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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2349-06T22349-06T2
BANK OF NEW YORK, AS TRUSTEE FOR
FIRST CITY CAPITAL HOME EQUITY
LOAN TRUST 1998-2, UNDER THE
POOLING AND SERVICING AGREEMENT
DATED NOVEMBER 1, 1998,
Plaintiff-Respondent,
v.
SHIRLEY GREEN and AUDRY E. GREEN,
Defendants-Appellants.
Submitted December 3, 2007 - Filed
Before Judges S. L. Reisner and Gilroy.
On appeal from the Superior Court of New Jersey, Chancery Division, General Equity
Part, Cape May County, Docket No. F-10766-04.
Shirley Green and Audry Green, appellants pro se.
Flamm, Boroff & Bacine, P.C., attorneys for respondents (Robert A. Pinel, of counsel and
on the brief).
PER CURIAM
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This is the last of four real property foreclosure appeals filed by defendant-mortgagors, Shirley Green and Audry E.
Green, her husband. The four appeals filed under Docket Nos. A-7120-03T5, A-1124-04T2, A-1156-06T2, and A-2349-
06T2 were submitted back to back for our consideration. In this matter, defendants appeal from the November 16,
2006, judgment of foreclosure entered in the Chancery Division, General Equity Part, Cape May County, under
Docket No. F-10766-04. We affirm.
I.
On September 30, 1998, defendants executed a $53,250 promissory note and mortgage in favor of Parkway
Mortgage, Inc. The note was for a term of twenty years and required defendants to repay the principal, together
with interest, at the rate of 10.5% per annum, by making monthly payments of $531.64 on the fifth day of each
month, commencing November 5, 1998. The mortgage encumbered property at 19 East Lena Street, Middle
Township. Both the note and mortgage contained a provision that permitted the note holder, on default, to
accelerate the entire balance of principal and interest due under the note on a thirty-day written notice to
defendants. On October 7, 1998, the mortgage was recorded in the Office of the Cape May County Clerk, in Book
2728 of Mortgages, Page 185. On the same day that defendants executed the note and mortgage, Parkway assigned
the note and mortgage to plaintiff. The assignment was recorded on May 25, 1999, in Book 273 of Assignments,
Page 576. The servicing rights for the mortgage were subsequently transferred from Advantage Mortgage Corp. to
Fairbanks Capital Corporation.
On April 2, 2004, Fairbanks sent defendants a "notice of intention to foreclose," advising that the note and
mortgage were in default "because we have not received the installments due for the months of April 2001, through
March 2004." The notice advised defendants of their right to cure the default by paying the amounts due within
thirty days from the date of the letter. On June 17, 2004, plaintiff filed its complaint in foreclosure, alleging that
defendants were in default for failing to pay their monthly payments and property taxes. On or about July 30, 2004,
defendants filed an answer and counterclaim. On August 30, 2004, defendants filed a motion for change of venue
and to amend their counterclaim. On September 21, 2004, plaintiff cross-moved for summary judgment.
Following oral argument on November 12, 2004, Judge Seltzer: 1) granted plaintiff's motion for summary judgment;
2) denied defendants' motion to change venue and to amend the counterclaim; 3) struck defendants' answer and
defenses, and declared them to be in default; 4) dismissed the counterclaim; and 5) referred the matter to the
Foreclosure Unit of the Superior Court to proceed as an uncontested action.
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A confirming order was entered on November 29, 2004. On January 28, 2005, defendants' motion for
reconsideration was denied.
On February 14, 2005, defendants filed a Chapter 13 bankruptcy petition. On November 1, 2005, the Bankruptcy
Court entered an order granting plaintiff relief from the automatic stay. On May 5, 2006, the trial court denied
plaintiff's request to certify the November 29, 2004, order as final for purposes of appeal. On August 31, 2006,
plaintiff moved for entry of judgment. Defendants objected and cross-moved "for entry of mortgage servicing
fraud," asserting that Fairbanks had caused the mortgage loan default. Following an October 12, 2006, hearing, the
trial court dismissed defendants' objections and cross-motion, and directed the Foreclosure Unit to proceed with
the motion for entry of final judgment. A confirming order was entered the same day. A final judgment was entered
on November 16, 2006.
II.
On appeal, defendants argue:
POINT I.
THE TRIAL JUDGE ERRED IN GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT.
A. THE TRIAL JUDGE ERRED IN DETERMINING THAT PLAINTIFF WAS THE PROPER
ASSIGNEE OF THE MORTGAGE.
B. THE TRIAL JUDGE ERRED IN DETERMINING THAT DEFENDANTS HAD DEFAULTED IN
MAKING PAYMENTS ON THE PROMISSORY NOTE, JUSTIFYING THE
ACCELERATION OF THE AMOUNT OF PRINCIPAL AND INTEREST DUE ON THE
NOTE AND MORTGAGE.
POINT II.
THE FORECLOSURE ACTION WAS BARRED BECAUSE THE EARLIER FORECLOSURE
ACTION, PERTAINING TO THE PROPERTY, HAD BEEN DISMISSED WITH PREJUDICE.
POINT III.
PLAINTIFF WAS NOT ENTITLED TO SUMMARY JUDGMENT BECAUSE: 1) FAIRBANKS
CREATED DEFENDANTS' MORTGAGE DEFAULT THROUGH IMPROPER AND ABUSIVE
MORTGAGE LOAN SERVICING, RESULTING IN DEFENDANTS BEING CHARGED
UNCONSCIONABLE AND UNWARRANTED LATE FEES AND THE COST OF PLACED
INSURANCE COVERING THE MORTGAGED PREMISES.
A trial court will grant summary judgment to the moving party "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R.
4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). "An issue of fact is genuine only if,
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considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with
all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the
trier of fact." R. 4:46-2(c).
On appeal, "the propriety of the trial court's order is a legal, not a factual, question." Pressler, Current N.J. Court
Rules, comment 3.2.1 on R. 2:10-2 (2008). "We employ the same standard that governs trial courts in reviewing
summary judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif.
denied, 154 N.J. 608 (1998).
We have considered defendants' arguments in light of the record and applicable law. We are not persuaded by any
of the arguments presented. We affirm substantially for the reasons expressed by Judge Seltzer in his oral decision
of November 12, 2004. R. 2:11-3(e)(1)(A). Nevertheless, we add the following comments.
We determine defendants' argument that they had not defaulted on their payments on the note and mortgage is
meritless. With the exception of the June 12, 2001, payment of $558.22, which was subsequently reversed and
returned to defendants on September 27, 2002, and the February 24, 2004, transfer of the two payments from the
508 Main Street account, defendants did not make any other payments after April 5, 2001. The complaint was not
filed until June 17, 2004. Moreover, defendants were in default for failing to pay municipal taxes. The mortgage
placed an obligation upon defendants to "pay all taxes, assessments, charges, fines and impositions attributable to
the Property which may attain priority over . . . the mortgage." Here, defendants failed to pay land taxes for the years
2000 through 2003. Lastly, the trial judge granted defendants additional time to cure the default by paying the
amount due from April 2001 into court, but defendants failed to deposit the monies as directed when they filed
their motion for reconsideration.
In Point II, defendants argue that the foreclosure action should have been dismissed because the first foreclosure
action had been dismissed with prejudice. We disagree.
The earlier complaint, filed on May 21, 2001, alleged a default as of February 5, 2001. However, the June 17, 2004,
complaint, initiating the instant foreclosure action, as amended on August 23, 2004, alleged a default as of April 5,
2001. While the dismissal of an earlier foreclosure complaint with prejudice would preclude a mortgagee's recovery
from the default alleged in that complaint, that dismissal does not grant a mortgagor the liberty, without
consequence, to default with respect to future mortgage payments and taxes. Stated differently, a new foreclosure
action based upon a new default is not barred. To the extent not addressed here, defendants' remaining arguments
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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Affirmed.
This was the second complaint in foreclosure filed by plaintiff. A prior complaint filed under Docket No. F-10024-01
was dismissed by order of March 20, 2002, for failure of plaintiff to present proofs of default.
The issues presented on appeal were not clearly identified under "appropriate point headings" as required by Rule
2:6-2(a)(5). We set forth appellants' claimed errors as gleaned from their brief in terms of issues.
(continued)
(continued)
8
A-2349-06T2
January 10, 2008
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