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Bank of New York v. Green

January 10, 2008

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.



On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Cape May County, Docket No. F-10766-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 3, 2007

Before Judges S. L. Reisner and Gilroy.

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.*fn1 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.

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 ...


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