SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0735-17T3

EVERBANK,

Plaintiff-Respondent,

v.

AIDA C. BASCOPE,

Defendant,

and

JOSE B. BASCOPE,

Defendant-Appellant.

____________________________

Submitted June 5, 2018 – Decided

Before Judges Hoffman and Gilson.

On appeal from Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. 

F-003087-14.

Jose B. Bascope, appellant pro se.

McCabe Weisberg & Conway, LLC, attorneys for 

respondent (James A. French, of counsel and 

on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

June 29, 2018
2 A-0735-17T3

In this residential mortgage foreclosure matter, defendant 

Jose Bascope appeals from a September 29, 2017 order denying his 

motion to vacate a final judgment entered on June 10, 2016. We 

affirm. 

I.

On March 15, 2006, defendant borrowed $304,000 from 

Countrywide Home Loans, Inc. (Countrywide). In connection with 

that loan, defendant signed a note (Note) and he and his wife gave 

a mortgage (Mortgage) on property located in Garfield. The Note 

was given to Countrywide, and the Mortgage was delivered to 

Mortgage Electronic Registration Systems, Inc. (MERS), as nominee 

for Countrywide. On May 1, 2009, MERS assigned the Mortgage to 

BAC Home Loans Servicing, L.P. (BAC). Three years later, on July 

19, 2013, Bank of America, N.A., as successor by merger to BAC, 

assigned the Mortgage to EverBank. Both of those assignments were 

recorded.

In May 2013, defendant failed to make the monthly mortgage 

payment and, thereafter, he defaulted on the Note and Mortgage. 

Defendant has not cured those defaults.

In January 2014, EverBank filed a complaint seeking to 

foreclose on the Mortgage. In its complaint, EverBank represented 

that it was the holder of the Mortgage and it had "possession of 
3 A-0735-17T3

the promissory note." Defendants1 filed a contesting answer, but 

in October 2014, defendants withdrew their answer, and the Chancery 

court entered an order returning the matter to the Office of 

Foreclosure to proceed as an uncontested matter. 

In May 2016, EverBank moved to enter a final judgment. In 

support of that motion, an employee of the loan servicer for 

EverBank filed an affidavit. The affiant certified that she was 

authorized to file the affidavit as "attorney-in-fact for 

EverBank," that she had "thoroughly reviewed" the business records 

concerning the Note and Mortgage, and that EverBank was the holder 

of the Note and Mortgage with the right to enforce those 

obligations. Final judgment was entered on June 10, 2016. The 

mortgaged property was then sold in a sheriff's sale in June 2017.

In August 2017, defendant filed a motion to vacate the final 

judgment. Defendant alleged that EverBank lacked standing to 

foreclose and that the affidavit submitted in support of the final 

judgment was insufficient. The Chancery court heard oral arguments

and, on September 29, 2017, it issued an order and written opinion 

denying the motion to vacate.

 

1 Defendant refers to Jose Bascope. Defendants refers to Jose and 

Aida Bascope. Only Jose Bascope has appealed.
4 A-0735-17T3

II.

On appeal, defendant makes two arguments: (1) the Chancery 

court abused its discretion in not vacating the final judgment 

because EverBank did not establish its standing to file the 

foreclosure action; and (2) the affidavit filed in support of the 

final judgment did not establish that EverBank owned the Note 

before final judgment was entered. We reject these arguments 

because they are not supported by the record.

To vacate a judgment, defendant must establish one of the six 

grounds identified in Rule 4:50-1. See US Bank Nat'l Ass'n v. 

Guillaume, 209 N.J. 449, 466 (2012). Here, defendant relies on 

subsections (d) and (f) of Rule 4:50-1. Those subsections provide 

that a party may vacate a judgment if he or she can establish: 

"(d) the judgment or order is void; . . . or (f) any other reason 

justifying relief from the operation of the judgment or order." 

R. 4:50-1(d), (f).

We review the Chancery court's order on a motion to vacate a 

final judgment for abuse of discretion. Guillaume, 209 N.J. at 

467. "A trial court's determination under [Rule 4:50-1] warrants

substantial deference," and the abuse of discretion must be clear 

to warrant a reversal. Ibid. (citing DEG, LLC v. Twp. of 

Fairfield, 198 N.J. 242, 261 (2009)).
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While phrased as two arguments, defendant essentially makes 

a standing argument, contending that EverBank did not establish 

that it owned or held the Note and Mortgage before it filed its 

foreclosure action in January 2014. More specifically, defendant 

argues that the affidavit EverBank filed was insufficient to 

establish its right to enforce the Mortgage.

Initially, we note that such an argument is not a basis to 

vacate a final judgment. Defendant has not submitted any proof 

that EverBank did not hold or own the Mortgage and Note when it

filed its foreclosure action. Instead, defendant contends that 

the affidavit by EverBank was deficient. The distinction is 

important. Defendant's arguments challenge EverBank's proofs. 

That proof argument needed to be made before the matter was 

transferred to the Office of Foreclosure as uncontested and final 

judgment was entered. See Deutsche Bank Nat'l Trust Co. v. Russo, 

429 N.J. Super. 91, 101 (App. Div. 2012) (rejecting technical 

objections to a foreclosure complaint as grounds to vacate final 

judgment).

In addition, defendant has not established that the affidavit 

by EverBank was insufficient. The affiant certified that she had 

reviewed the relevant books and records and that EverBank was the 

holder of both the Note and Mortgage. While we encourage trial 

courts to be vigilant in assessing the proof submitted in support 
6 A-0735-17T3

of foreclosure actions, here we discern no abuse of discretion by 

the Chancery court. When EverBank moved for entry of the final 

judgment, defendant did not offer any proof that EverBank did not 

own or hold both the Note and Mortgage. To the contrary, the 

affidavit submitted by EverBank was essentially uncontested. 

Consequently, we reject defendant's attempt to vacate the final 

judgment. 

The record establishes that EverBank is the party with the 

right to enforce the Note and Mortgage. The record also 

establishes that defendant defaulted on his obligations under the 

Note and Mortgage in 2013, and has not made any payments since 

that time. The property was sold in June 2017, and there has been 

no showing that any other party has claimed a right under the Note 

or Mortgage. Indeed, plaintiff waited over a year after the final 

judgment was entered and after the sale of the mortgaged property,

to file his motion to vacate the final judgment. Thus, the 

equitable considerations presented in this matter supported entry 

of the final judgment in favor of plaintiff. See Deutsche Bank 

Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012)

("In foreclosure matters, equity must be applied to plaintiffs as 

well as defendants.").

Affirmed.