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Mortgage v. Regenye


August 11, 2008


On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. F-8594-00.

Per curiam.


Submitted July 21, 2008

Before Judges Graves and Yannotti.

Defendants Sandra and Peter Regenye appeal from an order dated March 26, 2007, which (1) adjourned the sheriff's sale of their house from March 29, 2007, until April 26, 2007, (2) ordered plaintiff Champion Mortgage to provide defendants with a revised payoff statement by March 28, 2007, and (3) rejected defendants' objection to the inclusion of post-judgment interest and counsel fees "that had been paid to the attorneys representing the plaintiff in a separate tax sale foreclosure, as a portion of the amount due with respect to the payment of real estate taxes." On appeal, defendants sole contention is that "their constitutional right to full discovery [was] violated." Having reviewed the record and applicable law, we are satisfied defendants' arguments are without sufficient merit to warrant extended discussion. See Rule 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated by Judge William C. Todd III in his oral decision on March 23, 2007, with only the following comments.

On June 19, 1998, defendants borrowed $220,000 from plaintiff at a yearly interest rate of 9.5 percent. The loan was secured by a mortgage on defendants' property, located in Galloway, New Jersey. Defendants defaulted on their payments under the loan, and on May 19, 2000, plaintiff filed a complaint for foreclosure. Defendants did not file an answer to plaintiff's complaint, and on September 25, 2000, a Final Judgment was entered stating that plaintiff was entitled to the sum of $238,891.22, together with lawful interest, costs, and counsel fees. The judgment also provided "the mortgaged premises be sold to raise and satisfy" the money owed.

According to plaintiff, thirty-three Sheriff's sales were scheduled between January 4, 2001, and January 10, 2008. During that time, defendants' filed for Chapter 13 bankruptcy on three separate occasions.

On March 13, 2006, "[i]n accordance with [defendants'] request for a payoff statement" plaintiff faxed defendants a letter, itemizing the amounts required to payoff their loan. The statement informed defendants that the total due as of March 31, 2006, was $393,673.77. This total consisted of the following amounts: a principal balance as of May 3, 2003 ($214,993.91); interest from May 3, 2003, until March 13, 2006 ($58,533.98); per diem interest for twelve days ($1007.28); late charges ($6349.80); corporate advances ($105,073.75);*fn1 suspense balance ($588.66); and outstanding fees and costs ($7126.39). The payoff statement also advised that if settlement did "not take place by 3/31/06, it [would] be necessary to obtain new payoff figures."

On March 15, 2007, defendants were provided with another "payoff figure," but that statement is not part of the record before us. In an effort to adjourn a Sheriff's sale scheduled for March 29, 2007, defendants filed a motion,*fn2 which was heard on March 23, 2007. During that proceeding, Mr. Regenye asked the court to adjourn the Sheriff's sale because defendants had "a person [who is] willing to invest" and defendants wanted "to review the numbers [to] see if [they could] structure a deal." The trial court's findings and conclusions included the following:

Okay. This is what I'm going to do: I am going to adjourn the sale for approximately 30 days from today to April 26th which presumably is something Mr. Regenye wanted me to do. Having said that, I should make it clear . . . that I don't foresee any possibility that I would adjourn the sale again, and I am not anticipating there's going to be any other proceedings that relate to the amount that's due because I believe that they have all been properly addressed or it will be addressed in the

[o]rder that I enter . . . . I am generally satisfied that the payoff statement that . . . was attached to [plaintiff's] letter of March 15, 2007, is appropriate and I'm going to specifically approve it subject to two additonal modifications . . . .

I am going to require the plaintiff to provide a new payoff statement to Mr. Regenye, and that payoff statement will be based on the March 15th statement . . . the statement attached to Mr. Becker's letter of March 15th, but it can have two changes on it: 1) if the plaintiff elects and considers it appropriate, and I think it appears to be appropriate . . . they can add reflecting an attorney's fee claim the sum of no more than $3,798 . . . and that's because . . . it appears that figure was not in the payoff number in the letter . . . .

The second thing I'm going to require is that they update the interest so that Mr. Regenye knows the total amount to pay off this obligation through the date of the next sale which will be April 26th.

For some unexplained reason, the Sheriff's sale scheduled for April 26, 2007, did not take place on that date, and on May 10, 2007, defendants filed their third Chapter 13 petition, which once again delayed the sale of their property. On October 9, 2007, the United States Bankruptcy Court for the District of New Jersey entered an order which allowed plaintiff to prosecute its foreclosure action. On December 21, 2007, we denied defendants' emergent application to stay another Sheriff's sale, but we granted defendants' motion to reinstate this appeal. The Sheriff's sale took placed on January 10, 2008, and plaintiff acquired title to the property.

"A trial court's rulings on discretionary decisions are entitled to deference and will not be reversed on appeal absent a showing of an abuse of discretion involving a clear error in judgment." In re Estate of Hope, 390 N.J. Super. 533, 541 (App. Div.), certif. denied, 191 N.J. 316 (2007). Moreover, this abuse of discretion standard applies to review of a trial court's discovery decisions. See, e.g., Wilson v. Amerada Hess Corp., 168 N.J. 236, 253 (2000); Connolly v. Burger King Corp., 306 N.J. Super. 344, 349 (App. Div. 1997).

In the present matter, it is clear from the payoff statement dated March 13, 2006, plaintiff's letter dated March 14, 2006, the subsequent payoff statement dated March 15, 2007, as well as the court's oral decision on March 23, 2007, and the order entered on March 26, 2007, that defendants were well apprised of the total amount outstanding on their mortgage loan. It is equally clear defendants were afforded an adequate opportunity to satisfy their financial obligation to plaintiff, but, unfortunately, they were unable to do so. Based on our review of the record, we discern no misapplication of discretion or error of law by the trial court.


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