SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3648-16T3

DEUTSCHE BANK NATIONAL 

TRUST COMPANY, as Trustee 

of the Residential Asset Securitization 

Trust 2007-A5, Mortgage PassThrough Certificates, Series 2007-E

Under the Pooling and Servicing

Agreement Dated March 1, 2007,

Plaintiff-Respondent,

v.

SHAHID NAZIR,

Defendant-Appellant, 

and

NUZHAT NAZIR, his wife, each of 

their heirs, devisees, and personal

representatives, and his, her, their or

any of their successors in right, title

and interest; MID-LAND FUNDING 

LLC and DISCOVER BANK,

Defendants.

________________________________

Submitted October 15, 2018 – Decided

NOT FOR PUBLICATION WITHOUT THE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 20, 2018
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A-3648-16T3

Before Judges Haas and Mitterhoff.

On appeal from Superior Court of New Jersey, 

Chancery Division, Middlesex County, Docket No. F023745-13.

Shahid Nazir, appellant pro se.

Phelan Hallinan Diamond & Jones, LLP, attorneys for 

respondent (Brian J. Yoder, on the brief).

PER CURIAM

In this residential mortgage foreclosure action, defendant Shahid Nazir 

appeals from the trial court's denial of his motion to vacate a final judgment of 

foreclosure and sheriff's sale. We affirm.

In February 2007 defendant's wife executed a promissory note securing 

the sum of $553,000.00 to IndyMac Bank, F.S.B. On the same date, defendant 

and his wife executed a non-purchase-money mortgage to Mortgage Electronic 

Registration System, Inc., as nominee for IndyMac Bank. Mortgage Electronic 

Registration System assigned the mortgage to plaintiff Deutsche Bank National 

Trust Company in November 2010. Defendant defaulted on the loan starting in 

August 2010 and never cured the default. 

On July 9, 2013, plaintiff filed a foreclosure complaint. On August 16, 

2013, defendants filed a contesting answer. On September 24, 2013, Judge Ann 

G. McCormick entered a case management order scheduling trial for January 
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30, 2014. On January 28, 2014, plaintiff, through counsel, agreed to a consent 

order in which defendants agreed to deem their answer non-contesting in 

exchange for plaintiff agreeing to refrain from applying for final judgment for 

sixty days. The trial court entered the consent order on January 30, 2014. 

On September 5, 2014, plaintiff moved for default. On February 24, 2015, 

the trial court entered an order granting default. On March 16, 2015, plaintiff 

sent formal notice pursuant to Section 6 of the New Jersey Fair Foreclosure Act 

to defendants. On November 4, 2015, plaintiff filed a notice of motion for entry 

of final judgment. On January 5, 2016, the trial court entered a final judgment

of foreclosure.

After several postponements for loss mitigation discussions between the 

parties and defendant exercising statutory adjournments, a sheriff's sale was 

scheduled for September 14, 2016. On July 18, 2016 and August 16, 2016, 

defendant attempted to file pro se motions to stay the sheriff's sale, but the 

clerk's office marked the motions as "Received but not Filed" because defendant 

had not paid the proper filing fees or submitted a substitution of attorney signed 
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by the withdrawing attorney.1 On September 14, 2016, plaintiff purchased the 

property at the sheriff's sale. 

On September 22, 2016, defendant attempted to file a pro se motion to 

object to and set aside the sheriff's sale, but the clerk's office again did not file 

the motion because defendant had not submitted a substitution of attorney signed 

by the withdrawing attorney and paid the appropriate filing fee. On November 

14, 2017, defendant filed a substitution of attorney in order to proceed pro se. 

On March 1, 2017, defendant filed a motion to set aside the writ of possession, 

set aside the final judgment, and move forward with mediation.

On March 31, 2017, Judge McCormick held a hearing on defendant's 

motion and denied the motion in an oral decision. On appeal of this denial, 

defendant raises the following points for our review: 

Point 1 – Defendant was entitled to relief under R. 4.50-

1(f). 

Point 2 – The Trial Court erred and abused its discretion 

in allowing the settlement to withdraw [the] Contested

Answer with nothing in exchange for Defendant.

 

1

 "[A]n attorney may withdraw upon the client's consent provided a substitution 

of attorney is filed naming the substituted attorney or indicating that the client 

will appear pro se. If the client will appear pro se, the withdrawing attorney 

shall file a substitution." R. 1:11-2(a)(1). 
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Point 3 – The Trial Court erred and abused its discretion 

by not setting aside the sale, and direct[ing] the matter 

to mediation.

Having reviewed the record in light of the applicable legal principles, we affirm 

for substantially the same reasons expressed by Judge McCormick in her wellreasoned oral decision. We add only the following comments. 

In general, "[t]he trial court's determination under [Rule 4:50-1] warrants 

substantial deference, and should not be reversed unless it results in a clear abuse 

of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) 

(citations omitted). Further, relief under Rule 4:50-1(f) should be granted only 

when "truly exceptional circumstances are present." Id. at 484 (quoting Hous. 

Auth. of Town of Morristown v. Little, 135 N.J. 274, 286 (1994)). Likewise, a 

court should exercise its discretion to set aside a foreclosure sale only to correct 

a plain injustice. See First Tr. Nat'l Assoc. v. Merola, 319 N.J. Super. 44, 49 

(App. Div. 1999) (citation omitted) ("[T]he exercise of this power [to set aside 

a sheriff's sale] is discretionary and must be based on considerations of equity 

and justice."). 

 Additionally, "the showing of a meritorious defense is a traditional 

element necessary for setting aside . . . a default judgment." Pressler & 

Verniero, Current N.J. Court Rules, cmt. on R. 4:43-3 (2019); see also
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Guillaume, 209 N.J. at 469 (requiring meritorious defense to foreclosure for 

relief under Rule 4:50-1(a)). In this case, we find that defendant fails to present 

a meritorious defense to the foreclosure or exceptional circumstances warranting 

relief under Rule 4:50-1(f). Defendant does not contest his default on the 

mortgage, and defendant's arguments are otherwise unavailing. 

Defendant argues that he was denied access to the court because the clerk's

office did not file some of his submissions, but the clerk's office properly marked 

these submissions as "Received but not Filed" because defendant failed to pay 

the appropriate filing fees or to submit a proper substitution of attorney signed 

by the withdrawing attorney. See R. 1:5-6(c)(1)(A), (D). Defendant also argues 

that he was promised a loan modification in exchange for withdrawing his 

contested answer to the foreclosure complaint, but the terms of the consent order

do not provide for such a modification. "In general, settlement agreements will 

be honored absent a demonstration of fraud or other compelling circumstances." 

Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (internal quotations and citations 

omitted). In this case, defendant has presented no evidence of fraud or other 

compelling circumstances that warrant vacating the consent order. 

For these reasons, the trial court did not abuse its discretion in refusing to 

vacate the final judgment and sheriff's sale. The remaining arguments raised by 
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defendant are without sufficient merit to warrant discussion in a written opinion. 

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

Affirmed.