SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5104-17T3

OCWEN LOAN SERVICING LLC,

Plaintiff-Respondent,

v.

TOSSA D. THORPE,

Defendant-Appellant,

and

R and R SURGICAL ASSOCIATION, 

CHESTERFIELD TOWNSHIP, NEW

JERSEY HOUSING & MORTGAGE 

FINANCE AGENCY, STATE OF NEW

JERSEY, THE RIDINGS HOMEOWNERS

ASSOCIATION, INC., and RANCOCAS

ANESTHESIOLOGY,

Defendants.

___________________________________

Submitted September 16, 2019 – Decided

Before Judges Sumners and Geiger.

NOT FOR PUBLICATION WITHOUT THE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.

September 26, 2019
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A-5104-17T3

On appeal from the Superior Court of New Jersey, 

Chancery Division, Burlington County, Docket No. 

F-010710-16.

Tossa D. Thorpe, appellant pro se.

Blank Rome LLP, attorneys for respondent (Francis 

Xavier Crowley and Michael P. Trainor, on the brief).

PER CURIAM

Defendant Tossa D. Thorpe appeals from a Chancery Division order 

denying her motion to vacate the final judgment of foreclosure and sheriff's sale, 

and to dismiss the complaint, in this residential mortgage foreclosure action. 

We affirm.

On October 26, 2007, Thorpe executed a promissory note (the Note) in 

the principal amount of $64,390 in favor of GMAC Mortgage LLC, f/k/a GMAC 

Mortgage Corporation. On the same day, Thorpe executed a mortgage affecting 

her property in Chesterfield Township (the Property), in favor of Mortgage 

Electronic Registration Systems, Inc. (MERS), as nominee for GMAC 

Mortgage, LLC f/k/a GMAC Mortgage Corporation, to secure payment of the 

Note. MERS recorded the mortgage on December 14, 2007. 

On February 4, 2009, MERS assigned the mortgage to GMAC Mortgage, 

LLC. The assignment was recorded on March 10, 2009. The mortgage was 
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reassigned to plaintiff Ocwen Loan Servicing, LLC on March 7, 2016. Plaintiff 

recorded the second assignment on March 22, 2016. 

Thorpe defaulted on the payments required by the Note. Plaintiff filed the 

complaint on April 15, 2016. The summons and complaint were served on 

Thorpe's mother at her residence in Burlington (the Burlington residence). 

Plaintiff then filed an amended complaint on May 18, 2016. Service of the 

amended complaint was attempted at the Property on June 12, 2016. The process 

server indicated the Property was visibly vacant, without furnishings inside and 

an accumulation of old mail. A neighbor advised the process server that the 

Property was vacant. Plaintiff then served Thorpe with the amended complaint 

by regular and certified mail, return receipt requested, addressed to the 

Burlington residence. The certified mail went unclaimed; the regular mail was 

not returned by the postal service as undeliverable. Thorpe did not file a 

responsive pleading to the complaint or amended complaint. 

An order for default was entered on February 2, 2017, and uploaded into 

eCourts on February 13, 2017.1 On June 21, 2017, a final judgment of 

foreclosure was entered in the amount of $75,635.23. The Property was sold by 

sheriff's sale on October 19, 2017. Plaintiff was the successful bidder at the 

 

1

 Through clerical error, the order for default was dated February 2, 2016.
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sale. The Property was conveyed to plaintiff by sheriff's deed dated October 30, 

2017. Plaintiff applied for a writ of possession of the Property in February 2018. 

On May 3, 2018, Thorpe moved to vacate the entry of default and final 

judgment of foreclosure, cancel the sheriff's sale, and to dismiss the complaint. 

Thorpe argued: (1) the order entering default is defective and should be vacated 

because it was entered before the complaint was filed; (2) the judgment of 

foreclosure must be vacated because the summons and complaint was not served 

on her; and (3) the judgment was procured by fraud. 

The motion judge issued an order and written statement of reasons 

denying the motion in its entirety. As to the February 2, 2016 order entering 

default, the motion judge determined the clearly erroneous date was a mere 

clerical error. The judge noted the motion to enter default was filed on January 

18, 2017, and the order granting the motion "was uploaded to eCourts on 

February 13, 2017." The order mistakenly stated 2016 "when it should have 

stated 2017." The motion judge corrected the date of the order entering default

to February 2, 2017, pursuant to Rule 1:13-1. 

As to vacating the final judgment under Rule 4:50-1, due to alleged lack 

of service of process, the motion judge stated:

Plaintiff provides an affidavit of service 

indicating that service of the initial summons and 
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complaint was effected upon defendant by serving 

JoAnne Thorpe, defendant's mother, at [the Burlington 

residence]. A "Proof of Diligence" provided by 

plaintiff indicates that service of the amended 

complaint was attempted at the subject property but 

was unsuccessful. Among the reasons listed for the 

unsuccessful attempt at service were: "property is 

visibly vacant", "no furnishings inside", "junk piled up 

inside the house", "accumulation of old mail". 

Additionally, a "male neighbor . . . confirmed 

vacancy."

Plaintiff thereafter sent the amended complaint 

by regular and certified mail, return receipt requested 

to the address of [the Burlington residence]. Plaintiff 

did not receive a signed return receipt, but the regular 

mailing was not returned as undeliverable. 

Plaintiff moved for final judgment on May 25, 

2017. The certification of service indicates copies 

were mailed to defendant both at the subject property 

and at [the Burlington residence]. Final judgment was 

entered on June 21, 2017 and plaintiff served 

defendant with a copy thereof by forwarding it to both 

the subject property and [the Burlington residence]. 

Notice of the Sheriff's Sale was also sent to defendant 

at both addresses by certified mail and/or by courier 

service. Despite the several notices sent to defendant 

at both addresses, defendant did not file the within 

motion to vacate until May 17, 2018.

Defendant maintains that she was not served a 

copy of the summons and complaint and that service 

upon her mother, JoAnn Thorpe was ineffective 

because she was never a household member "of the 

subject property" and that the subject property is her 

"primary residence." Defendant further disputes the 

accuracy of the statements made in the return of 
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service suggesting that the property was vacant. 

Defendant avers that the subject property was and is 

her residence. Defendant states that she learned of the 

foreclosure from a "third-party" whom she fails to 

identify. Defendant does not dispute having received 

any of the other notices of the pleadings in this matter, 

or explain why she delayed in filing the within 

motion. Further, although [Thorpe] certifies that the 

subject property is her principal residence, she does 

not certify that [the Burlington residence] was not her 

dwelling place or usual place of abode.

The judge found Thorpe failed to demonstrate exceptional circumstances 

to justify vacating the judgment under Rule 4:50-1(f). She explained:

Here, [Thorpe] has not explained why she did 

not receive the many notices sent to her at the subject 

property that she maintains is her place of residence. 

In fact, [Thorpe] does not indicate that she did not 

receive any of those notices or when it was she 

became aware of the current proceedings. Plaintiff 

has served all notices in accordance with the 

requirements imposed upon it. Plaintiff would be 

unduly and unnecessarily prejudiced if judgment were 

to be vacated, where the property has been sold at 

sheriff's sale after all due notice was provided to 

[Thorpe]. 

Finally, as to vacating the sheriff's sale, the motion judge determined 

Thorpe "makes no assertions that the Sheriff's sale was procedurally or 

substantively defective in any way and thus she raises no valid basis for vacating 

the sheriff's sale." This appeal followed.
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On appeal, Thorpe argues: (1) the trial court erred and abused its 

discretion in refusing to set aside a default judgment under Rules 4:50-1(d), (f), 

and 4:50-3; (2) plaintiff's fraud warrants a dismissal; and (3) the request for 

entry of default was entered before the filing of the complaint. We reject these 

arguments and affirm substantially for the reasons expressed by the motion 

judge in her written statement of reasons. We add the following comments. 

Motions made under any subsection of Rule 4:50-1 must be filed within a 

reasonable time. R. 4:50-2; see Deutsche Bank Tr. Co. v. Angeles, 428 N.J. 

Super. 315, 319 (App. Div. 2012). Despite receiving notice of each stage of the 

ongoing foreclosure action and sheriff's sale, Thorpe first raised her procedural 

objections more than ten eleven months after the entry of judgment and almost 

seven months after the sheriff's sale. She offered no explanation for the delay. 

Her motion was not filed within a reasonable time. 

Thorpe's motion also lacked substantive merit. "The only material issues 

in a foreclosure proceeding are the validity of the mortgage, the amount of the 

indebtedness, and the right of the mortgagee to resort to the mortgaged 

premises." Inv'rs Bank v. Torres, 457 N.J. Super. 53, 65 (App. Div. 2018) 

(quoting Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), 

aff'd o.b., 273 N.J. Super. 542 (App. Div. 1994)). Notably, Thorpe does not 
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attack the validity of the mortgage, the payment default, the amount of the 

indebtedness, or plaintiff's right to foreclose. She does not "contest the validity 

or priority of the mortgage or lien being foreclosed or create an issue with 

respect to plaintiff's right to foreclose it," or otherwise contest the allegations 

set forth in the complaint. R. 4:64-1(c)(2). 

Relief from judgment under Rule 4:50-1 "is not to be granted lightly." 

Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003). Moreover, "the 

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, cmt. on R. 4:43-3 (2019). That is so because 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." U.S. Bank Nat'l Ass'n v. 

Guillaume, 209 N.J. 449, 469 (2012) (quoting Schulwitz v. Shuster, 27 N.J. 

Super. 554, 561 (App. Div. 1953)). Thorpe has not met her burden of 

demonstrating a meritorious defense. See id. at 467.

An appellate court reviews a trial court's order denying a Rule 4:50-1 

motion for relief under an abuse of discretion standard. Ibid. "The trial court's 

determination under the rule warrants substantial deference, and should not be 

reversed unless it results in a clear abuse of discretion." Ibid. An abuse of 
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discretion occurs "when a decision is 'made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis.'" Id. at 467-68 (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 

123 (2007)). We discern no abuse of discretion. 

The motion judge properly corrected the clerical error in the order entering 

default. The error is obvious given the date plaintiff moved for entry of default 

and the date the order was uploaded into eCourts. Rule 1:13-1 permits a court 

to correct clerical errors in orders at any time "on its own initiative." 

The motion judge also properly determined there was no factual or legal 

basis to vacate the sheriff's sale because the motion to vacate the order entering 

default and the judgment of foreclosure lacked merit. 

Thorpe's argument that the judgment should be set aside for fraud upon 

the court pursuant to Rule 4:50-3 lacks sufficient merit to warrant discussion in 

a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.