NJ Court Treated a Homeowner with Undue Harshness

An appellate court in New Jersey determined the lower court abused their discretion in this foreclosure case and was "unduly harsh" on the homeowner. See some excerts below .....

"The motion court focused primarily on the fifteen month lag between the filing of the complaint and the filing of the motion. It was unconvinced that an adequate explanation was provided for defendants' inaction, and was unforgiving in light of the passage of time. We view the court's analysis as unduly harsh, which resulted in an abuse of discretion.


"On the meritorious defense side of the ledger, we also disagree with the conclusions of the motion court. Much decisional law has developed — addressing both substantive and procedural issues — relating to mortgage foreclosures since the Chancery Division decided this matter. With the aid of such jurisprudential hindsight, we readily observe that it was improvident for the motion court to have authoritatively determined Sutton's status as a holder in due course without the benefit of discovery. Furthermore, the motion record does not provide standing-to-sue clarity vis-à-vis Sutton's ownership and possession of the note prior to the November 21, 2008 filing of the complaint. Lastly, we are struck by the unnerving imprecision and lack of personal knowledge as found in Orrison's certifications. We do not, of course, challenge the credibility of the certifications, but conclude that they suffer from the same type of deficiencies identified in Ford, supra, 418 N.J. Super. at 599-600 and Mitchell, supra, 422 N.J. Super. at 225-26.

In light of the clarification and amplification of the law, we conclude that defendants presented adequate evidence that their affirmative defenses were not futile. ... However, because defendants have adequately demonstrated that they possess claims that may avoid the entry of a final judgment against them, they should be allowed to interpose an answer and defend Sutton's theories of the case. This matter presents a clear example of one that "should be viewed with great liberality and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964).

Reversed and remanded for further proceedings in accordance with this opinion.


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