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Manufacturers & Traders Trust Co. v. Green

May 18, 2009

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, 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.
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.



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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 28, 2009

Before Judges Winkelstein and Gilroy.

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 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 ...


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