SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4907-18

PHH MORTGAGE 

CORPORATION,

Plaintiff-Respondent,

v.

YVETTE LABOSSIERE,

MR. LABOSSIERE, husband 

of YVETTE LABOSSIERE,

Defendants-Appellants.

________________________

Argued March 1, 2021 – Decided March 18, 2021

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Camden County, Docket No. 

F-013704-12.

Yvette Labossiere, appellant pro se.1

1

 Defendant was notified that oral argument was scheduled to commence at 

10:15 a.m. The court and counsel waited until 10:37 a.m. but defendant did not 

appear. Staff attempted to contact defendant by phone and email, 

unsuccessfully. 

NOT FOR PUBLICATION WITHOUT THE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.
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Michael Eskenazi argued the cause for respondent 

(Friedman Vartolo, LLP, attorneys; Michael Eskenazi, 

on the brief).

PER CURIAM 

Defendant appeals from June 6, 2019 order denying her motion to vacate 

an order providing that PHH Mortgage Corporation (PHH) had standing to 

maintain its foreclosure action and reinstating a June 19, 2017 final judgment of 

foreclosure (Second Final Judgment of Foreclosure). She also appeals from the 

Second Final Judgment of Foreclosure and a November 12, 2014 order 

suppressing her answer with prejudice. We have carefully considered 

defendant's contentions and affirm. 

On November 17, 2007, defendant obtained a mortgage loan from PHH 

and in return executed a security agreement to Mortgage Electronic Registration 

Systems, Inc. (MERS), as nominee for PHH. On November 27, 2009, defendant 

and PHH entered into a loan modification agreement, which provided "[i]f 

applicable, [defendant's] total mortgage payment may change due to changes in 

[defendant's] escrow account." On June 7, 2010, PHH learned that defendant 

had failed to pay property taxes and that the property would go to a tax sale by 

the end of the month. PHH paid the overdue property taxes, exercised its 

contractual right to escrow the loan, and in January 2011, notified defendant that 
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her loan would be escrowed, and her monthly payments would increase 

beginning in March 2011.

Thereafter, defendant defaulted on her mortgage. On July 19, 2012, PHH 

initiated the underlying foreclosure action. Defendant defaulted by failing to 

respond to the complaint, which resulted in a default judgment. On April 30, 

2013, Judge Paul Innes issued a final judgment of foreclosure (First Final 

Judgment of Foreclosure) and permitted the sheriff's sale to proceed. In 

September 2013, defendant filed a motion to vacate the entry of default 

judgment and First Final Judgment of Foreclosure. On September 6, 2013,

Judge Mary Eva Colalillo stayed the sheriff's sale, and on October 25, 2013,

vacated the default judgment and permitted defendant to file an answer to 

plaintiff's complaint.

On October 1 and November 6, 2014, Judge Nan S. Famular presided over 

the foreclosure trial. On November 13, 2014, Judge Famular suppressed 

defendant's answer and defenses with prejudice and returned the matter to the 

Office of Foreclosure. Defendant filed a motion to vacate the order, which Judge 

Famular denied on January 9, 2015. On June 19, 2017, Judge Innes issued the 

Second Final Judgment of Foreclosure and permitted the sheriff's sale to

proceed. Defendant filed a motion to vacate the Second Final Judgment of 
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Foreclosure, which Judge Famular denied on October 17, 2017. Effective 

December 21, 2017, PHH transferred its interest in the mortgaged property to 

Selene Finance, LP (Selene) who collected payments on behalf of BlueWater 

Investment Holdings, LLC. (BlueWater).

In January 2018, defendant filed a second motion to vacate the Second 

Final Judgement of Foreclosure. The next month she filed for bankruptcy. On 

September 10, 2018, following the lifting of the bankruptcy stay, Judge Famular 

again entered an order denying the second motion to vacate the Second Final 

Judgment of Foreclosure. Defendant then filed a motion to stay the sheriff's 

sale, which Judge Famular denied on September 12, 2018. The following 

March, defendant moved to stay the sheriff's sale and vacate the Second Final 

Judgment of Foreclosure. On March 12, 2019, Judge Famular denied the motion 

to stay the sheriff's sale, but scheduled oral argument on whether to vacate the 

Second Final Judgment of Foreclosure.

Judge Famular conducted oral argument on April 26, 2019. Then-attorney 

for defendant argued that the Final Order of Foreclosure should be vacated 

because "new evidence presented to the bankruptcy court" showed that PHH had 

repeatedly transferred its interest in the mortgage. Judge Famular requested that 

both parties file supplemental briefs addressing whether PHH retained standing 
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to foreclose the mortgage despite transferring its interest after instituting the 

foreclosure action. On June 6, 2019, after reviewing the parties' submissions, 

Judge Famular concluded that PHH retained standing to foreclose, denied 

defendant's motion to vacate the Second Final Judgment of Foreclosure, 

reinstated the Second Final Judgment of Foreclosure, and returned the file to the 

Office of Foreclosure. 

On July 12, 2019, defendant filed a notice of appeal of the June 6, 2019

order. The following February, defendant filed an amended notice of appeal 

adding the Second Final Judgment of Foreclosure and the November 13, 2014 

order dismissing her answers and claims with prejudice.

On appeal, defendant raises the following arguments for this court's 

consideration:

POINT I

THE TRIAL [JUDGE] ERRED BY RULING IN 

PLAINTIFF'S FAVOR DESPITE DEFENDANT'S 

EVIDENCE OF NO DEFAULT UNDER THE 

SUBJECT MODIFICATION AGREEMENT, NOTE 

AND MORTGAGE AND PLAINTIFF'S 

UNCONSCIONABLE PRACTICES TO FALSIFY A

DEFAULT.

POINT II

THE TRIAL [JUDGE] ERRED UPON FAILING TO 

REMAIN NEUTRAL BY CREATING AN 
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EXPLANATION FOR PLAINTIFF AND ITS 

WITNESSES WHO WERE UNABLE TO EXPLAIN, 

JUSTIFY AND PROVE THE DEFAULT AND 

AMOUNTS DECLARED DUE AND OWING UNDER 

THE SUBJECT MODIFICATION AGREEMENT, 

NOTE AND MORTGAGE.

POINT III

THE TRIAL [JUDGE] ERRED UPON DECLARING 

THAT PLAINTIFF'S CLAIMS OF AGENCY WITH 

[MERS] AS ITS ALLEGED "NOMINEE" WERE NOT 

RELEVANT DESPITE EXISTING LAWS OF 

AGENCY AND PLAINTIFF'S ASSERTIONS MADE 

TO CLAIM STANDING BELOW.

POINT IV

THE TRIAL [JUDGE] ERRED BY ALLOWING AN 

INSTRUMENT PRESENTED AS AN 

"ASSIGNMENT" OF THE SUBJECT MORTGAGE 

TO BE PRESENTED AT TRIAL THAT WAS 

CREATED BY PHELAN HALLINAN SCHMIEG, 

P.C. / PHELAN HALLINAN DIAMOND & JONES, 

P.C., DISPLAYS THE NAME AND SIGNATURES 

OF THE FIRM'S ATTORNEY AS AN OFFICER OF 

THE ALLEGED ASSIGNOR BEFORE A NOTARY 

PUBLIC ALSO EMPLOYED BY THE FIRM(S), AND 

CONSTITUTES (AT BEST) A CONFLICT OF 

INTEREST.

POINT V

THE TRIAL [JUDGE] ERRED BY ALLOWING 

PLAINTIFF TO PROCEED WITH [THE] 

SHERIFF['S] SALE TO PRESENT DATE MORE 

THAN TWO YEARS AFTER PLAINTIFF 

RECEIVED CONSIDERATION FOR THE SUBJECT 
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NOTE AND MORTGAGE FROM A THIRD-PARTY, 

AND PLAINTIFF ABSOLVED ITSELF OF ANY 

INTEREST IN THE SUBJECT MODIFICATION 

AGREEMENT, NOTE, MORTGAGE, AND 

PROPERTY.

POINT VI

THE TRIAL [JUDGE] ERRED BY IGNORING 

PLAINTIFF'S COMMUNICATION MADE 

PURSUANT TO FEDERAL LAW, NOTIFYING 

DEFENDANT OF PLAINTIFF BECOMING THE 

"NEW OWNER" OF THE SUBJECT NOTE AND 

MORTGAGE AFTER THE MATTER BELOW WAS 

COMMENCED.

In her reply, defendant raises the following additional arguments, which 

we have renumbered:

[POINT VII]

CONTRARY TO PLAINTIFF'S . . . REPEATED 

CLAIM, THE DEFAULT ALLEGED WITHIN THE 

UNDERLYING FORECLOSURE COMPLAINT AND 

SUBJECT OF FINAL JUDGMENT IS FALSE, 

FABRICATED, UNPROVEN AND 

CONTRADICTORY.

[POINT VIII]

FALSE, UNSUBSTANTIATED AND 

CONTRADICTORY AFFIDAVIT OF AMOUNT DUE 

IN SUPPORT OF FINAL JUDGMENT.
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[POINT IX]

THE SCALES OF EQUITY FAVOR DEFENDANT'S 

. . . APPEAL IN RETROSPECT OF THE NEW 

JERSEY CONSENT JUDGMENT ENTERED 

AGAINST PLAINTIFF . . . AND THE LATTER'S 

CONTINUED ENGAGEMENT IN UNFAIR, 

DECEPTIVE AND UNLAWFUL SERVICING AND 

FORECLOSURE PRACTICES BELOW AND 

FAILURE TO REMEDIATE.

[POINT X]

A MISCARRIAGE OF JUSTICE WILL OCCUR 

ABSENT RELIEF TO DEFENDANT[.]

Defendant has not established a basis for vacation of the June 6, 2019 order, and 

her arguments pertaining to the Second Final Judgment of Foreclosure and 

November 12, 2014 order are untimely under Rule 2:4-1(a) and unpersuasive on 

the merits.

I.

We first address defendant's contention that the motion judge erred in 

denying the motion to vacate the Second Final Judgment of Foreclosure.

Where a party seeks to vacate a final judgment or order, they must meet 

the standard of Rule 4:50-1:

On motion, with briefs, and upon such terms as are just, 

the [judge] may relieve a party or the party's legal 

representative from a final judgment or order for the 

following reasons: (a) mistake, inadvertence, surprise, 
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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[ule] 4:49; (c) 

fraud . . . , 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.

A trial judge's determination on a motion to vacate a final judgment "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). 

An abuse of discretion is a decision "made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis." Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). 

Rule 4:50-1(a) permits vacation of a final judgment as a result of "mistake, 

inadvertence, surprise, or inexcusable neglect." Our Court has recognized that 

these words were meant to "encompass situations in which a party, through no 

fault of its own, has engaged in erroneous conduct or reached a mistaken 

judgment on a material point at issue in the litigation." DEG, LLC v. Twp. of 

Fairfield, 198 N.J. 242, 262 (2009). That conduct must be the type of "litigation 
10 A-4907-18

errors that a party could not have protected against." Id. at 263 (citation and 

internal quotation marks omitted).

Rule 4:50-1(b) permits vacation of a final judgment where a party 

demonstrates "that the evidence would probably have changed the result, that it 

was unobtainable by the exercise of due diligence for use at the trial, and that 

the evidence was not merely cumulative." Id. at 264 (quoting Quick Chek Food 

Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980)). All three of these 

requirements must be met to justify vacatur. Ibid. "'[N]ewly discovered 

evidence' does not include an attempt to remedy a belated realization of the 

inaccuracy of an adversary's proofs." Ibid. (quoting at Posta v. Chung-Loy, 306 

N.J. Super. 182, 206 (App. Div. 1997)).

A.

Defendant argues that the Second Final Judgment of Foreclosure should 

be vacated because of defendant's failure to include evidence at trial due to 

innocent mistake, R. 4:50-1(a), and "new evidence presented to the bankruptcy 

court," R. 4:50-1(b), which defendant contends demonstrates plaintiff does not 

have standing to foreclose on the subject property. Defendant asserts that 

because the mortgage was assigned multiple times prior to the commencement 

of the foreclosure, and because plaintiff transferred the mortgage to BlueWater 
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after plaintiff commenced the foreclosure action, PHH does not have standing 

to maintain the foreclosure action.

"Standing is not a jurisdictional issue in New Jersey." Capital One, N.A. 

v. Peck, 455 N.J. Super. 254, 259 (App. Div. 2018) (citing Deutsch Bank Nat'l 

Tr. Co. v. Russo, 429 N.J. Super. 91, 101 (App Div. 2012)). Instead, standing 

"is an element of justiciability" that "affects whether a matter is appropriate for 

judicial review rather than whether the court has the power to review the matter." 

Russo, 429 N.J. Super at 102 (quoting New Jersey Citizens Action v. Riviera 

Motel Corp., 296 N.J. Super. 402, 411 (App. Div. 1997)). To have standing, "a 

party must have 'a sufficient stake and real adverseness with respect to the 

subject matter of the litigation.'" Triffin v. Somerset Valley Bank, 343 N.J. 

Super. 73, 81 (App. Div. 2001) (quoting In re Adoption of Baby T., 160 N.J. 

332, 340 (1999)). Additionally, "[a] sufficient likelihood of some harm visited 

upon the plaintiff in the event of an unfavorable decision is needed[.]" Ibid. 

"Standing has been broadly construed in New Jersey as '[the] courts have 

considered the threshold for standing to be fairly low.'" Ibid. (quoting Reaves 

v. Egg Harbor Twp., 277 N.J. Super. 360, 366 (App. Div. 1994)).

To have standing in a foreclosure action, "a party seeking to foreclose a 

mortgage must own or control the underlying debt." Wells Fargo Bank, N.A. v. 
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Ford, 418 N.J. Super. 592, 597 (App. Div. 2011) (quoting Bank of N.Y. v. 

Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010)). If a party does not 

have ownership or control of the underlying debt, the complaint must be 

dismissed. Ibid. However, "possession of the note or an assignment of the 

mortgage that predated the original complaint confer[s] standing." Deutsche 

Bank Tr. Co. Americas v. Angeles, 428 N.J. Super 315, 218 (App. Div. 2012) 

(citing Deutsche Bank Nat. Tr. Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. 

Div. 2011)). 

Defendant has not established under Rule 4:50-1(a) any facts or 

circumstances that would warrant vacating the Second Final Judgment of 

Foreclosure. Nor has defendant established under Rule 4:50-1(b) that new 

evidence which was unobtainable through due diligence would have changed 

the outcome of the trial. MERS, as nominee for PHH, recorded the mortgage 

on December 5, 2007, and conveyed its beneficial interest in the mortgage to 

defendant on March 3, 2009. Plaintiff later commenced this action in July 2012. 

Plaintiff controlled the mortgage on the date of the filing of the complaint and 

therefore had standing to maintain the foreclosure action. PHH's transfer of its 

interest to Selene is of no moment, and PHH retains standing to maintain the 

foreclosure action. And even if it were the case that plaintiff did not have 
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standing, the judgment would still not be void under Rule 4:50-1(d). See Russo, 

429 N.J. Super. at 101 (noting that "a foreclosure judgment obtained by a party 

that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)").

B.

Defendant additionally argues that the sheriff's sale cannot proceed 

because she submitted a loss mitigation application to Selene in September 

2018, but Selene has not issued a decision. While not directly addressed, this 

argument appears to be based on provisions of the Real Estate Settlement 

Procedures Act (RESPA) and its accompanying regulations. Defendant does not 

point to a particular subsection of Rule 4:50-1 as the basis for vacation as to the 

loss mitigation application, so we will address each basis. See F.B. v. A.L.G, 

176 N.J. 201, 208 (2003).

RESPA was enacted to protect borrowers from "certain abusive practices 

that have developed in some areas of the country." 12 U.S.C. § 2601(a). 

Congress authorized the Consumer Financial Protection Bureau (CFPB) to 

promulgate rules and regulations in furtherance of RESPA's goals. 12 U.S.C. § 

2617(a). Pertinent to this appeal, 12 C.F.R. § 1024.41(g) provides:

[i]f a borrower submits a complete loss mitigation 

application after a servicer has made the first notice or 

filing required by applicable law for any judicial or 

non-judicial foreclosure process but more than [thirty-
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seven] days before a foreclosure sale, a servicer shall 

not . . . conduct a foreclosure sale, unless:

(1) The servicer has sent the borrower a 

notice pursuant to paragraph (c)(1)(ii) of 

this section that the borrower is not eligible 

for any loss mitigation option and the 

appeal process in paragraph (h) of this 

section is not applicable, the borrower has 

not requested an appeal within the 

applicable time period for requesting an 

appeal, or the borrower's appeal has been 

denied;

(2) The borrower rejects all loss mitigation 

options offered by the servicer; or

(3) The borrower fails to perform under an 

agreement on a loss mitigation option.

Although borrowers have a private right of action to enforce the procedural 

requirements set forth 12 C.F.R. § 1024.41, RESPA authorizes only monetary 

damages for any violations. 12 U.S.C. § 2605(f)(1)(A). 

Defendant states that she completed and submitted a loss mitigation 

application to Selene on September 7, 2018, but Selene has yet to respond to the 

application. Defendant submits a confirmation email purporting to show that 

she submitted the loss mitigation application, but it is unclear what documents 

were provided; the confirmation page states that sixteen pages were delivered, 

but only provides eleven pages of documents as part of the exhibit. Even if it 
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were the case that defendant submitted a complete loss mitigation application to 

Selene within the regulatory timeframe and Selene failed to respond, or if 

defendant submitted an incomplete loss mitigation application and Selene failed 

to notify defendant of additional documents needed to make the application 

complete, 12 C.F.R. § 1024.41(b)(2)(i)(B), defendant's relief would be monetary 

damages and not equitable relief, as defendant now seeks. 

Defendant failed to establish that the motion judge abused her discretion 

in denying the motion to vacate the Second Final Judgment of Foreclosure. 

Whether or not defendant filed a loss mitigation application, defendant has not 

demonstrated "mistake, inadvertence, surprise, or inexcusable neglect" which 

would warrant vacation under Rule 4:50-1(a). There is no new evidence that 

would have altered the outcome because defendant's property would still be 

foreclosed and if Selene improperly failed to respond to defendant's loss 

mitigation application, defendant would only be entitled to monetary damages 

and not a stay of the sheriff's sale. Defendant does not allege that the PHH or 

Selene made false representations to induce defendant's reliance. The Second 

Final Judgement of Foreclosure is not void, nor has there been a change in 

circumstances after the entry of the Final Judgment of Foreclosure that would 

result in an extreme or unexpected hardship for defendant.
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II.

Defendant asserts numerous arguments on appeal relating to her 

mortgage, the validity of the default, and the institution of the escrow account 

because of the alleged failure to pay property taxes, which fall outside the issues 

addressed in the June 6, 2019 order. Defendant is procedurally barred from 

raising such arguments.

"An appeal from a final judgment must be filed with the Appellate 

Division within forty-five days of its entry[.]" Lombardi v. Masso, 207 N.J. 

517, 540 (2011) (citing Rule 2:4-1(a)). Where an appeal is filed beyond the time 

limit, "the court normally lacks jurisdiction over the matter and it must be 

dismissed." In re Christie's Appointment of Perez as Public Member 7 of 

Rutgers Univ. Bd. of Governors, 436 N.J. Super. 575, 584 (App. Div. 2014). 

However, even in circumstances where appeals have not been timely filed, our 

courts may decide issues presented which touch upon "issues of genuine public 

importance[.]" Id. at 585. 

Defendant appealed the June 6, 2019 order on July 12, 2019, which is 

within the forty-five days required by Rule 2:4-1(a). That order provided that 

PHH did have standing, reinstated the Second Final Judgment of Foreclosure 

against defendant, and transferred the file back to the Office of Foreclosure. On 
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February 2, 2020, defendant filed an amended notice of appeal and case 

information statement which added that she was appealing the Second Final 

Judgment of Foreclosure and the November 13, 2014 order, as well as the June

6, 2019 order. Both the Second Final Judgment of Foreclosure and the 

November 13, 2014 order are well beyond the forty-five-day time limit, and 

there is nothing to suggest that the issues raised are "of genuine public 

importance[.]" In re Christie, 436 N.J. Super. at 585; see Jacobs v. N.J. State 

Highway Auth, 54 N.J. 393, 396 (1969) (addressing compulsory retirement 

policy of the State Highway Authority because of "the importance of the public 

question involved"); In re Rodriguez, 423 N.J. Super. 440, 447-48 (App. Div. 

2011) (addressing "allegations of correctional officers' use of excessive force" 

despite being time-barred because it was "a matter of public importance and 

interest"). 

As a result, this court does not have jurisdiction to address the specific 

arguments raised pertaining to the Second Final Judgment of Foreclosure and 

the November 13, 2014 order dismissing defendant's answer and claims with 

prejudice, nor do they present a basis for vacating the June 6, 2019 order. We 

nevertheless add the following remarks on the merits of defendant's contentions.
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Defendant asserts that MERS was unable to assign the mortgage to PHH 

because it was not an agent of PHH, and that MERS could not be an agent 

without a power of attorney. This court has recognized in previous 

circumstances that MERS's role as a nominee creates an agency relationship. 

See Raftogianis, 418 N.J. Super. 347 (noting that MERS, as nominee, "does not 

have any real interest in the underlying debt, or the mortgage which secured that 

debt. It acts simply an agent or 'straw man' for the lender"). A power of attorney 

is not necessary in this case.

Defendant asserts that the trial judge overlooked the December 4, 2013 

Consent Order between New Jersey and PHH. However, there is no evidence in 

the record to suggest that defendant fell within any of the borrower categories 

provided for in the Consent Order which would entitle her with relief. And even 

if it were the case that defendant was identified as one of the borrowers that fell 

within the categories proscribed by the Consent Order, the Consent Order only 

provides that those borrowers would receive restitution payment, not that 

defendant would have been shielded from her default or that the sheriff's sale 

would have been stayed.

Affirmed.