBletta, 

on the brief in A-4909-16 and J. Eric Kishbaugh, on the 

brief in A-2371-17).

PER CURIAM

Defendant Faith Doncheva appeals the trial court's denial of her motions 

to vacate a final judgment of foreclosure, set aside the sheriff's sale, and enforce 

a post-sale offer to settle mortgage loans. We affirm.

On June 18, 2003, defendant and her husband Metodi Donchev (M. 

Donchev) executed a promissory note to Citizens Bank in the amount of 

$98,400. On the same day, to secure repayment of the note amount, defendant 

and M. Donchev executed a mortgage to Citizens Bank on their property located

in National Park, New Jersey (the property). On January 24, 2005, defendant

and M. Donchev refinanced the property by executing a second note in 

consideration of an additional loan of $40,000. On the same day, to secure 
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repayment of the second note, defendant and M. Donchev executed a second 

mortgage on the property to Citizens Bank. 

Defendant and M. Donchev defaulted on both notes in December 2009. 

On October 22, 2013, Citizens Bank instituted the current foreclosure action in 

the Superior Court of New Jersey, Chancery Division, Gloucester County. After 

defendant failed to answer the complaint, Citizens Bank filed a request and 

certification of default. On April 10, 2014, defendant sent a letter responding 

to the complaint, however, the letter was not filed because defendant did not 

enclose the filing fee. In defendant's letter, she denied having received the 

complaint and denied "owing any sums to any party."

1

 On November 24, 2014, 

the Honorable Paul Innes, P.J.Ch., issued a final judgment against defendant. 

On April 14, 2016, notices of a sheriff's sale of the property scheduled for 

April 27, 2016 were issued and sent to defendant. After Citizens Bank

purchased the property at the sale, the sheriff's deed was delivered on May 9, 

2016. On July 20, 2016, Judge Innes issued a writ of possession to Citizens 

Bank. 

 

1

 By the time defendant submitted this letter to the court, M. Donchev had 

passed away and defendant was acting on behalf of his estate. 
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On April 25, 2017, defendant received two letters from Citizens Bank 

purporting to offer a settlement of her first and second mortgage loans for $2,064 

and $19,807.74, respectively. In May 2017, defendant attempted to accept the 

offer by sending checks for the requested amounts to Citizens Bank. On May 

22, 2017, Citizens Bank sent a letter to defendant returning defendant's checks

and stating that "[a]ny offers contained in the letter of April 25, 2017 from 

Citizens Bank are hereby revoked."

On July 3, 2017, David Braz, a Vice President/Senior Manager of the 

Collections and Recovery Department at Citizens Bank, N.A., certified that 

letters sent to defendant were "issued in error." Mr. Braz further certified that 

the mortgages relevant to the present matter 

were originally coded as foreclosed loans in Citizens' 

computer system in April 2017, however, the REO 

department of Citizens erroneously noted[,] when 

questioned by the employee speaking with [defendant] 

in April 2017[,] that the loans were not in the 

Foreclosure/REO department. Thus, the employee that 

was speaking with [defendant] during April 2017 

changed the coding of the loans in error. Had it been 

properly notated that the loans were in REO when 

questioned, the April 25, 2017 settlement letter would 

have never been issued. 

On July 11, 2017, the Honorable Anne McDonnell, P.J.Ch., denied 

defendant's motion to enforce the settlement agreement because it "was not 
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made with full knowledge by Citizens Bank." She reasoned that the settlement 

offer "was a little too late, given that the . . . property had already been 

foreclosed, that the plaintiff was represented in the foreclosure action. That it 

was a very active foreclosure, in that I had a number of stay requests[.]" 

On December 1, 2017, Judge McDonnell denied defendant's motion to set 

aside the sheriff's sale and to vacate the final judgment. This appeal ensued.

Motion to Enforce the Settlement Offer

Defendant argues that the trial court erred by refusing to enforce Citizens 

Bank's post-foreclosure settlement agreement. Citizens Bank counters that 

defendant's motion to enforce the purported settlement agreement is moot 

because defendant's mortgage and loan ceased to exist once the trial court 

entered final judgment. We agree with Citizens Bank and hold that any issues 

concerning purported offers to settle defendant's mortgages and loans are moot. 

Review of a trial court's factual determinations in a non-jury case is 

limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). 

Appellate courts "do not disturb the factual findings and legal conclusions of the 

trial judge unless we are convinced that they are so manifestly unsupported by 

or inconsistent with the competent, relevant and reasonably credible evidence 
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as to offend the interests of justice." Ibid. (quoting In re Trust Created By 

Agreement Dated December 20, 1961, 194 N.J. 276, 284 (2008)). 

New Jersey courts "consider an issue moot when 'our decision sought in a 

matter, when rendered, can have no practical effect on the existing controversy.'" 

Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 221-22 (App. 

Div. 2011) (quoting Greenfield v. N.J. Dep't of Corr., 383 N.J. Super. 254, 257-

58 (App. Div. 2006)). "A case is technically moot when the original issue 

presented has been resolved, at least concerning the parties who initiated the 

litigation." De Vesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., 

concurring) (citing Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975)). 

In the landlord-tenant context, "where a tenant no longer resides in the property, 

an appeal challenging the propriety of an eviction is moot." Sudersan v. Royal, 

386 N.J. Super. 246, 251 (App. Div. 2005) (citing Center Ave. Realty, Inc. v. 

Smith, 264 N.J. Super. 344, 347 (App. Div. 1993)). 

Furthermore, absent evidence of contrary intent, "a loan no longer exists 

after a default leads to the entry of a final judgment." Gonzalez, 207 N.J. at 

580-81 (citing 30A New Jersey Practice, Law of Mortgages, § 31.36 (Myron C. 

Weinstein) (2d ed. 2000)). It is a "well-settled principle that a mortgage merges 

into the judgment of foreclosure[.]" Virginia Beach Fed. v. Bank of New 
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York/National Cmty. Div., 299 N.J. Super. 181, 188 (App. Div. 1997). A 

foreclosure judgment "represents the final determination of the debt and amount 

due" on the mortgage. Colonial Building-Loan Ass'n v. Mongiello Bros., 120 

N.J. Eq. 270, 276 (Ch. 1936). 

Any dispute over Citizens Bank's offers to settle defendant's mortgages 

and loans is moot because there are no issues regarding the mortgage or the 

foreclosure action that require resolution. De Vesa, 134 N.J. at 428. The final

foreclosure judgment in the current matter was ordered on November 24, 2014. 

The sheriff's sale took place on April 27, 2016. The sheriff's deed was delivered 

to Citizens Bank on May 9, 2016. As will be discussed below, there are no 

grounds for setting aside the sheriff's sale. Defendant's loans merged with the 

mortgage when the final judgment in the foreclosure complaint was issued on 

November 24, 2017. See Virginia Beach Fed., 299 N.J. Super. at 188. Thus, a 

decision by this court enforcing the settlement agreement can have no practical 

effect on defendant's mortgages and loans, as they no longer exist. Accordingly, 

we affirm trial court's refusal to enforce the post-sale settlement agreement. 

Motion to Set Aside Sheriff's Sale

Defendant argues that the trial court erred in upholding the April 2016 

sheriff's sale. She argues that she had no notice of the sale because Citizens 
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Bank knew that her mailing address changed, but did not send notice to said 

address. Thus, according to defendant, the trial court erred in finding that she 

had notice. Citizens Bank argues that the trial court correctly granted its motion 

to affirm the sheriff's sale because it provided all of the necessary notices to 

defendant. 

Appellate courts exercise their discretion to set aside a foreclosure sale 

only to correct a plain injustice. See First Tr. Nat. Ass'n v. Merola, 319 N.J. 

Super. 44, 49 (App. Div. 1999) ("[T]he exercise of this power [to set aside a 

sheriff's sale] is discretionary and must be based on considerations of equity and 

justice.") (citation omitted); E. Jersey Sav. & Loan Ass'n v. Shatto, 226 N.J. 

Super. 473, 476 (Ch. Div. 1987) (citation omitted) ("The power to set aside a 

foreclosure sale is to be exercised with great care and only when necessary for 

compelling reasons."); see also 30A N.J. Practice, Law of Mortgages § 35.17 

(Myron C. Weinstein) (2d ed. Oct. 2017 update) (collecting cases). 

When a residential property is being sold at a sheriff's sale, the seller must 

provide notice to the record owner of the property. See R. 4:65-2. The Rule

provides, 

The party who obtained the order or writ shall, at least 

10 days prior to the date set for sale, serve a notice of 

sale by registered or certified mail, return receipt 

requested, upon (1) every party who has appeared in the 
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action giving rise to the order or writ and (2) the owner 

of record of the property as of the date of 

commencement of the action whether or not appearing 

in the action . . . .

[Id.] 

A party's motion to set aside a sheriff's sale is governed by Rule 4:65-5, 

which states, 

A sheriff who is authorized or ordered to sell real estate 

shall deliver a good and sufficient conveyance in 

pursuance of the sale unless a motion for the hearing of

an objection to the sale is served within 10 days after 

the sale or at any time thereafter before the delivery of 

the conveyance. Notice of the motion shall be given to 

all persons in interest, and the motion shall be made 

returnable not later than 20 days after the sale, unless 

the court otherwise orders. On the motion, the court 

may summarily dispose of the objection; and if it 

approves the sale and is satisfied that the real estate was 

sold at its highest and best price at the time of the sale, 

it may confirm the sale as valid and effectual and direct 

the sheriff to deliver a conveyance as aforesaid. 

The party objecting to the sheriff's sale must have a valid ground for the 

objection, such as "fraud, accident, surprise, irregularity, or impropriety in the 

sheriff's sale." Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 

317 (App. Div. 2002) (citation omitted); see also Burbach v. Sussex Cty. Mun. 

Util. Auth., 318 N.J. Super. 228, 236 (App. Div. 1999) (setting aside execution 

sale where non-debtor tenant in common failed to receive required notice of sale 

and objected promptly upon learning of sale). 
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Here, the sheriff's sale took place on April 27, 2016. The sheriff's deed 

was delivered to Citizens Bank on May 9, 2016. Thus, under Rule 4:65-5, 

defendant's motion was filed out of time. Citizens Bank sent notices of the sale 

to defendant via certified mail at both the property's address and at an alternate 

address provided by defendant, as required by Rule 4:65-2. Accordingly, we 

affirm the trial court's confirmation of the April 2016 sheriff's sale.

Motion to Vacate Final Judgment

"The decision whether to grant [a motion under Rule 4:50-1] is left to the 

sound discretion of the trial court, and will not be disturbed absent an abuse of 

discretion." Mancini v. EDS ex rel New Jersey Auto. Full Ins. Underwriting 

Ass'n, 132 N.J. 330, 334 (1993) (citing Court Inv. Co. v. Perillo, 48 N.J. 334, 

341 (1966)). Doubts regarding whether to grant the motion "should be resolved 

in favor of the parties seeking relief." Ibid. (citing Arrow Mfg. Co. v. Levinson, 

231 N.J. Super. 527, 534 (App. Div. 1989)). An abuse of discretion "arises when 

a decision is 'made 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. Immigr. 

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

Parties may move to vacate 
11 A-4909-16T1

a final judgment or order for the following reasons: (a) 

mistake, inadvertence, surprise, or excusable neglect; 

(b) newly discovered evidence which would probably 

alter the judgment or order and which by due diligence 

could not have been discovered in time to move for a 

new trial under R. 4:49; (c) fraud (whether heretofore 

denominated intrinsic or extrinsic), misrepresentation, 

or other misconduct of an adverse party; (d) the 

judgment or order is void; (e) the judgment or order has 

been satisfied, released or discharged, or a prior 

judgment or order upon which it is based has been 

reversed or otherwise vacated, or it is no longer 

equitable that the judgment or order should have 

prospective application; or (f) any other reason 

justifying relief from the operation of the judgment or 

order." 

[R. 4:50-1.] 

Motions must "be made within a reasonable time, and for reasons (a), (b) and 

(c) of R. 4:50-1 not more than one year after the judgment[.]" R. 4:50-2. Rule

4:50-1 "is designed to reconcile the strong interests in finality of judgments and 

judicial efficiency with the equitable notion that courts should have authority to 

avoid an unjust result in any given case." Tenby Chase Apartments v. N.J. Water 

Co., 169 N.J. Super. 55, 60 (App. Div. 1979) (quoting Hodgson v. Applegate, 

31 N.J. 29, 43 (1959)). Here, two years and five months passed from the entry 

of final judgment to defendant's motion to vacate the final judgment. Thus, 

defendant did not make her motion to vacate the final judgment within a 

reasonable time. See, e.g., Last v. Audubon Park Assoc., 227 N.J. Super. 602,
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607 (App. Div. 1988) (holding that a motion to vacate final judgment was not 

made within a reasonable time where eighteen months passed between the entry 

of final judgment and the motion to vacate). 

For these reasons, we find that the trial court did not abuse its discretion 

in refusing to enforce the settlement agreement, vacate the final judgment, or set 

aside the sheriff's sale. 

The remaining arguments raised by defendant are without sufficient merit 

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

Affirmed.