Plaintiff, Somerset Trust Company by notice of motion seeks an order directing defendants, William Sternberg and Harriet Sternberg, to pay to plaintiff reasonable litigation costs and reasonable attorney fees pursuant to N.J.S.A. 2A:15-59.1. This matter presents an issue about which we have found no reported decision; namely, whether a plaintiff mortgagee which has
been awarded counsel fees in a foreclosure action pursuant to R. 4:42-9 is further entitled to an award of litigation costs and attorney fees under N.J.S.A. 2A:15-59.1 for those "additional expenses" incurred as a result of a frivolous defense filed by a defendant mortgagor. For the reasons expressed herein, we find that the plaintiff mortgagee is entitled to an award under N.J.S.A. 2A:15-59.1.
The underlying action involves a foreclosure suit in which final judgment of foreclosure has previously been entered in plaintiff's favor. A brief recitation of the relevant events occurring prior to the entry of final judgment is necessary. Default having occurred on a 1986 mortgage and note held by plaintiff, a complaint in foreclosure was filed on February 15, 1989. Thereafter, defendant mortgagors filed a timely answer. By reason of the answer filed, the action was transferred from the Office of Foreclosure to this Court to proceed as a contested matter.
On or about May 2, 1989, plaintiff mortgagee served a request for admissions upon defendants. Plaintiff specifically requested defendants to admit that they were in default of the terms of the mortgage and note which were the subjects of the foreclosure action. Defendants failed to respond to this request within the 30 days prescribed by R. 4:22-1.
Plaintiff filed a motion seeking summary judgment in its favor, and, on August 18, 1989, after finding that defendants' answer contained no legal or equitable defenses, this Court entered an order striking the pleading. The matter was transferred back to the Office of Foreclosure and, thereafter, proceeded on an uncontested basis. On October 5, 1989, Final Judgment was entered in plaintiff's favor against defendants, William and Harriet Sternberg. Plaintiff now makes this application.
In pertinent part, N.J.S.A. 2A:15-59.1 states:
a. A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and
reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.
It is plaintiff's contention that the defense asserted in this action satisfies the requirement that the pleading was "frivolous" as required by the terms of N.J.S.A. 2A:15-59.1. Plaintiff argues, therefore, that it is ...