Opinion
DOCKET NO. A-4515-13T2
10-30-2015
WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. ROBERT WALSH, his heirs, devisees and personal representatives and his/her, their, or any of their successors in right, title and interest, Defendant-Appellant, and MRS. WALSH, wife of Robert Walsh, her heirs, devisees and personal representatives and his/her, their, or any of their successors in right title and interest; Frances Walsh, her heirs, devisees and personal representatives and his/her, their or any of their successors in right, title and interest; John P. Walsh, Sr., his heirs, devisees and personal representatives and his/her, their, or any of their successors in right, title and interest; Rahway Hospital; Independence Community Bank, United States of America, Defendants.
Nicholas A. Stratton argued the cause for appellant (Denbeaux & Denbeaux, attorneys; Joshua W. Denbeaux and Mr. Stratton, on the briefs). Henry F. Reichner argued the cause for respondent (Reed Smith, LLP, attorneys; Mr. Reichner, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Haas and Manahan. On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-028000-12. Nicholas A. Stratton argued the cause for appellant (Denbeaux & Denbeaux, attorneys; Joshua W. Denbeaux and Mr. Stratton, on the briefs). Henry F. Reichner argued the cause for respondent (Reed Smith, LLP, attorneys; Mr. Reichner, on the brief). PER CURIAM
In this mortgage foreclosure case, defendant Robert Walsh appeals from the September 27, 2013 order of the Chancery Division denying his "motion seeking hearing as to amount due[.]" We affirm.
Defendant's notice of appeal also states that he is appealing from the April 23, 2104 final judgment of foreclosure, although he incorrectly states that the judgment was entered on April 25, 2013. However, his brief does not address any issue specifically related to the April 23, 2014 judgment and, therefore, we assume his challenge to that judgment has been abandoned. Grubb v. Borough of Hightstown, 353 N.J. Super. 333, 342 n.1 (App. Div. 2002) (explaining that issue raised in notice of appeal but not briefed is abandoned).
On April 4, 2008, defendant's father borrowed $196,000 from Wachovia Mortgage, FSB (Wachovia), which was the predecessor in interest of plaintiff Wells Fargo Bank, N.A., and executed a note and a mortgage encumbering a residence in Sea Bright Borough, New Jersey. The mortgage was duly recorded on May 7, 2008 in the Monmouth County Clerk's Office.
On April 16, 2009, defendant's father conveyed the property to defendant, subject to the mortgage and note. Later that year, plaintiff acquired Wachovia and became the holder of defendant's note and mortgage.
Defendant stopped paying the mortgage and, on October 17, 2011, plaintiff declared that the loan was in default. On November 28, 2012, plaintiff filed a complaint in foreclosure against defendant and, after defendant failed to file an answer, default was entered.
Plaintiff named a number of other individuals and entities as defendants in its complaint. None of these defendants filed answers and none are participating in this appeal.
Rule 4:64-1(d)(1)(A) requires a party seeking foreclosure to serve the defendant with a notice of motion for entry of judgment. The motion must include "an affidavit of amount due," which must have a schedule annexed setting forth "the principal due as of the date of default; [and] advances authorized by the note or mortgage for taxes, hazard insurance and other stated purposes . . . ." R. 4:64-2(b). The affidavit "may be supported by computer-generated entries." Ibid.
The Rules governing the foreclosure of mortgages were amended after the completion of this litigation in the Chancery Division. These amendments are not pertinent to the issues involved in this appeal. To avoid confusion, we have therefore applied the Rules in the 2014 Edition of the N.J. Court Rules.
The moving party must also supply a certification of diligent inquiry. In this certification, the attorney preparing the motion must state that he or she has spoken to an employee of the plaintiff who has personally reviewed the affidavit of amount due, "the original or true copy of the note, mortgage and recorded assignments . . . being submitted" and that the employee has confirmed their accuracy. R. 4:64-2(d).
In compliance with these requirements, plaintiff's July 9, 2013 notice of motion to enter final judgment was accompanied by a certification of proof of amount due, executed by its Vice President of Loan Documentation. In the annexed schedule, the certification set forth the amounts due for the unpaid principal balance ($204,937.64); interest ($10,834.93); late charges ($564.01); real estate taxes ($4,363.02); property insurance ($1,050.37); and property inspections ($105.00), and stated that the amounts due were accurate. Plaintiff also submitted a certification of diligent inquiry and accuracy of foreclosure documents and factual assertions.
Rule 4:64-1(d)(1)(A) provides in pertinent part that a party "who disputes the correctness of the affidavit [of amount due] may file an objection stating with specificity the basis of the dispute and asking the court to fix the amount due." (emphasis added). Rule 4:64-9 states that a notice of motion filed with the Office of Foreclosure (the Office) must apprise the defendant of the requirement that "ANY OBJECTION MUST ADDRESS THE SUBJECT OF THE MOTION AND DETAIL WITH SPECIFICITY THE BASIS OF THE OBJECTION." (emphasis added). Rule 4:64-9 further states:
"The Office of Foreclosure, a unit of the Administrative Office of the Courts, is responsible for recommending the entry of orders or judgments in uncontested foreclosure matters. R. 1:34-6." ATFH Real Prop., LLC v. Winberry Realty P'ship, 417 N.J. Super. 518, 520 n.2 (App. Div. 2010), certif. denied, 208 N.J. 337 (2011). --------
On receipt of a specific objection or at the direction of the court, the Office of Foreclosure shall deliver the foreclosure case file to the judge in the county of venue, who shall schedule such further proceedings and notify the parties or their attorneys of the time and place thereof.In accordance with Rule 4:64-9, plaintiff's motion included the required notice that any objection filed by defendant had to be stated with specificity.
[(emphasis added).]
On July 18, 2013, defendant filed an objection to plaintiff's motion with the Office of Foreclosure. However, he merely alleged that "plaintiff did not provide the proper proofs with its [m]otion" and "[t]he amount due is not supported." Defendant did not "stat[e] with specificity" any objection to the figures set forth in plaintiff's certification of amount due. He did not allege the figures were incorrect or that he did not owe the amounts plaintiff detailed in the schedule annexed to the certification.
On August 9, 2013, the Office advised defendant that his objections failed to comply with the requirements of Rule 4:64-1(d). The Office explained that defendant's objections failed to address or "dispute the correctness" of plaintiff's certification of the amount due; did not "give a specific reason why the [c]ertification of [a]mount [d]ue [was] incorrect"; and did not state "'with specificity the basis of the dispute.'" Therefore, the Office stated it would not transfer the matter to a judge for further proceedings.
This ruling, however, did not foreclose defendant from seeking to have a judge review his objections. The Office stated that defendant could submit a motion to the General Equity Judge in Monmouth County if he wished to seek such a review.
On August 19, 2013, defendant filed a motion in the Chancery Division seeking a hearing on his objections and reiterating the same arguments he had unsuccessfully presented to the Office. In response, plaintiff supplied computer-generated documents, as permitted by Rule 4:64-2(b), providing further information concerning the payments it made for taxes and insurance, and the dates when the property inspections occurred.
On September 27, 2013, Judge Patricia Del Bueno Cleary conducted oral argument on defendant's motion and determined that defendant was not entitled to a hearing because the objections he raised were not specific and did not comport with the requirements for objections under Rule 4:64-1(d)(1)(A) and Rule 4:64-9. The judge explained her ruling:
[D]efendant[] failed to state with any specificity a dispute to determine. [He] make[s] blanket allegations. They're not specific. [He] just say[s he] dispute[s] the amount due. [He] dispute[s] the numbers.After entry of the final judgment of foreclosure on April 23, 2104, this appeal followed.
. . . .
. . . The plaintiff[] [has] set forth proofs as to the amounts due. The defendant just merely wants a hearing, saying prove it again. And I don't think that's what the statute or the rule sets forth.
On appeal, defendant argues that the trial "court erred when it determined that defendant's objection to the amount due was not specific." We have considered defendant's argument in light of the record and applicable legal standards and conclude it is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.
Contrary to defendant's contention, plaintiff supplied all of the required documents at the time it filed its notice of motion for entry of judgment under Rule 4:64-2, including a certification of the amount due and a schedule listing these amounts. Defendant's objection to the motion did not challenge any specific entry in the certification or the schedule and, therefore, Judge Del Bueno Cleary correctly concluded that no further proceedings were necessary under Rule 4:64-9.
In his reply brief, defendant argues for the first time that the trial "court erred when it permitted the Office of Foreclosure to make a legal determination as to the specificity of [d]efendant's objection." We generally decline to consider arguments raised for the first time in a reply brief. L.J. Zucca, Inc. v. Allen Bros. Wholesale Distribs. Inc., 434 N.J. Super. 60, 87 (App. Div.) (citing Borough of Berlin v. Remington & Vernick Eng'gs, 337 N.J. Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001)), certif. denied, 218 N.J. 27 (2014). Moreover, Judge Del Bueno made her own determination that defendant's objections to plaintiff's certification of amount due were not specific and did not warrant a hearing or further proceedings. Thus, defendant's argument that the Office overstepped its authority lacks merit.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION