Opinion
DOCKET NO. A-2458-13T3
06-18-2015
WELLS FARGO BANK, NA, Plaintiff-Respondent, v. HOWARD DIXON; HIS/HER HEIRS, DEVISEES, AND PERSONAL REPRESENTATIVES, HIS, HER, THEIR OR ANY SUCCESSORS IN RIGHT, TITLE AND INTEREST; CLAUDIA DIXON, HIS/HER HEIRS, DEVISEES, AND PERSONAL REPRESENTATIVES, HIS, HER, THEIR OR ANY SUCCESSORS IN RIGHT, TITLE AND INTEREST, Defendants-Appellants.
Salvador Sanchez argued the cause for appellants (Denbeaux & Denbeaux, attorneys; Joshua W. Denbeaux and Nicholas A. Stratton, on the brief). Robert D. Bailey argued the cause for the respondent (Zucker, Goldberg & Ackerman, LLC, attorneys; Mr. Bailey, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Hayden. On appeal from Superior Court of New Jersey, Chancery Division, General Equity, Union County, Docket No. F-052010. Salvador Sanchez argued the cause for appellants (Denbeaux & Denbeaux, attorneys; Joshua W. Denbeaux and Nicholas A. Stratton, on the brief). Robert D. Bailey argued the cause for the respondent (Zucker, Goldberg & Ackerman, LLC, attorneys; Mr. Bailey, of counsel and on the brief). PER CURIAM
In this residential foreclosure action, defendants Howard and Claudia Dixon appeal from a January 10, 2014 order denying a hearing on the amount due on the mortgage. After reviewing the applicable law in light of the record below, we affirm.
Though the notice of appeal was filed in the name of both defendants, defendants only appeal from the order setting personal liability on the note, which was signed only by Howard. Hence, in this opinion, we use the name Dixon to refer to Howard Dixon.
Dixon executed a note to Wells Fargo Bank, NA (Wells Fargo) for the sum of $274,000 on February 10, 2005. The note also contained penalty clauses in the event of a late payment, including an acceleration clause that made the full amount of the principal and accrued interest due if Dixon defaulted by failing to make a full monthly payment. To secure the note, Dixon executed a mortgage to Wells Fargo on his residential property in Plainfield. On December 24, 2007, Dixon and Wells Fargo agreed to modify the loan, increasing the principal balance to $274,159.96 and increasing the interest rate.
After Dixon failed to pay the mortgage since October 1, 2009, Wells Fargo filed a complaint to foreclose on the property on October 22, 2010. In its complaint, Wells Fargo certified that it had reviewed the applicable records and as of October 14, 2010, Dixon owed $293,739.63. Dixon failed to file a contesting answer to the complaint, and the court entered default.
On July 31, 2013, Wells Fargo filed an application for entry of final judgment with the Office of Foreclosure and served Dixon with a copy of the notice of the application. In its application, Wells Fargo certified that $361,323.91 was due on the note, providing specifics, including the total principal and interest due, late charges, insurance payments, and the dates and amount of property taxes advanced. Additionally, Wells Fargo filed copies of the required loan documents.
On September 10, 2013, Dixon objected to Wells Fargo's application, claiming that it was deficient under Rules 4:64-1(d) and 4:64-2. Specifically, Dixon argued that the required documentation, namely a copy of the note, mortgage, assignment of mortgage, and other relevant documents were not included in Wells Fargo's submission. He further claimed that the certification of diligent inquiry was deficient because it did not certify that the original note had been reviewed and that the accuracy of the copy had been confirmed. Finally, he contended that Wells Fargo's certification of the amount owed was unsupported by any exhibits and requested a hearing on the amount that was due before entry of final judgment.
In response to Dixon's objection, on September 18, 2013, the Office of Foreclosure sent both parties a letter acknowledging receipt of Dixon's objection, but declining to transfer the application for final judgment to the county of venue, because it determined that the objection did not give a specific reason why the amount due was incorrect. The letter stated that Dixon had ten business days to file a motion with the General Equity judge of the county of venue; however, if he failed to do so, the Office of Foreclosure could consider and review any proposed order for final judgment. On Monday, September 30, 2013, Dixon filed a motion in the Superior Court Clerk's Office Foreclosure Processing Services Unit requesting a hearing with a judge in Union County Superior Court pursuant to Rule 4:64-9.
On October 10, 2013, despite Dixon's filing of the request for a hearing, the Office of Foreclosure recommended the entry of final judgment of foreclosure. That day, the chancery court entered an order granting final judgment, directing the sheriff to sell the property, and setting the final judgment amount at $361,323.91.
Notwithstanding the court's entry of final judgment, on November 21, 2013, a chancery judge heard oral argument on Dixon's motion for a hearing. On January 10, 2014, the judge entered an order denying Dixon's request for a hearing on the amount due, and further denying his request that final judgment not be processed until the hearing occurred.
In denying Dixon's motion, the judge first held that the motion was not timely made because it was not filed within ten calendar days of the Office of Foreclosure's September 18, 2013 letter. Despite this conclusion, the judge evaluated Dixon's substantive arguments and rejected them as without merit. The court found that a review of the file showed that Wells Fargo filed copies of the note, mortgage, and assignment at the time it filed its final judgment of foreclosure application, which satisfied Rule 4:64-2. She rejected Dixon's unsupported contention that Wells Fargo provided insufficient proof of the amount due as failing to meet the standard of a contesting answer. This appeal followed.
On appeal, Dixon contends that the court erred in finding that his motion was not timely filed. We disagree with the court's conclusion that the motion, due ten business days after the September 18 letter, was untimely. The motion was due on September 28, a Saturday. Saturdays, Sundays and legal holidays are excluded from calculation under Rule 1:3-1 and defendant filed the motion on September 30, a Monday. Thus, the trial judge's determination was mistaken. See State v. Johnson, 376 N.J. Super. 163, 170-71, 173 (App. Div.) (holding that in the absence of legislative direction, statutory time periods should be computed as provided in Rule 1:3-1), certif. denied, 183 N.J. 592 (2005). However, this error was not prejudicial since the judge thoroughly evaluated Dixon's substantive contentions. R. 2:10-2.
Next, Dixon alleges that the court erred in not granting him a hearing before the entry of final judgment because plaintiff's application was deficient. Specifically, Dixon claims that Wells Fargo did not comply with the filing requirements since copies of the note and mortgage were not served on him when Wells Fargo filed the application. We find this argument to be without merit. The trial judge properly found that Wells Fargo complied with the Rules in filing the copies of the original note and mortgage with the Office of Foreclosure, while only serving the notice of motion and the affidavit of amount due on foreclosure to defendants. The Rules clearly mandate that the documents establishing the amount due, Rule 4:64-2, be filed with the Office of Foreclosure, R. 4:64-1(d)(1). The Rules do not require them to be served on the defendant. R. 4:64-1(d)(2).
Dixon also contends that the Office of Foreclosure erred in not forwarding the application for a motion after an objection was filed. We need not reach this issue, as we agree with the trial court's decision that Dixon's objections were without merit, and Dixon has not demonstrated or alleged any prejudice from a failure to forward a meritless objection.
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Dixon further argues that Wells Fargo's certification of the amount owed was insufficient as it was without documentary support. We also find this argument without merit. According to the record, plaintiff's certification fully complied with Rule 4:64-1(b). Contrary to Dixon's claim, the Rules do not require an application for final judgment to be supported by computer generated documents. Rather, Rule 4:64-2(b) permits "[t]he proof of amount due may be supported by computer-generated entries." (emphasis added). The Rules set forth a specific set of requirements that Wells Fargo followed in this case. Ibid. A mere claim that information is insufficient does not constitute a bar to a foreclosure action. See generally Mony Life Ins. Co. v. Paramus Parkway Bldg. Ltd., 364 N.J. Super. 92, 106 (App. Div. 2003) (concluding that no hearing was warranted where defendant did not offer conflicting proof or establish a contested fact to be resolved).
As Dixon's objections were both without merit, we find no harmful error from the court's decision denying a hearing on the amount due. Additionally, by the time the court denied this hearing, the amount due had already been set by a final order from which Dixon did not appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION