SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1860-15T4

GMAC MORTGAGE, LLC,

Plaintiff-Respondent,

v.

JESSICA L. PERYEA and MR.

PERYEA, husband of JESSICA

L. PERYEA, 

Defendants,

and

NICK and JOSEPHINE NISEVIC,

 

Defendants/IntervenersAppellants.

_______________________________________

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-036302-08.

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NOT FOR PUBLICATION WITHOUT THE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." 

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.

November 17, 2017
2 A-1860-15T4

Clark L. Cornwell, III, attorney for 

respondent GMAC Mortgage, LLC.

PER CURIAM

In this mortgage foreclosure action, third-party interveners,

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 sale in 2009. We affirm.

The record discloses that on January 11, 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 property 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 15, 

2008, MERS assigned the mortgage to plaintiff, which possessed the 

note.
3 A-1860-15T4

Peryea defaulted on the mortgage on June 1, 2008. Plaintiff 

filed a foreclosure complaint against Peryea on September 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 on 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 on 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. The Nisevics 

subsequent application to vacate the December 12, 2013 ejectment 

order was denied.

Thereafter, pursuant to Rule 4:50-1, the Nisevics moved to 

vacate the final judgment of foreclosure 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 Rivertown would provide financing 

to homeowners in distress by having the 

homeowners sign a deed over to Rivertown and 
4 A-1860-15T4

then allegedly lease the homes back. 

Rivertown would place a mortgage on the 

premises. Again according to the [Nisevics], 

at this point the homeowners "felt they simply 

had 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 straw

buyers to apply for mortgages on the property. 

The straw buyers would sign documents to 

become members of Rivertown holding companies 

that received 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 Peryea, a straw buyer. The deed 

that vested title to Friedman was recorded on 

March 4, 2008. The deed that vested interest 

to Peryea was recorded on June 10, 2008. 

Peryea took out four mortgages on the property 

and allegedly paid nothing towards them.

The mortgage owned by [p]laintiff was 

originally owned by Mercury, Inc. ("Mercury"). 

On January 15, 2008, Peryea executed a note 

in favor of Mercury for $378,400. Peryea

executed a mortgage for the same amount in 

favor of Mortgage Electronic Registration 

Systems, Inc. as nominee for Mercury ("MERS"). 

On September 15, 2008, Mercury assigned the 

mortgage to GMAC. The [Nisevics] claim that

upon learning of the fraudulent scheme, the 

companies that owned the other three mortgages 

withdrew any claim to the property. The 

[Nisevics] contend that Mercury failed to 

notice the fraudulent scheme in its title 

search.

The [Nisevics] also contend that their 

former attorney, Louis A. Capazzi, Jr., Esq., 
5 A-1860-15T4

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 Police 

Department. The [Nisevics] claim that Mr. 

Capazzi took over $100,000 from them, received

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 ejectment in 

favor of [p]laintiff. Mr. Capazzi advised the 

[Nisevics] to ignore all notices that they 

received, including the Notice of Ejectment, 

and that they should not come to court. The 

[Nisevics] are currently filing a malpractice 

claim against Mr. Capazzi.

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 they 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." According to 

the judge, "[s]uch general assertions . . . must be reinforced by 

evidence; without support, the prejudicial impact of unavailable 

evidence, lost witnesses, and other such issues resulting from the 
6 A-1860-15T4

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 4:50-

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[,]" rendering 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, the 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 failure 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-1860-15T4

[The Nisevics'] pleadings of a fraudulent 

mortgage appear to be mistaken. [The 

Nisevics] may have been 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 payments 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 derived a benefit. 

Additionally, their 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 Peryea recorded on June 

10, 2008.

The judge 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]laintiff.

A memorializing order was entered and this appeal followed.
8 A-1860-15T4

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 arguments 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 

(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.]
9 A-1860-15T4

Generally, a party seeking 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 clear 

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-1860-15T4

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

554, 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, we discern no abuse of 

discretion.

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); 

see also L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 

434 N.J. Super. 60, 87 (App. 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 those

arguments. 

Affirmed.