On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0565-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Holston, Jr. and Grall.
Defendant, Peter C. Andresen, appeals the Law Division's August 19, 2005 order denying his motion to vacate the order dismissing his counterclaim against plaintiff, Bank One National Association (Bank One). The order was entered as a result of defendant's failure to file a timely demand for trial de novo, after an adverse arbitration finding, in accordance with Rule 4:21A-6(a) and (c). The reasons for the court's order are contained in the court's August 22, 2005 memorandum of decision. Defendant also appeals the Chancery Division's order transferring his counterclaim to the Law Division. We affirm.
The original plaintiff was Homecomings Financial Network, which filed a mortgage foreclosure complaint in October 2000 against defendant. Homecomings Financial Network was the holder of the mortgage being foreclosed by assignment from Old Kent Mortgage Company (Old Kent). The mortgage was security for a note in the amount of $270,000 from defendant to Old Kent against real property in Sea Isle City. Bank One National Association is the trustee for Homecomings in this litigation.
Defendant, in his May 6, 2002 answer and counterclaim, made claims for monetary damages and rescission. Defendant claimed that the property subject to the mortgage was his primary residence and that plaintiff failed to comply with terms of the Truth in Lending Act (15 U.S.C.A. §§ 1601 to -67) and the Fair Foreclosure Act (N.J.S.A. 2A:50-53 to -68) and that he was entitled to interest, fees and costs related to the transaction.
Plaintiff, while contending that defendant had received a truth in lending statement and had executed the same, claimed that defendant's primary residence was in Maryland and not Sea Isle City and thus the Truth in Lending Act was not applicable to his mortgage loan.
The matter was set for trial to determine if the residence to be foreclosed was defendant's primary residence. Prior to trial, in early 2004, defendant requested a payoff amount from the plaintiff and paid off the mortgage arrearage, without prejudice to his claim for return of funds over the principal debt. Given the payoff of the mortgage, on February 17, 2004, counsel for plaintiff wrote to then Chancery Division Judge Seltzer informing the judge of plaintiff's intention to dismiss the foreclosure action against defendant. Because plaintiff's counsel never received an executed stipulation of dismissal and defendant objected to executing same and because defendant still had a viable counterclaim pending, the judge entertained argument as to whether he should enter an order dismissing plaintiff's foreclosure complaint and transfer the counterclaim to the Law Division for resolution.
On August 27, 2004, after conducting oral argument, the judge entered an order dismissing plaintiff's complaint in foreclosure. Because defendant's counterclaim was a claim for money damages and because the judge was engaged at the time in a lengthy trial, which would delay the counterclaim being heard for several months, the judge exercised his discretion and severed the counterclaim from the Chancery Division foreclosure action, which he dismissed. The judge then transferred defendant's counterclaim for recoupment and money damages to the Law Division, which he ordered filed under a Law Division docket number.*fn1
On November 22, 2004, Judge Visalli, following transfer to the Law Division, denied defendant's motion for summary judgment. The judge then ordered that the case be listed for non-binding arbitration in April 2005 and set for trial thereafter.
On April 25, 2005, arbitration was conducted in accordance with Rule 4:21A-1 at the Cape May County Courthouse and the arbitration award was entered that date dismissing defendant's claim. Counsel for plaintiff signed the arbitration award. Defendant likewise signed the arbitration award but added "to acknowledge receipt of copy only."
The defendant then claimed "indigency status" in order to be relieved of the required filing fee of $200 required for a trial de novo. On May 22, 2005, defendant applied for waiver of the payment of the $200 as part of his purported notice of demand for trial de novo of an adverse arbitration award as required by Rule 4:21A-6(b)(1) and (c).
Judge Visalli, by order dated May 26, 2005, after examining the affidavit of defendant in support of his claim of indigency, determined that he had not demonstrated he was without sufficient funds to pay the $200 trial de novo fee. Defendant then paid the fee by check dated June 7, 2005. By letter dated June 9, 2005, the Civil Division team leader returned defendant's June 7, 2005 trial de novo filing fee check for $200. The letter informed defendant that if he had ...