SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A

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GMAC MORTGAGE, LLC,

Plaintiff

- Respondent,

v.

JESSICA L . PERYEA and MR. PERYEA, husband of JESSICA L. PERYEA ,
Defendant s ,
and
NICK and JOSEPHINE NISEVIC,

Defendants /Interven e rs Appellants.

___________________________________ ____
Submitted September 6, 2017

– Decided
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County , Docket No. F

- 0 36302

- 08
. Ameri & Associates, LLC, attorneys for appellants (Nina Ameri, on the brief).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court
. " A lthough 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.

November 17, 20172 A

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- 15T4 Clark L. Cornwell, III , attorney for respondent G MAC Mortgage, LLC.

PER CURIAM

In this mortgage foreclosure action, third

- party interven e rs , Nick and Josephine Nisevic , appeal from the November
25, 2015 Chancery Division order denying their motion to vacate a 2009 final judgment of foreclosure in favor of plaintiff GMAC
Mortgage, LLC. The judgment was entered against defendant Jessica

Peryea on property formerly owned by the Nisevics
. The Nisevics
claim they were the real owners of the foreclosed

- upon property,

which was sold at a Sheriff's sa le in 2009
. We affirm.

The record discloses that on January 1 1 , 2007, the Nisevics
conveyed ownership of the property to Denton Friedman for
consideration in the amount of $480,000. On January 15, 2008,

Friedman , in turn, conveyed ownership of the prope rty to Peryea
for consideration in the amount of $473,000. On the same date,
Peryea executed a note in the amount of $378,400, secured by a
mortgage on the property in favor of Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for Mercury, Inc.
The mortgage was recorded on June 10, 2008. On September 1 5 , 2008, MERS assigned the mortgage to plaintiff , which possessed the

note.3 A

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Peryea defaulted on the mortgage on June 1, 2008. Plaintiff
filed a foreclosure complaint against Peryea on Septe mber 19 , 2008, and obtained a default judgment after Peryea failed to file

an answer. Final judgment was entered on June 23, 2009, and a

Sheriff's sale was conducted o n October 2, 2009. GMAC was the
successful bidder and assigned its bid to Federal Home Mortgage
Corporation (Federal)
. Federal then filed an application against
the Nisevics for possession of the property, and o n December 12,
2013, the trial court entered an order for ejectment
. The order

directed the Nisevics , who had continuously occupied the property,
to vacate the property by January 20, 2014. T he Nisevics
subsequent application to va cate the December 12, 2013 ejectment

order was denied.

Thereafter , pursuant to Rule 4:50

- 1, the Nisevics moved to

vacate the final judgment of fore closure entered against Peryea

and set aside the Sheriff's sale. Following oral argument , Judge

Menelaos Toskos denied the motion in a November 25, 2015 written
opinion
. The judge encapsulated the Nisevics' allegations thusly :

The crux of the [Nisevics '] allegations is that they were defrauded by a scheme called "Rivertown", featured on the television show American Greed. According to the [Nisevics], several of the perpetrators are presently serving prison sentences. The [Nisevics] claim that Rivertow n would provide financing to homeowners in dis tress by having the homeowner s sign a deed over to Rivertown and4 A

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- 15T4 then allegedly lease the home s back. Rivertown would pla ce a mortgage on the premises. Again according to the [Nisevics] , at this point the hom eowners " felt they simply ha d a mortgage [, " ] rather than having deeded the house away. The [Nisevics] allege that after payments were made to Rivertown, the home was to be transferred back to them. [ The Nisevics] claim Rivertown would use s traw b uyers to apply for mortgages on the property. The straw buyers w ould sign documents to become members of Rivertown holding companies that receive d titles to the properties " but never spent any money required under the deals. "
Here, the [Nisevics] allege that they executed a deed to Denton Friedman (" Friedman "), a Rivertown representative. Friedman then fraudulently transferred ownership to P eryea , a straw buyer. The deed that vested title to Friedman was recorded on March 4, 2008. The deed that vested inter est to P eryea was recorded on June 10, 2008. Peryea took out fo u r mortgages on the property and allegedly paid nothing towards them.
The mortgage owned by [ p ] laintiff was originally owned by Mercury , Inc. ("M ercury ") . On January 15, 2008, P eryea execute d a note in favor of M ercury for $378,400. P eryea executed a mortgage for the same amount in favor of M ortgage E lectronic R egistration S ystems, Inc. a s nominee for M ercury ("MERS") . On September 15, 2008, M ercury assigned the mortgage to GMAC. The [ Nisevics] claim that upon learning of the fraudulent scheme, the companies that own ed the other three mortgages withdrew any claim to the property. The [Nisevics] contend that M ercury failed to notice the fraudulent scheme in its title search.

The [Nisev ics] also contend that their former attorney, Louis A. Capazzi, Jr., Esq.,5 A

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- 15T4 committed malpractice and contributed to them losing their home. Allegedly, Mr. Capazzi is currently suspended and is the subject of an investigation by the Oradell P olice D epartme nt. The [Nisevics] claim that Mr. Capazzi took over $100,000 from them, receive d compensation from [ p ] laintiff and Rivertown for the fraudulent scheme, and failed to show up to court on numerous occasions. The court ultimate [ly] issued an order for eject ment in favor of [ p ] lainti ff
. Mr. Capazzi advise d the [Nisevics] to ignore all notices that they received, including the N otice of Ejectment , and that they should not come to court. The [Nisevics] are currently filing a malpractice claim against Mr. Capa zzi
. Initially, Judge Toskos found that the Nisevics did not move

to vacate the final judgment "within a reasonable time" as
prescribed by Rule 4:50

- 2 , because the "judgment [was] six years

old." According to the judge , the Nisevics provided no explanation
for the lengthy delay but offered only "general assertions[.]"
Specifically, the Nisevics made "general assertions that they were
conned by their attorney at the time, but they provide [ d ] no

exhibits and no timeline as to when the y hired Mr. Capazzi, how
long he represented them, and the sequence of the events that led
them to wait this long to move to vacate judgment." A ccording to

the judge , "[ s ] uch general assertions . . . must be reinforced by
evidence; without support, the pr ejudicial impact of unavailable
evidence, lost witnesses, and other such issues resulting from the6 A

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six [

- ] year lapse outweighs any benefit that might be derived from
granting the [ Nisevics '] motion. "

Next, Judge Toskos evaluated the Nisevics arguments on the

merits to determine whether relief was justified under Rule 4: 5 0

-

1 , but determined that the Nisevics "failed to show any meritorious

defense." Rather, "[a]ll they do is point to their alleged
victimization by con men and lawyers." The judge rejected the

Nisevics' contention that service "only by publication
. . . was inadequate notice [,] " render ing the final judgment defective
. The
judge noted that the argument was predicated on the premise " that
they, and not Peryea, were the rightful owners of the property "

and therefore should have been " named or served in the foreclosure
complaint [ . ]" However, t he judge rejected the Nisevics' assertion
"that they were the true owners of the mortgaged premises[,]" in
light of their admission " that they deeded the property over to

Riverton [,] " and their fail ure to submit "copies of their mortgage

and lease

- back agreement" or any other document "to support their

assertion [.] "
Judge Toskos also rejected the Nisevics ' claim that the
mortgage was fraudulent, noting that "[ a ] fraudulent deed does not
affect the rights of a bona fide third [

- ] party purchaser. " The
judge explained further :7 A

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- 15T4 [The Nisevics ' ] pleadings of a fraudulent mortgage appear to be mistaken. [The Nisevics] may have b een improperly induced into deeding away the property at issue, but no mortgage was executed by [the Nisevics] in return for said deed. [The Nisevics] state that they "felt they simply had a mortgage" after they deeded their home over to Rivertown. This feeling, however, is not legally binding, and no such mortgage existed. Indeed, just the opposite is true, as the [Nisevics ' ] original mortgage was in fact paid off. Since that time, moreover, [the Nisevics] have lived without having to make mortgage pay ments or, it appears, tax payments on the property. Thus, although [the Nisevics] may have been duped out of the deed to the property, it bears mentioning that the [Nisevics] also derive d a benefit. Additionally , the ir argument that " Friedman never had possession to vest title to Peryea making the transfer fraudulent " is incorrect. The [Nisevics] likely confused the dates, as their own papers state that Friedman recorded on March 4, 2008 and P eryea recorded on June 10, 2008.

The judg e concluded:

This paucity of evidence is insufficient to convince the [ c ] ourt that equitable concerns justify vacating the judgment as requested. There is no indication given that , even if the judgment were vacated, [the Nisevics] would be able to pay the loan at this time. The lack of evidence presented to the court precludes granting the relief sought by [the Nisevics]
. [The Nisevics] have lived in the property rent

- free for nine years. They have clearly benefited by having the original loan paid off, and to vacate this judgment in their favor would clearly be prejudicial and inequitable to the [ p ] lainti ff
. A memorializing order was entered and this appeal followed.8 A

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On appeal, the Nisevics renew their argument that "the default
judgment should be set aside " because they " were not personally
served, but were served only by publication." They also reiterate

that "the bank . . . gave a mortgage on a property that the seller
did not own at the time according to the recording dates." We
reject these argu ments and affirm substantially for the reasons
set forth in Judge Toskos' cogent and well

- reasoned written
opinion. We add the following comments.

Under Rule 4:50

— 1 , the trial court may relieve a party from
a final judgment 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 (wh ether 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 whi ch 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.]9 A

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Genera lly, a party seekin g to reopen a default judgment must show

" that a meritorious defense is available." Hous. Auth. of

Morristown v. Little , 135 N.J. 274, 284 (1994).

Motions made under Rule 4:50

- 1 must be filed within a

reasonable time. R. 4:50

- 2; see also Deutsche Bank Trust Co. Ams.
v. Angeles , 428 N.J. Super. 315, 319 (App. Div. 2012). Motions

based on Rule 4:50

- 1(a), (b) , and (c) must be filed within a year
of the judgment. Angeles , supra , 428 N.J. Super. at 319. However,

the one

- year limitation for subsections (a), (b) , and (c) does not
mean that filing within one year automatically qualifies as "within

a reasonable time." Orner v. Liu , 419 N.J. Super. 431, 437 (App.
Div.), certif. denied , 208 N.J. 369 (2011); R. 4:50

- 2. "[T]he

one - year period represents only the outermost time limit for the
filing of a motion based on Rule 4:50

- 1(a), (b) [,] or (c). [All]

Rule 4:50 motions must be filed within a reasonable time, which,
in some circumstances, may be less than one year from entry of the
order in question." Orner , supra , 419 N.J. Super. at 437.

A motion for relief under Rule 4:50

- 1 should be granted
sparingly and is addressed to the sound discretion of the trial
court, whose determination will not be disturbed absent a cle ar

abuse of discretion. U.S. Bank Nat'l Ass'n v. Guillaume , 209 N.J.
449, 467 (2012). "[A]buse of discretion only arises on
demonstration of 'manifest error or injustice[,]'" Hisenaj v.10 A

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Kuehner , 194 N.J. 6, 20 (2008) (quoting State v. Torres , 183 N.J.

55 4, 572 (2005)), and occurs when the trial court's decision is

" made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis."

Guillaume , supra , 209 N.J. at 467
. Here, w e discern no abuse of

dis cretion.

The Nisevics raise additional arguments in their reply brief.

However, "raising an issue for the first time in a reply brief is
improper." Goldsmith v. Camden Cnty. Surrogate's Office , 408 N.J.
Super. 376, 387 (App. Div.) (quoting Borough of Berlin v. Remington
& Vernick Eng'rs , 337 N.J. Super. 590, 596 (App. Div.), certif.

denied , 168 N.J. 294 (2001)), certif. denied , 200 N.J. 502 (2009) ;

s ee also L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc. ,
434 N.J. Super. 60, 87 (Ap p. Div.), certif. denied , 218 N.J. 273
(2014). Similarly , it is improper for a party to use a reply
brief to enlarge an argument asserted in the merits brief. State

v. Smith , 55 N.J. 476, 488, cert. denied , 400 U.S. 949, 91 S. Ct.
232, 27 L. Ed. 2d 256 ( 1970)
. Thus, we decline to consider th ose
argument s .
Affirmed.