SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-2469- 21 A- 2766

- 21 M&T BANK, Plaintiff-Respondent,

v. VAROUJAN KHOROZIAN, Defendant-Appellant,

and

ANGELA KHOROZIAN, Defendant-Respondent,

and STATE OF NEW JERSEY,

Defendant.

______________________________ M&T BANK, Plaintiff-Respondent,

v. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A-2 469

- 21

VAROUJAN KHOROZIAN, Defendant-Respondent,

and

ANGELA KHOROZIAN, Defendant-Appellant,

and STATE OF NEW JERSEY,

Defendant.

_______________________________

Submitted April 9, 2024

– Decided May 10, 2024 Before Judges Sumners and Torregrossa- O’Connor

. On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F- 006389

- 19. Asatrian Law Group, LLC, attorneys for appellant in A2469

- 21 and respondent in A- 2766

- 21 Varoujan Khorozian (Vartan Asatrian, of counsel and on the briefs; Jeffrey Zajac, on the briefs ). Jay Kanetkar, Esq., LLC, attorney for appellant in A2766

- 21 and respondent in A-2469- 21 Angela Khorozian (Jayat Pramod Kanetkar, of counsel; Jeffr ey Zajac, on the brief). Parker McCay PA, attorneys for respondent M&T Bank (Eugene R. Mariano, on the brief).3 A-2 469

- 21

PER CURIAM In these separate but related residential foreclosu re appeals which we

consolidate to i ssu e a single opinion, Angela Khorozian and Varoujan

Khorozian 1 challenge the Chancery court's March 18, 2022 order denying reconsideration of its November 8, 2021 order denyi ng Angela's motion to

vacate default and its January 28, 2022 order denying her motion to compel amendment of the foreclosure complaint to add her a s defendant. Plaintiff, M & T Bank, commenced foreclosure after V aroujan's default on a loan, which Varoujan, allegedly unbeknownst to An gela, secured with a mortgage on their home (the property) in Alpine. C entral to both appeals is the Chancery court's determination that Angela, seeking to vacate default against her over two years after its entry, lacked good cau se under Rule 4:43 -3. Specifically, the court denied the motion as an uns uccessful delay tactic, finding Angela inexcusably failed to respond earlier despit e having actual notice of the foreclosure and default, and she nevertheless held no interest in the property, having relinquished both ownership and possessory r ights decades earlier when Varoujan simultaneously purchased the property as s ole owner.

1 For clarity, we reference the Khorozians by their f irst names.4 A-2 469

- 21

After careful review of the record and the Chancery court's trio of decisions repeatedly exploring and rejecting the cl aims raised here, we discern

no abuse of discretion and affirm.

I.

A. The Deeds and The Loan We glean the following facts and procedural history from the record. Angela and Varoujan were married in 1980 and current ly reside in the property , purchased by Varoujan in 1998. Varoujan acquired t he property solely in his name because Angela admittedly "had recently filed a bankruptcy to address a large business loss, and [they] could not get financ ing for the purchase." Consequently, the deed, dated January 14, 1998, and recorded on January 28, 1998 (Deed I), lists Varoujan as sole owner. A second deed (Deed II), labelled a "quitclaim deed " and contemporaneously executed on January 14, 1998 and filed on January 28, 1998, on its face memorializes Angela's intent to irrevoc ably "release," "assign," "extinguish," and "alienate" her present and future rights and claims to the property to Varoujan. Deed II specifically states that Angela, as "Grantor," "grants and conveys (transfers ownership of) the pr operty . . . to the Grantee," designated as Varoujan. Deed II bears the Grantor's signature and declares:5 A-2 469

- 21 "In accordance with N.J.S.A. 37:2-18 etc. and the amendment and supplements thereto it is specificall y intended hereby to release and assign irrevocably t o the party of the second part herein [, Varoujan,] any v ested, inchoate or possible future estate of (dower or cur tesy, as applicable) arising by virtue of statute, court decision, public policy or implication of law out o f the marital relationship of the parties hereto and to equitable distribution under N.J.S.A. 2A:34-23. It is also the intention of the Grantor herein to release , extinguish and alienate any right of possession the Grantor may have pursuant to N.J.S.A. 3B:28-3." Ten years later, to fund a business opportunity, Va roujan executed a $2,800,000 promissory note in favor of plaintiff's predecessor, Hudson City Savings Bank, secured by a mortgage on the property . Only Varoujan signed the note and mortgage, and the Khorozians claim Ang ela knew nothing of the

loan at the time. Varoujan defaulted on payment in late 2018, and pla intiff accelerated the loan, demanding the remaining princ ipal and unpaid interest. After mailing to Varoujan the notice of intent to a ccelerate and foreclose, plaintiff, on April 3, 2019, filed the present forec losure complaint. B. Early Foreclosure Proceedings Plaintiff captioned the foreclosure complaint: "M & T Bank v. Varoujan Khorozian; Mrs. Varoujan Khorozian, His Wife; State of New Jersey" and the case information statement designated Mrs. Varoujan Khorozian as a "fictitious party." After four unsuccessful attempts to serve Mrs. Varoujan Khorozian6 A-2 469

- 21

personally at the residence, plaintiff effectuated service via certified mail to the post office box mailing address for the property. A l is pendens was recorded on March 23, 2019. Varoujan filed a contesting answer on June 24, 2019 , making no reference to Angela or her alleged spousal interest in the pr operty. On July 19, 2019, the court granted default against "Mrs. Varoujan Khoroz ian," as no answer or pleading had been filed. After plaintiff moved for summary judgment against Varoujan in October 2019, Varoujan cross-moved to compe l discovery, opposed plaintiff's summary judgment motion, and moved to di smiss, again apparently with no mention of Angela or her potential interest

. 2 On December 31, 2019, the court granted plaintiff's motion for summary jud gment and denied Varoujan's

cross-motions. Varoujan filed but withdrew a motion for reconsider ation, instead entering

into three consecutive consent orders between March 202 0 and March 2021, in which plaintiff voluntarily stayed application for f inal judgment giving Varoujan the ability to sell the property. In exchange, Var oujan expressly waived his right to appeal any final judgment entered by the trial c ourt. Varoujan never sold the

2 It appears the only mention of Angela Khorozian in Varoujan's filings was a demand to produce "any and all notices made to Ange la Khorozian, the wife and proof of service of the foreclosure on Angela Khoro zian."7 A-2 469

- 21

property or satisfied the obligation, nor did he ra ise or invoke Angela's alleged interest to oppose foreclosure. By late 2021, the extensions expired, and foreclosure proceeded toward final judgment.

C. Angela's Motions Around that same time in October of 2021, Angela, f or the first time, moved to vacate the 2019 default. She acknowledged the deliberate strategy back in 1998 to have Varoujan acquire the home as s ole owner due to her bankruptcy. Asserting a spousal possessory interes t in the property where she claimed to reside since the time of its purchase, A ngela denied signing Deed II or having knowledge of Varoujan's loan. Challengin g service, Angela contended she was not properly named and was away at the time of service by mail to the post office box Varoujan maintains. Admitting that she returned home in late

2019 and knew of the foreclosure and default as far back as January of 2020, Angela alleged that she delayed taking action becau se she consulted counsel

who gave her wrongful advice that the courts were clos ed and that she lacked a defense. Angela indicated she would retain a handw riting expert to prove the signature on Deed II was forged. She alleged, alternati vely, that even if she had signed Deed II, the law at the time, specifically N .J.S.A. 3B:28-3 establishing spousal possessory rights, required both spouses' s ignatures and prohibited unilateral renunciation of possessory rights to a m arital residence.8 A-2 469

- 21

Plaintiff urged that Angela was inexcusably late and nonetheless lacked standing because she relinquished all rights and cl aims to the marital property via Deed II. As such, plaintiff explained that it never con sidered Angela a party to the case and instead named "Mrs. Varoujan Khoriz ian" to cover any possible subsequent spouse that might have acquired an inter est after Angela extinguished her rights. Plaintiff argued that the 1 998 version of N.J.S.A. 3B:28-3 required only the "consent" of both spouses , not both signatures, to extinguish one spouse's possessory right, which cou ld be readily inferred here from Varoujan's simultaneously purchasing the prope rty as sole owner by grant from Angela. The Chancery court, applying Rule 4:43 -3's "good cause" standard, denied Angela's motion. In a written decision accompanyin g the November 8, 2021 order, the court found that Angela, aware of the de fault since at least January 2020, offered no sufficient "excuse or reason for wh y [she] waited nearly two years to take action as to the default." The court characterized the motion as "simply a tactic to delay this action further," tak ing issue with counsel's admission that throughout the proceedings, includin g the seventeen months of consent stays, the Khorozians made no attempt to se ll the property. The court relied on Deed II and determined that Angela lacked a meritorious defense as9 A-2 469

- 21

she "never signed the mortgage or note" and had no "interest in the subject property because she waived her interest in 1998." Thereafter, plaintiff moved for entry of final judgm ent. In support, plaintiff's counsel certified that the pleadings ref lected that "Angela Khorozian may be the spouse of Varoujan . . . ." The certifi cation further referenced Deed II as conveying entirely Angela's interest in the p roperty and identified a March 23, 2020 deed conveying an interest from Varoujan to Angela. As such, counsel confirmed plaintiff's position that Angela's "intere st is subject to and bound by Plaintiff's foreclosure and the request for Final Ju dgment . . . ." Plaintiff’s counsel further certified that "Mrs. Varoujan Khoro zian, his wife, remains a necessary defendant," because "she was served with the complaint and the marital status of Varoujan Khorozian has not been c onfirmed by Varoujan

Khorozian." Varoujan filed only a general objection to the fore closure amount baldly claiming it was "inaccurate, inflated, and in violat ion of the Rules of the Court," which the court denied for lack of specificity unde r Rules 4:64-1(d)(3) and 4:64- 9. Angela filed a "cross-motion" to compel plainti ff to amend the complaint to include her as a specific defendant and to allow he r to file an answer. She renewed her prior arguments and claimed that a judgm ent against "Mrs. Varoujan Khorozian" would mislead creditors to assu me the judgment was10 A-2 469

- 21

against her without first allowing her the ability t o answer and contest. Plaintiff again countered that Angela has no interest in the property, further urging that Angela's attempt to relitigate the default fell out side the limited scope of permissible Rule 4:64 -1(d)(3) objections. The court denied Angela's motion calling it "the la test effort to prolong the foreclosure action" when Angela "does not have an interest in the subject property." Finding her claims outside the reach of Rule 4:64 -1 relief, the court found Angela sought to improperly "re-litigate the entire matter" despite the court's earlier ruling that she lacked a meritoriou s defense. The court deemed the fictitious spouse designation "irrelevant," exp laining that "the fact remains that Angela Khorozian expressly and irrevocably rel eased and assigned all her interest in the property to Mortgagor." Further, t he court explained:

Because of that fact, [p]laintiff is unable to independently confirm that [m]ortgagor has been married to Angela Khorozian at all times since she transferred her interest in the subject property to Mortgagor in 1998. Therefore, [p]laintiff intentio nally chose to list [d] efendant as “Mrs. Varoujan Khorozian, his wife” because, despite the admission [p]laintiff knew [d]efendant was Mortgagor's wife, [p]laintiff did not want to risk excluding [d]efendant from its [m] otion for [f] inal [j]udgment since [p]laintiff must insure clear title after the subject property is sold at Sherrif f Sale. Final judgment was entered on February 7, 2022.11 A-2 469

- 21

Angela filed a motion for reconsideration on Februa ry 16, 2022, joined by Varoujan with no independent filing, which was deni ed. The court found the motion raised for the third time the same previousl y rejected arguments and amounted to "nothing more than an attempt to take a nother bite at the proverbial apple after Final Judgment was entered . . . ." Fr om this order, both Angela and Varoujan appeal.

II. A. Angela's Appeal Angela raises the following arguments for our consid eration:

BECAUSE THE CHANCERY DIVISION COMMITTED PLAIN ERROR IN DENYING ANGELA'S MOTION FOR RECONSIDERATION, THE FINAL JUDGMENT ENTERED AGAINST THE MORTGAGOR SHOULD BE VACATED. A. The Chancery Division Committed Reversible Error In Denying the Motion to Vacate the Entry of Default.

B. The Defendant Possesses a Meritorious Defense Under the Possessory Rights Granted to Her By N.J.S.A. 3B:28- 3. C. The Chancery Division's Decision and Reasoning With Respect to . . . Plaintiff's Fictitious Spouse Designation Fails to Comport With Well[-]Established Law.12 A-2 469

- 21

Angela contends that the Chancery court abused its discretion in denying reconsideration of its earlier decisions. She agai n argues that good cause existed to vacate the default as "[t]here was no willful or bad faith conduct" and "[t]he default was entered without her knowledge, and her failure to answer was the result of excusable neglect." She reiterates her c laim that she was not properly named in the complaint or served, despite having ac tual notice as far back as January 2020 by her own admission. Angela asserts that nevertheless the court ignored that she "possesse[d] a strong defense on t he merits." She maintains that although she deeded the property to her h usband at the time of its purchase, her rights in the property we re not extinguished as she did not sign Deed II and, relying on the 1998 version o f N.J.S.A. 3B:28-3, the deed is invalid nonetheless without Varoujan's signature . She further contends that,

under Rules 4:26 -5 and 4:26-6, the court improperly failed to compe l amendment of the complaint to allow her to assert h er position and insists that default judgment should not stand against a fictiti ous party when her identity is

known. Plaintiff responds that the court properly denied re consideration of its decisions because Angela holds no interest in this property, as Deed II, taken together with Deed I, simultaneously created and re corded, reflects that both Angela and Varoujan intended and consented that Ang ela have no present or13 A-2 469

- 21

future interest in the property to admittedly avoid her creditors in 1998. As such, plaintiff asserts that it properly named "Mrs. Varou jan Khorozian, his wife" as the defendant and judgment must stand as entered. Further, plaintiff contends that Angela's unreasonably belated attempt to vacat e default failed to justify the two-year delay or show a meritorious defense suppor ting the Chancery court's repeated rejection of those arguments.

B. Varoujan's Appeal Varoujan 's appeal mirrors Angela's, with a brief identical to Angel a's with the exception of a slightly edited cover page. Pla intiff responds that Varoujan's appeal should be summarily dismissed as waived by h is consent orders in the matter foregoing his right to appeal. Alternativel y, plaintiff incorporates and repeats its arguments in response to Angela's indist inguishable claims. In his reply brief, Varoujan counters that his consent agr eements do not bar his appeal because the Chancery court applied incorrect legal standards and debuts a challenge to the calculation of the final judgment amount.

III.

A.

We review with deference a trial court's denial of a motion for

reconsideration under Rule 4:49 -2 and disturb those findings only upon an abuse of discretion. Branch v. Cream-O-Land Dairy, 244 N .J. 567, 582 (2021). A14 A-2 469

- 21

dissatisfied litigant's desire to reargue an unsucce ssful motion does not warrant reconsideration. Palombi v. Palombi, 414 N.J. Supe r. 274, 288 (App. Div. 2010). Indeed, "a motion for reconsideration provides the court, and not the litigant, with an opportunity to take a second bite at the ap ple to correct errors inherent in a prior ruling." Medina v. Pitta, 442 N.J. Supe r. 1, 18 (App. Div. 2015). Thus,

a trial court's discretion will not be disturbed un less its determination lacked "a rational explanation, inexplicably departed from es tablished policies, or rested on an impermissible basis." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc ., 191 N.J. 88, 123 (2007)). Likewise, we do not disturb trial court decisions o n motions to vacate

default absent an abuse of discretion. See U.S. Ba nk Nat. Ass'n v. Curcio, 444 N.J. Super. 94, 105 (App. Div. 2016); see also Guil laume, 209 N.J. at 467. It is well-settled that "the requirements for setting asi de a default under Rule 4:43

- 3 are less stringent than . . . those for setting asi de an entry of default judgment

under Rule 4:50 -1." N.J. Mfr.'s Ins. v. Prestige Health Grp., 406 N.J. Super. 354, 360 (App. Div. 2009) (citing Bernhardt v. Alden Caf e, 374 N.J. Super. 271, 277 (App. Div. 2005)). Under Rule 4:43 -3, a court may vacate the entry of default upon a mere showing of "good cause," which exists i n the "presence of a meritorious defense . . . and the absence of any co ntumacious conduct . . . ." O'Connor v. Altus, 67 N.J. 106, 129 (1975). Consider ing whether good cause to15 A-2 469

- 21

vacate default exists "requires the exercise of sou nd discretion by the court in light of the facts and circumstances of the particu lar case." Ibid. ; see also Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232 (App. Div. 2002) (explaining that the application o f good cause "requires the exercise of sound discretion in light of the facts and circumstances of the particular case considered in the context of the pu rposes of the Court Rule being applied"). Applying this standard, we discern no ba sis to disturb the Chancery court's decisions that are grounded in the record a nd applicable law. In denying Angela's motion to vacate default and he r cross-motion to compel amendment of the complaint to include her as defendant, the court reasonably concluded that Angela's failure to take timely action, admittedly knowing of the forfeiture action and default for ap proximately two years, undermined any claim of good cause. Attuned to the history of the proceedings , the court view ed Angela's motion, coming just as Varoujan's stays o f litigation expired and the matter verged on final judgment as a delib erate delay tactic. As contumacious conduct is antithetical to good cause, we take no issue with the court's conclusion that the motions were designed t o stall the matter as final

forfeiture became imminent. Further, we discern no abuse of discretion in the c ourt 's reliance upon Deed II to conclude Angela held no interest in the property a nd therefore lacked16 A-2 469

- 21

a meritorious defense. On its face, Deed II unambi guously identified its scope and intent to "irrevocably" transfer and extinguish vested and future rights and claims to ownership, spousal possessory interest, a nd equitable distribution of the property. N.J.S.A. 3B:28-3, in its present and prior forms, entitles "married individuals to joint possession" of any jointly occupied "principal marital residence." That right, then and now, is not absol ute. Angela correctly observes that N.J.S.A. 3B:28‐3 in 1998, provided that a spou sal possessory interest "may not be released, extinguished or alienated without the consent of both spouses." Here, however, Deeds I and II, executed and filed in tandem, clearly support the inference that the transfer of Angela's rights occu rred by consent of both Angela and Varoujan to admittedly avoid Angela's creditors . We also find unavailing Angela's belated claim that Deed II was forged. Wit hout a handwriting expert or further explanation, the court was not compelled to accept at face value her certification denying the authenticity of her signa ture. See Miller v. Bank of Am. Home Loan Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015) (finding in the context of summary judgment that "s elf-serving assertions, unsupported by documentary proof . . . are insufficient to create a genuine issue of material fact."). Likewise, we find no error in the Chancery court's denial of Angela's motion to compel amendment of the complaint. Await ing final judgment under17 A-2 469

- 21

Rule 4:64 -1(d)(3), objections were restricted to specific and detailed disputes of the amount due. Ibid. (requiring objections to state "with specificity the basis of the dispute" and present "a specific objection t o the calculation of the amount due . . ."). Angela's motion made no such challeng e. Instead, ignoring the court's prior ruling that she had no interest in the proper ty, she filed a "cross-motion"

in an improper effort to resuscitate her prior failed claims. We concur with the court's determination that Angela's attempted retre ad of her prior arguments was not cognizable at that juncture. Despite viewing Angela's application as procedurall y flawed, the court again recounted its basis for rejecting her arguments. Reg arding the decision to proceed to final judgment against "Mrs. Varoujan Kh orozian," the court explained that although plaintiff knew of Angela's existence, plaintiff was "unable to independently confirm that Mortgagor has been married to Angela

. . . at all times since she transferred her intere st in the subject property . . . ." Recognizing that plaintiff was obligated to insure g ood title, the court did not abuse its discretion in finding the general designa tion appropriate in these

circumstances. See R. 4:26 -5 (allowing for the designation of an unknown

sp ouse in a Rule 4:4 -5 in rem action by the “given name and surname . . . ” of

the known defendant spouse with “Mrs. [or alternatively Mr. as appropriate ] prefixed thereto” ).18 A-2 469

- 21

Angela's claims fell far outside the "narrow corrid or" of cases ripe for reconsideration "in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2 ) it is obvious that the [c]ourt either did not consider, or failed to appreciate th e significance of probative, competent evidence . . . ." Triffin v. SHS Grp., LL C, 466 N.J. Super. 460, 466 (App. Div. 2021). We therefore see no abuse of dis cretion in the Chancery court's denying Angela's application for reconsider ation of these prior decisions.

B. We need not reach the merits of Varoujan's appeal a s he expressly waived his right to appeal each time he executed three sepa rate and consecutive consent agreements to delay foreclosure. See Mt. Hope Dev. Assocs. v. Mt. Hope Waterpower Project L.P., 154 N.J. 141, 147 (1998) ( recognizing that voluntary and knowing waiver of the right to appeal is valid and enforceable). Nevertheless, we comment only to state the obvious— as Angela's appeal fails, so does Varoujan's as it simply echoes Angela's argu ments and repeats verbatim her claims and brief on appeal. To the extent we have not specifically addressed Va roujan's remaining arguments, we conclude they are without sufficient m erit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). The consolidated appeals are affirmed.