Opinion
DOCKET NO. A-1914-14T3
10-25-2016
HUDSON CITY SAVINGS BANK, Plaintiff-Respondent, v. WILLIAM WILLIAMS, Defendant-Appellant, and MRS. WILLIAM WILLIAMS, his wife; SUPERMEDIA, LLC a/k/a IDEARC MEDIA, LLC; and FIA CARD SERVICES, NA, Defendants.
Joseph A. Chang argued the cause for appellant (Joseph A. Chang & Associates, LLC, attorneys; Mr. Chang and Jeffrey Zajac, on the brief). Gene R. Mariano argued the cause for respondent (Parker McCay, PA, attorneys; Mr. Mariano, of counsel; Stacy L. Moore, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 only binding on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Nugent and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-010898-12. Joseph A. Chang argued the cause for appellant (Joseph A. Chang & Associates, LLC, attorneys; Mr. Chang and Jeffrey Zajac, on the brief). Gene R. Mariano argued the cause for respondent (Parker McCay, PA, attorneys; Mr. Mariano, of counsel; Stacy L. Moore, Jr., on the brief). PER CURIAM
In this mortgage foreclosure matter, defendant William Williams appeals from a June 24, 2013 order granting plaintiff Hudson City Savings Bank's motion to strike defendant's untimely answer and entering default against defendant. We affirm.
We derive the following procedural history and facts from the record. Defendant formerly held title to a residence in Bernardsville. On July 7, 2008, he executed a note to plaintiff in the amount of $268,000. To secure payment, defendant executed a mortgage encumbering his residence in favor of plaintiff. The mortgage was recorded with the Somerset County Clerk's Office on July 11, 2008. On May 5, 2009, defendant executed a loan modification agreement with plaintiff, which reduced his mortgage interest rate and his monthly payment.
On October 1, 2011, defendant defaulted on the loan by failing to make his required payment. He has not made any payments on the mortgage since that date.
On June 14, 2012, plaintiff filed its foreclosure complaint. After the plaintiff served the complaint upon him, defendant filed a motion to extend his time to file an answer to the complaint. On November 16, 2012, the trial court granted this motion and ordered defendant to file his answer no later than February 14, 2013.
When this deadline passed and defendant had still not filed his answer, plaintiff filed a motion for entry of default on March 8, 2013. Six days later, defendant filed an answer and counterclaim. Because the answer was untimely, plaintiff filed a motion to strike the answer and counterclaim or, in the alternative, for summary judgment. Defendant filed a brief in opposition to the motion, but did not file an affidavit explaining his failure to file a timely answer.
On appeal, defendant represents that his attorney stated in the brief in opposition to plaintiff's motion that the attorney failed to file a timely answer "due to a clerical error." However, neither the attorney nor defendant submitted an affidavit attesting to this explanation as required by Rule 1:6-6.
On June 24, 2013, the trial judge granted plaintiff's motion to strike defendant's answer and to enter default against him. Thereafter, defendant did not file a motion for reconsideration or to vacate the default. Instead, the parties negotiated a Consent Final Judgment of Foreclosure that a second trial judge entered on December 3, 2014. This appeal followed.
The judge did not address plaintiff's motion for summary judgment or rule upon the merits of the contentions raised by defendant in his counterclaim. Sometime during the pendency of the foreclosure action, however, defendant filed a complaint raising these arguments against plaintiff in a separate action in Somerset County under Docket No. L-1545-13. At oral argument, the parties advised us that the trial court subsequently granted plaintiff's motion for summary judgment, after considering and rejecting defendant's contentions on their merits. Defendant has filed a notice of appeal from that order, which is still pending under Docket No. A-2276-15. --------
On appeal, defendant presents the following contentions:
POINT I
THE CHANCERY DIVISION'S DECISION DOES VIOLENCE TO WELL ESTABLISHED PRINCIPLES EMPHASIZING THE RENDERING OF INDIVIDUAL JUSTICE OVER STRICT PROCEDURAL COMPLIANCE.
POINT II
THE LIMITED RECORD AND APPLICABLE LAW DID NOT SUPPORT AN ORDER OF SUMMARY JUDGMENT DISMISSING THE DEFENDANT'S AFFIRMATIVE DEFENSES AND COUNTERCLAIMS.
A. The Defendant's Counterclaim Stated a Prima Facie Case for Predatory Lending Under the CFA, Which Was Not Subject to Dismissal On a Summary Judgment Basis.
B. Recent Decisions in New Jersey Provide Support for the Principle That Predatory Lending Practices Violate the CFA.
C. Violations of TILA, RESPA, and HAMP Can Be Used To Support a Cause of Action Under the New Jersey Consumer Fraud Act.
POINT III
ALTERNATIVELY, THE DEFENDANT IS ENTITLED TO A LIMITED REMAND TO THE CHANCERY DIVISION SO THAT THE COURT CAN MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF THE ORDER ENTERED ON JUNE 24, 2013.
We have considered defendant's contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
As defendant concedes in his reply brief, he "has no issue with the [Consent] Final Judgment" and "his arguments on appeal relate solely to the June 24, 2013 Order" striking his answer. However, as defendant also acknowledges, "an order . . . consented to by the attorneys for each party . . . is . . . not appealable." New Jersey Schools Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010) (quoting Winberry v. Salisbury, 5 N.J. 240, 255, cert. denied, 340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 638 (1950)). Thus, "[a] party may not seek appellate review of an adverse interlocutory order without seeking relief from the outcome of the litigation as embodied in the judgment. A litigant satisfied with the judgment cannot have an advisory appellate evaluation of an alleged interlocutory error." Id. at 309 (quoting Magill v. Casel, 238 N.J. Super. 57, 62 (App. Div. 1990)).
Applying these principles, we conclude that because he does not contest the Consent Final Judgment of Foreclosure, defendant is barred from challenging the June 24, 2013 interlocutory order striking his answer.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION