SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0859-18T1

HSBC BANK U.S., N.A., AS 

INDENTURE TRUSTEE FOR 

THE REGISTERED NOTEHOLDERS 

OF RENAISSANCE HOME EQUITY 

LOAN TRUST 2006-2, 

Plaintiff-Respondent, 

v. 

LOVEY FRANCES C. DEVANEY, 

Defendant-Appellant,

and

MR. DEVANEY, husband of LOVEY 

FRANCES C. DEVANEY, CITY OF

ATLANTIC CITY, and STATE OF 

NEW JERSEY, 

Defendants,

and 

WILLIAM G. BOLAND, 

Defendant/Intervenor-Respondent.

__________________________________

NOT FOR PUBLICATION WITHOUT THE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.
2

A-0859-18T1

Argued February 24, 2020 – Decided March 16, 2020

Before Judges Ostrer and Vernoia. 

On appeal from the Superior Court of New Jersey, 

Chancery Division, Atlantic County, Docket No. F012161-16.

Daniel J. Gallagher argued the cause for appellant. 

Kathleen McClure Massimo argued the cause for 

respondent (Houser LLP, attorneys; Kathleen McClure

Massimo, on the brief).

Scott E. Becker argued the cause for intervenorrespondent (Scott E. Becker, attorney; joins in the brief 

of respondent HSBC Bank USA, N.A.).

PER CURIAM 

In this mortgage foreclosure action, defendant Lovey Frances C. Devaney 

appeals from a September 18, 2018 order denying her motion for reconsideration 

of an August 10, 2018 order denying her motion to vacate default, the final 

judgment, and the sheriff's sale. Having considered the record in light of the 

applicable law, we are convinced the court did not abuse its discretion by 

denying defendant's reconsideration motion, and we affirm.

I

In 2006, defendant executed a note in the principal amount of $100,000, 

and secured payment of the note by executing a mortgage on residential property 
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located in Atlantic City. The mortgage and note were subsequently assigned to 

plaintiff, HSBC Bank, U.S., NA. In December 2013, the mortgage and note 

were modified by a mortgage modification agreement between defendant and 

plaintiff's loan servicer, Ocwen Loan Servicing, LLC (Ocwen).

Following defendant's default on the mortgage and note, plaintiff filed a 

foreclosure complaint in April 2016. Defendant did not answer or otherwise 

respond to the complaint, and default was entered on October 4, 2016. Plaintiff 

moved for final judgment, which the court entered on June 14, 2017. 

A scheduled sheriff's sale of the property was postponed to allow 

plaintiff's and defendant's review of alternatives to foreclosure. In September 

2017, Ocwen advised defendant her application for a loan modification trial plan 

was approved. The plan required that defendant make monthly mortgage 

payments in October, November, and December 2017.

In a December 18, 2017 letter, Ocwen advised defendant she was 

approved for a loan modification. The letter further advised that, to accept the 

loan modification agreement, defendant must make a monthly mortgage 

payment and return a signed copy of the agreement by January 1, 2018. The 

letter informed defendant "time is of the essence." 
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Defendant forwarded the mortgage payment, which Ocwen received on 

January 4, 2018, but Ocwen did not receive the signed loan modification 

agreement by the January 1, 2018 deadline. By February 2, 2018, Ocwen still

had not received the signed loan agreement, and, on that date, it notified 

defendant by letter that the loan modification was no longer available due to her 

failure to provide the signed loan agreement by January 1, 2018.

On March 6, 2018, plaintiff sent defendant notices of sale of the property;

plaintiff sent them to the property address and an alternative address as well.1 

On March 22, 2018, William Boland purchased the property.

2

 He subsequently 

recorded the deed with the Atlantic County Clerk's Office. 

Defendant filed a motion to vacate default and the final judgment, but the 

court denied the motion without prejudice because defendant failed to provide 

notice to Mr. Boland. Defendant later refiled the motion with notice to Mr. 

Boland.

1

 Plaintiff obtained an alternative address for defendant through the Atlantic 

County Tax Assessor, and served the pleadings, notices, and correspondence 

throughout the foreclosure proceedings and loan modification process to the 

property address and alternative address. Service of the complaint was also 

effectuated through publication. 

2 The Chancery Division later granted Mr. Boland's motion to intervene in the 

foreclosure case.

 
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Defendant's Motion to Vacate Default and the Final Judgment 

Defendant moved to vacate the October 4, 2016 default and the June 14, 

2017 final judgment. The appellate record shows the motion was supported by 

her counsel's certification, which refers to two annexed documents: a loan 

modification agreement signed by defendant and dated January 24, 2018, and a

photocopy of a document purportedly showing "[d]efendant has been making 

payments" on the mortgage. Although counsel's certification makes no 

reference to any other documents, it also includes as an exhibit the February 2, 

2018 letter from Ocwen to defendant entitled "DECISION ON YOUR 

REQUEST FOR MORTGAGE ASSISTANCE." 

In the appendix submitted in support of her appeal, defendant does not 

include any other certifications supporting the motion to vacate, and her brief in 

support of the motion makes no specific reference to any other certifications 

supporting the motion. Plaintiff's brief in opposition to the motion to vacate, 

however, referred to a certification of defendant that was apparently submitted 

in support of the motion, but neither party included in the record on appeal.3 We 

3

 As noted, the only certification supporting defendant's motion to vacate 

included in the record on appeal is defendant's counsel's certification. 

Defendant's counsel's certification did not establish any facts supporting the 

motion because it merely identified documents annexed as exhibits about which 
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therefore cannot consider it. See W.H. Indus., Inc. v. Fundicao Balancins, Ltda., 

397 N.J. Super. 455, 460 (App. Div. 2008) (noting a failure to include in the 

appellate record a document submitted in opposition to a motion before the trial 

court leaves "no basis" on which to review the trial court's ruling on the motion). 

In any event, for reasons we address in our discussion of defendant's legal 

arguments, the failure to include the certification in the record does not prevent

disposition of the issues raised on appeal. 

Defendant's brief in support of the motion to vacate offered three 

arguments. First, defendant argued plaintiff failed to properly serve her with 

notice of entry of default in accordance with Rule 4:43-1 and mailed notice of 

termination of the loan modification agreement to the wrong address. Second, 

she argued the final judgment should be vacated because she established 

excusable neglect and a meritorious defense as required by Rule 4:50-1. Her 

excusable neglect and meritorious defense claims were based on assertions that 

plaintiff relied on documents dated prior to December 2017; plaintiff's agent 

defendant's counsel clearly did not have personal knowledge. See R. 1:6-6 

(requiring that affidavits supporting a motion must be "made on personal 

knowledge" and "set[] forth only facts which are admissible in evidence"). The 

only certification based on defendant's personal knowledge in the appellate 

record is defendant's August 28, 2018 certification, but that certification was 

submitted in support of her motion for reconsideration of the court's August 10, 

2018 order denying her motion to vacate. 
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negotiated a loan modification agreement that "was effective December 1, 2017" 

and accepted payments in accordance with the agreement; and plaintiff sent 

notice "that the modification was rejected in February of 2018 to a vacant 

building" when it knew she lived elsewhere. 

Defendant's third argument in support of her motion to vacate the default 

judgement was that Ocwen was liable for fraudulent concealment because it 

allegedly failed to disclose the loan modification agreement would be void if 

defendant failed to sign and return the contract by a certain date. Defendant did 

not, however, include with her motion the December 18, 2017 letter from Ocwen 

enclosing the loan modification agreement; explaining "time is of the essence

and to accept the modification"; and requiring that she sign and return the loan 

medication agreement by January 1, 2018, and make the first payment by that 

date. 

Plaintiff supported its opposition to the motion with certifications from its 

counsel and from an Ocwen senior loan analyst. In pertinent part, the 

certifications generally described: (1) defendant's default on the mortgage and 

note; (2) the means of service of the foreclosure complaint, the pleadings 

submitted in support of the requests for entry of default and final judgment, and 

the documents related to the mortgage loan modification trial period and 
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agreement; (3) approval of defendant's participation in the mortgage 

modification trial plan; (4) the conditions imposed for defendant's entry into the

loan modification agreement; (5) defendant's failure to comply with the 

conditions precedent to entry into the loan modification, including her failure to 

sign and return the loan modification agreement by the January 1, 2018 deadline; 

and (6) the notification of defendant of her ineligibility for the loan modification 

agreement due to her failure to return the agreement within the required 

timeframe. The factual assertions in the certifications were supported by 

references to documents annexed as exhibits.

After hearing argument, the court rendered a detailed written decision, 

finding plaintiff's evidence established defendant was properly served with the 

complaint and all other required pleadings and notices prior to entry of default, 

the final judgment, and the sheriff's sale, and defendant presented no competent 

evidence establishing excusable neglect for her failure to respond to the 

complaint prior to entry of final judgment. The court also found defendant failed 

to present any evidence of a meritorious defense to the foreclosure complaint. 

The court rejected defendant's claim plaintiff accepted the loan 

modification agreement by receiving the payment on January 4, 2018, because 

Ocwen's December 18, 2017 letter stated time was of the essence and it would 
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accept the loan modification only if defendant signed and returned the agreement 

by January 1, 2018. The court found the evidence established defendant did not 

return the agreement by January 1, 2018, and, therefore, plaintiff properly 

"exercised [its] right to withdraw the [l]oan [m]odification [a]greement on 

February 2, 2018."4 The court entered an August 10, 2018 order denying 

defendant's motion to vacate default, the final judgment, and the sheriff's sale.

Defendant's Reconsideration Motion 

Defendant filed a motion for reconsideration of the court's August 10, 

2018 order. In support of the motion, defendant submitted a certification replete 

with factual assertions related to the destruction of the home on the property in 

Superstorm Sandy; her employment history; the loan modification trial period;

and her execution of the loan modification agreement. Defendant also asserted 

she did not receive notices and pleadings in the foreclosure proceeding and 

correspondence related to the loan modification. 

4

 The court also determined defendant presented no evidence supporting the 

vacation of the sheriff's sale, see First Trust NA v. Merola, 319 N.J. Super. 44, 

49 (App. Div. 1999) (explaining standard for vacating a sheriff's sale), and it 

found defendant received all required notices pertaining to the sale. Defendant 

does not make any argument challenging the court's denial of her request to 

vacate the sheriff's sale beyond her claim the court erred by denying her motion 

to vacate default and the final judgment. 
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In her brief supporting the motion, defendant reprised the arguments made 

in support of her motion to vacate default and the final judgment. She claimed 

the motion to vacate default should have been granted because plaintiff did not 

properly serve her in accordance with Rule 4:43-1. Defendant again asserted 

plaintiff was bound by the loan modification agreement because it accepted a 

mortgage payment after January 1, 2018, and the facts presented in her 

certification established excusable neglect and a meritorious defense permitting 

vacation of the final judgment under Rule 4:50-1(a) and (f). She further argued, 

for the first time, that plaintiff was bound by the loan modification agreement 

under the doctrine of promissory estoppel.

In a detailed and thorough written decision, the court determined 

defendant's reconsideration motion was founded on facts, documents, and 

arguments that were available, but not presented, in support of the motion to 

vacate default and the final judgment. The court observed that the documents 

annexed to defendant's certification were inconsistent and unsupported by any 

reliable evidence explaining their meaning or import, and that defendant 

asserted a legal argument—plaintiff was bound by the loan modification 

agreement under the doctrine of promissory estoppel—not asserted in support 

of her motion to vacate. The court also determined defendant failed to satisfy 
11 A-0859-18T1

her burden of establishing that its prior rejection of her claim she was not 

properly served with the pleadings and notices during the foreclosure proceeding 

was palpably incorrect or based on an irrational basis. See D'Atria v. D'Atria, 

242 N.J. Super. 392, 400 (Ch. Div. 1990). The court concluded defendant failed 

to demonstrate an entitlement to reconsideration under Rule 4:49-2 and entered 

a September 18, 2018 order denying defendant's motion. This appeal followed.

II

"Reconsideration is a matter within the sound discretion of the [c]ourt, to 

be exercised in the interest of justice." D'Atria, 242 N.J. Super. at 401; DoverChester Assocs. v. Randolph Twp., 419 N.J. Super. 184, 195-96 (App. Div. 

2011). We review the denial of a motion for reconsideration under the abuse of 

discretion standard. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 

1996) (citing CNF Constructors, Inc. v. Donohoe Constr. Co., 57 F.3d 395, 401 

(4th Cir. 1995)). An abuse of discretion occurs "when a decision is 'made 

without a rational explanation, inexplicably departed from established policies, 

or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 

N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 

123 (2007)). 
12 A-0859-18T1

The basis for the motion for reconsideration focuses on "what was before 

the court in the first instance." Lahue v. Pio Costa, 263 N.J. Super. 575, 598 

(App. Div. 1993). Indeed, a motion for "[r]econsideration cannot be used to 

expand the record and reargue a motion." Capital Fin. Co. of Del. Valley, Inc. 

v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008). It "is designed to seek 

review of an order based on the evidence before the court on the initial motion

. . . not to serve as a vehicle to introduce new evidence in order to cure an 

inadequacy in the motion record." Ibid.; see also Palombi v. Palombi, 414 N.J. 

Super. 274, 288 (App. Div. 2010) (finding a motion for reconsideration "is not 

appropriate merely because a litigant is dissatisfied with a decision of the court 

or wishes to reargue a motion . . ."). A court may "in the interest of justice," 

consider new evidence on a motion for reconsideration only when the evidence 

was not available prior to the decision by the court on the order which is the 

subject of the reconsideration motion. D'Atria, 242 N.J. Super. at 401; Fusco v. 

Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002). 

"Reconsideration should be used only for those cases which fall into that 

narrow corridor 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 the significance of probative, 
13 A-0859-18T1

competent evidence." Fusco, 349 N.J. Super. at 462 (quoting D'Atria, 242 N.J. 

Super. at 401). The proper object of a motion for reconsideration is to correct a 

court's error or oversight, and not to "re-argue [a] motion that has already been 

heard for the purpose of taking the proverbial second bite of the apple." State 

v. Fitzsimmons, 286 N.J. Super. 141, 147 (App. Div. 1995), certif. granted, 

remanded on other grounds, 143 N.J. 482 (1996). 

Our review of the record before the court on the motion to vacate is 

hindered by defendant's failure to include in the record on appeal what appears 

to be her certification supporting the motion to vacate. See Johnson v. 

Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001) 

("[T]he failure to supply pleadings that are essential to the proper consideration 

of the issues hinders our appellate review."). Although we are not "obliged to 

attempt review of an issue when the relevant portions of the record are not 

included," Cmty. Hosp. Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly 

Fried & Forte, PC, 381 N.J. Super. 119, 127 (App. Div. 2005); see also R. 2:6-

1(a)(1) (stating the appendix "shall contain . . . such other parts of the 

record . . . as are essential to the proper consideration of the issues"), based on 

the record presented, we are able to determine the court correctly denied the 

reconsideration motion without regard to whether the facts and documents 
14 A-0859-18T1

supporting the reconsideration motion were first presented to the court on the 

motion to vacate default and the final judgment.

Defendant does not argue the court erred by denying her motion for 

reconsideration, at least in part, based on its finding the motion was based on 

factual allegations and documents that were available, but not presented, in 

support of the motion to vacate. See, e.g., Palombi, 414 N.J. Super. at 289 

(explaining facts known to, but not presented by, a party do not support a request 

for reconsideration of the order entered on the underlying motion). An argument 

not briefed on appeal is deemed waived. See Drinker Biddle & Reath LLP v. 

N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011). 

Thus, even though defendant fails to include in the record on appeal her 

certification in support of the motion to vacate and, thus, effectively precludes 

our consideration of all of the facts and evidence presented in support of that 

motion, we affirm the court's determination defendant's reconsideration motion 

should be denied because it was, at least in part, based on facts and documents 

available, but not presented, when the court decided the motion to vacate. See

Palombi, 414 N.J. Super. at 289. 

On appeal, defendant argues the court abused its discretion by denying the 

reconsideration motion without considering evidence she provided in support of 
15 A-0859-18T1

the motion. More particularly, defendant claims the court did not consider that

plaintiff's acceptance of a mortgage payment in January 2018 rendered the loan 

modification agreement binding. Defendant also asserts the court failed to 

consider that she did not receive Ocwen's February 2, 2018 letter because it was 

sent to an address where defendant asserts plaintiff knew she had not lived since 

November of 2012.

Defendant's arguments are undermined by the record. The court directly 

addressed, and rejected, defendant's claim plaintiff's acceptance of the January 

2018 payment created a binding loan modification agreement. The court 

explained Ocwen's December 18, 2017 letter conditioned plaintiff's acceptance 

of the loan modification on defendant's compliance with two conditions: (1)

making a mortgage payment by January 1, 2018; and (2) properly signing and 

returning the agreement by January 1, 2018. The court determined that even if

defendant made a mortgage payment by January 1, 2018, there was no competent 

evidence presented in either the motion to vacate or reconsideration motion 

establishing defendant complied with the second prerequisite for her entry into 

a binding loan modification agreement, and the competent evidence presented 

by plaintiff established she did not. 
16 A-0859-18T1

Defendant's counsel's certification supporting the motion to vacate 

annexed a loan modification agreement dated January 24, 2018, that was 

purportedly signed by defendant. However, that agreement could not have been 

delivered to plaintiff prior to January 1, 2018, and therefore it actually supports

both plaintiff's position defendant failed to timely return the agreement and the 

court's finding defendant did not satisfy an essential condition for her entry into 

a binding loan modification agreement. 

Moreover, defendant's certification in support of the motion for 

reconsideration includes conflicting copies of the signed loan agreement. Both 

copies bear her purported signature, but one is dated January 24, 2018, and the 

other is dated December 28, 2017. In her certification, defendant asserts she 

signed the loan agreement on December 28, 2017, but she does not state she 

returned the loan agreement to plaintiff prior to January 1, 2018, as required by 

Ocwen's December 18, 2017 letter. In other words, and as the court found, the 

record on the motion for reconsideration was devoid of evidence defendant did 

anything to deliver the signed agreement to plaintiff in accordance with the 

"time is of the essence" January 1, 2018 deadline.

Similarly, defendant's claim the February 2, 2018 loan modification 

agreement rejection letter was improperly sent to an address at which she had 
17 A-0859-18T1

not lived since November 2012 ignores the record. The February 2, 2018 letter 

was sent to the identical address as the December 18, 2017 letter enclosing the 

loan modification agreement, and it is undisputed defendant received the 

December 18, 2017 letter.

In sum, the record shows the court carefully considered defendant's 

arguments and evidence supporting her reconsideration motion, and it made 

appropriate findings and conclusions of law. R. 1:7-4. We reject defendant's 

assertions to the contrary. The record further establishes defendant made no 

showing that the court's order denying the motion to vacate rested on a palpably 

incorrect or irrational basis, or that the court failed to consider or appreciate 

probative, competent evidence. See Fusco, 349 N.J. Super. at 462. We therefore 

discern no basis to conclude the court abused its discretion by denying the 

reconsideration motion. See D'Atria, 242 N.J. Super. at 401.

Defendant also argues the court erred by rejecting her argument she was 

entitled to vacate default and the final judgment by application of the doctrine 

of promissory estoppel. It is undisputed defendant did not make that argument 

in support of her motion to vacate. Therefore, the court properly rejected the 

argument because it was first asserted by defendant on her motion for 

reconsideration. See Medina v. Pitta, 442 N.J. Super. 1, 18 (App. Div. 2015) 
18 A-0859-18T1

(rejecting, as support for a motion for reconsideration, a party's reliance on a 

legal argument that was available, but not presented, in the underlying motion). 

We also reject defendant's claim the court erred by denying the 

reconsideration motion because she presented evidence on the motion to vacate 

establishing excusable neglect and a meritorious defense under Rule 4:50-1. 

The court expressly rejected this claim in its decision on the motion to vacate, 

determining the competent evidence presented established defendant was 

properly served with the complaint; she failed to provide any evidence 

demonstrating excusable neglect for never responding to the complaint; and her 

claimed meritorious defense—that plaintiff was bound by the loan modification 

agreement—ignored that she did not comply with the conditions precedent to 

her entry into a binding agreement with plaintiff. 

Defendant failed to sustain her burden of demonstrating that the court's 

rejection of her request for relief under Rule 4:50-1 on the motion to vacate was 

palpably incorrect or irrational, or that the court failed to consider the pertinent 

evidence. See Fusco, 349 N.J. Super. at 462. Thus, the court did not abuse its 

discretion by rejecting the argument when it was presented on defendant's 

reconsideration motion.

Affirmed.