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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4993-07T3
A-4997-07T3
A-5041-07T3
A-5047-07T3
MANUFACTURERS & TRADERS TRUST
COMPANY, TRUSTEE FOR SECURITIZATION
SERIES 1997-3, AGREEMENT DATED
JUNE 12, 1997,
Plaintiff-Appellant,
v.
AUDRY E. GREEN and
SHIRLEY GREEN, HIS WIFE,
Defendants-Respondents.
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,
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Plaintiff-Appellant,
v.
SHIRLEY GREEN and AUDRY E. GREEN,
Defendants-Respondents.
MANUFACTURERS & TRADERS TRUST
COMPANY, TRUSTEE FOR SECURITIZATION
SERIES 1997-3, AGREEMENT DATED
JUNE 1, 1997,
Plaintiff-Appellant,
v.
AUDRY E. GREEN and
SHIRLEY GREEN, HIS WIFE,
Defendants-Respondents,
and
PARKWAY MORTGAGE CORPORATION,
Defendant.
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THE CHASE MANHATTAN BANK, AS
TRUSTEE OF IMC HOME EQUITY LOAN
TRUST 1997-5 UNDER THE POOLING
AND SERVICING AGREEMENT DATED
AS OF SEPTEMBER 1, 1997,
Plaintiff-Appellant,
v.
AUDRY E. GREEN and
SHIRLEY GREEN,
Defendants-Respondents,
and
SHIRLEY FREEMAN, Tenant,
Defendant.
May 18, 2009
Submitted April 28, 2009 - Decided
Before Judges Winkelstein and Gilroy.
On appeal from the Superior Court of New Jersey, Chancery Division, General
Equity Part, Cape May County, F-7783-02, F-10766-04, F-4429-01, F-0862-02.
Flamm, Boroff & Bacine, attorneys for appellants (Robert A. Pinel, of counsel and
on the brief).
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Audry and Shirley Green, respondents pro se.
PER CURIAM
In these four back-to-back appeals, which we have consolidated for purposes of our opinion, plaintiffs
appeal from orders of the Chancery Division denying their post-judgment applications for attorneys' fees
under Rule 1:4-8. We affirm.
We briefly summarize the procedural aspects of the cases. The three mortgagees, Manufacturers & Traders
Trust Company, in docket numbers A-4993-07 and A-5041-07; Bank of New York, in docket number A-
4997-07; and Chase Manhattan Bank, in docket number A-5047-07, were all represented by the same
attorney in four separate foreclosure proceedings against defendants. In four separate opinions, this court
affirmed judgments of foreclosure in each case. See Mfrs. & Traders Trust Co. v. Green, No. A-7120-03
(App. Div. Jan. 4, 2008); Mfrs. & Traders Trust Co. v. Green, No. A-1124-04 (App. Div. Jan. 4, 2008);
Chase Manhattan Bank v. Green, No. A-1556-06 (App. Div. Jan. 4, 2008); Bank of N.Y. v. Green, No. A-
2349-06 (App. Div. Jan. 10, 2008). In the Chase Manhattan case, we remanded for the trial court to
address two limited issues unrelated to the issue now on appeal. We will not repeat the procedural and
factual histories of each foreclosure proceeding as they are set forth in our prior opinions.
On April 1, 2008, plaintiffs filed motions for counsel fees and costs incurred in pursuing the foreclosure
judgments both in the trial court and on appeal. In a written opinion dated April 17, 2008, Judge William
Todd denied the motions as to docket numbers A-5041-07 and A-5047-07; and in a written opinion dated
April 30, 2008, Judge Todd denied the motions as to docket numbers A-4993-07 and A-4997-07. The court
memorialized its decisions in orders on those dates.
In the judge's written opinions, he relied on the language of Rule 1:4-8 that requires an application for
sanctions to be filed no later than twenty days following the entry of a final judgment. R. 1:4-8. The court
concluded that the time limit was "intended to reflect the court's concern that any issues as to sanctions be
raised promptly, to permit action on such claims to be reviewed with any other issues which might be
raised on appeal." The court reasoned as follows:
Plaintiff's counsel did contemplate the potential for this application at the very
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beginning of these proceedings. . .
[The trial court's] decision [in the initial litigation] was issued in February 2004
and an order was entered striking defendants['] pleadings on February 17, 2004.
Judgment was not entered through the Office of Foreclosure until March 2005.
By that time, defendants had filed a bankruptcy petition. Following additional
proceedings in the Bankruptcy Court, final judgment was again issued in
December 2006. The appeals from that judgment were not resolved until
January 2008. . .
[Rule] 1:4-8 clearly requires that an application for sanctions be filed "no later
than 20 days following the entry of final judgment." This court is satisfied that
provision of the [r]ule must be interpreted as requiring the filing of the
application within 20 days of the date of the entry of the judgments which were
the subject of the notices of appeal resolved by the Appellate Division in January
2008. The judgments in these cases were entered, at the latest, by December
2006, and these applications should have been filed long ago. Plaintiff[]
apparently rel[ies], at least in part, on the provisions of the [r]ule which provides
that the term "final judgment" is to include any order deciding a post[-]judgment
motion. This court is satisfied that provision of the [r]ule is simply not applicable
here. Presumably the [r]ule was intended to provide guidance as to when
motions must be filed, when an attorney or litigant has filed papers that are
somehow frivolous, when the dispute is not resolved until some time after the
final judgment has been entered. There is no reasonable basis for suggesting the
[r]ule was intended to preserve the time for the filing of a motion for sanctions,
related to prior litigation before the trial court, until after an appeal from the trial
court's action has been resolved by the Appellate Division.
Following plaintiffs' motion for reconsideration of all four orders, on May 28, 2008, in a single written
opinion, the trial court again denied plaintiffs' application for Rule 1:4-8 counsel fees, and memorialized its
opinion in an order of that date. The court stated the following:
[P]laintiffs filed motions for awards of fees pursuant to R. 1:4-8, seeking fees for
services rendered both at the trial level and during the prior appeals. Those
motions were not presented at the trial level prior to the entry of the final
judgments which were the subject of the prior appeals. They were only filed
after the Appellate Division had resolved each of the appeals that had been filed,
generally affirming the actions previously taken at the trial level.
I addressed these motions for fees in two separate Letter Opinions. . .                                           . In each
case I denied the motion for fees. I concluded that Rule 1:4-8 required that the
motions be presented within 20 days of the entry of final judgment in each
respective matter. That in turn would have permitted any action taken by the
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trial court on those motions to be reviewed by the Appellate Division as it was
considering the defendants' appeals from those final judgments. I concluded
each motion was untimely. . .
These motions for reconsideration . . . appear to raise two specific issues that
were not clearly addressed in my prior letter opinions. . .
First, plaintiffs now argue that the court should relax the time restrictions of R.
1:4-8 to permit the filing of these applications out of time. It is clear this court
does have the authority to relax the time restrictions of the Rule if deemed
appropriate. See R. 1:3-4. I am not satisfied, however, that such a relaxation
would be appropriate here. . .                                                                          . [T]he time restrictions of the Rule serve
important and potentially valuable functions, particularly evident in the
circumstances presented here. . .                                                                       . [T]he Rule is structured to require an
application for fees to be presented within a discrete time following the entry of
final judgment. . .                                                                                     . It limits the amount of time that will pass between the
conduct alleged to give rise to the frivolous litigation and the determination as to
whether that conduct was in fact frivolous. It increases the likelihood that the
application for fees will be considered by the trial judge who handled the
underlying proceedings. More importantly, it permits any challenge to the trial
court's action on the frivolous litigation claim to be addressed with any appeal
from the final judgment. In these cases, the Appellate Division has already
devoted a substantial amount of time to the resolution of the prior appeals,
addressing a variety of issues in fairly detailed and extensive opinions which go
to the merits of the underlying claims and defenses. It seems entirely reasonable
to this court to require that the frivolous litigation claim be presented as
required by the Rule, if only to permit potential appellate review in an efficient
and effective manner. As an aside, one could also argue that litigants are
entitled to rely on the time provisions of the Rule when they are considering
whether or not to file an appeal, and just how an appeal will be prosecuted. In
any event, this court is satisfied it would not be appropriate to relax the time
restrictions of the Rule here, as plaintiffs suggest.
Plaintiffs have also provided authority supporting their claim that this court
would have authority to deal with claims for fees incurred in the prior appeals,
and that it was not necessary that those claims first be presented to the
Appellate Division. . .                                                                                 . Those cases do support the general proposition advanced
by plaintiff—that applications for fees incurred during an appeal can, in
appropriate circumstances, initially be presented to the trial court. In all of those
cases, however, an application for fees had initially been presented to and
resolved by the trial court prior to the time the matter was presented to the
Appellate Division. . .                                                                                 . None of these cases address this court's more basic
concern—that the initial application for fees must be presented within 20 days of
the entry of final judgment, pursuant to R. 1:4-8.
We agree with Judge Todd's thorough and well-reasoned opinion. We add only that appeals to the
Appellate Division, with very few exceptions, may only be taken from final judgments, which means the
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judgment must be final as to all parties and all issues. R. 2:2-3; Janicky v. Point Bay Fuel, Inc., 396 N.J.
Super. 545, 549-50 (App. Div. 2007) (citing R. 2:2-3(a)(1)). A final judgment also must include post-
disposition counsel fee applications. Gen. Motors v. City of Linden, 279 N.J. Super. 449, 454-56 (App. Div.
1995), rev’d on other grounds, 143 N.J. 336 (1996); Pressler, Current N.J. Court Rules, comment 2.2.2 on
R. 2:2-3 (2009). Here, plaintiffs did not file their counsel fee applications until after this court issued its
opinions. That delay has resulted in piecemeal appellate review, which, as we have often indicated, is an
"anathema to our practice." Janicky, supra, 396 N.J. Super. at 550 (internal quotation omitted). We decline
to place our imprimatur on this practice.
Plaintiffs' remaining arguments are without sufficient merit to warrant additional
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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