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Deutsche Bank National Trust Co. v. Kollory

January 7, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-10644-06.

Per curiam.


Submitted: October 21, 2009

Before Judges Cuff and C.L. Miniman.

Defendant Geeta P. Kollory appeals from a September 4, 2008, judgment determining that plaintiff Deutsche Bank National Trust Company, as Trustee, was entitled to have the sum of $171,941.67 plus interest from March 1, 2008, and counsel fees of $1,869.42, raised and paid out of the mortgaged premises; ordering the sale of said premises; and absolutely barring and foreclosing all equity of redemption in and to the mortgaged premises.*fn2 Defendant's notice of appeal did not include an appeal from any prior interlocutory orders.*fn3 We affirm.

On January 12, 2004, defendant tendered a note and mortgage on a residence in Colonia to secure the sum of $150,000 to Aames Funding Corporation, plaintiff's predecessor-in-interest. The note was due on February 1, 2034, and payments of $1046.83 per month were to commence on March 1, 2004. The mortgage was recorded on March 6, 2004, in the office of the Middlesex County Clerk.

Late payments resulted in a default in 2005 and a foreclosure action was instituted. Plaintiff and defendant negotiated a Default Forbearance Agreement with HomEq Servicing Corporation (HomEq), the mortgage servicer for plaintiff, pursuant to which the parties agreed that total arrears due as of December 1, 2005, were $19,232.16. Defendant agreed to make an initial payment of $11,000. She also agreed to pay $2120.37 commencing January 23, 2006, as her regular payment and a portion of the arrears. That sum was to be paid monthly through March 23, 2007, when her regular monthly payment would resume. The Agreement provided, "In the event any of the payments required hereunder are not received and posted by the date they are due, Borrower shall be in default under this Agreement and HomEq shall be entitled to proceed with foreclosure." A stipulation of dismissal dated February 1, 2006, was filed shortly thereafter.

Defendant defaulted on the loan shortly thereafter, prompting plaintiff to exercise its contractual right to accelerate the balance due on the note and mortgage. Specifically, the payment records of HomEq indicate that the February 23, 2006, payment was received four days late and the March 23, 2006, payment was seven days late.*fn4 On May 11, 2006, HomEq sent a notice of intention to foreclose on the mortgaged property to defendant. The letter indicated that three payments were outstanding and the total amount in arrears was $6,770.83.

On June 13, 2006, defendant responded with a letter to HomEq contending that the monthly payments of $2,120.37 had been sent each month since December 23, 2005. She claimed that the payments were current, with the next payment due on June 23, 2006. No proof of timely payment was attached. Despite this letter, on June 19, 2006, plaintiff filed a summons and complaint in foreclosure. On June 24, 2006, HomEq received a late payment of $2,120.36, which it declined to accept.

On August 15, 2006, HomEq and defendant entered into a second Default Forbearance Agreement, which held the foreclosure in abeyance. The parties agreed that the total arrears due as of August 1, 2006, were $11,852.03. Defendant agreed to make an initial payment of $3,895 on August 20, 2006, and thereafter make twenty-one monthly payments of $2,434.99 starting September 20, 2006. The Agreement contained identical default language. As a result of the forbearance agreement, defendant did not file an answer to plaintiff's complaint.

The payment due on September 20, 2006, was eight days late. On October 5, 2006, plaintiff notified defendant of its intention to file a request to enter default for defendant's failure to submit an answer to the June 2006 complaint. Defendant responded to plaintiff's letter stating:

At the time of filing an Answer*fn5 to your Complaint, an agreement came into effect . . . and continues . . . until today with varying monthly payments because of interest rate adjustments. Therefore, you have to withdraw any action pending if [you have] not already done so.

The letter noted that the payment agreement was being rearranged again "because of the ARM rate adjustment for October 2006, going forward," and asked plaintiff not to proceed in foreclosure.

Several late payments were received in the months that followed. Specifically, the payments due on October 20, November 20, and December 20, 2006, were all ten to nineteen days late. The payments due on January 20 and February 20, 2007, were about two weeks late and no payments were made for March and April 2007.*fn6 HomEq then rejected a late payment of $2588.95 on May 2, 2007; reinitiated legal proceedings against defendants; and obtained a default judgment of foreclosure on the mortgaged property on July 24, 2007, for failure to file an answer to the June 2006 complaint. Prior to securing the default judgment, HomEq issued a reinstatement quote on July 16, 2007, showing total arrears of $18,021.22 as of July 31, 2007. After the default judgment was procured, HomEq issued another reinstatement quote on August 3, 2007, indicating total arrears of $19,682.83 as of August 31, 2007.

A sheriff's sale was scheduled for September 2007. Defendant submitted a motion to vacate final judgment and file an answer, which was granted September 24, 2007. On October 11, 2007, defendant filed an answer, alleging various defenses and claims for violation of federal and state law. Plaintiff filed a motion for summary judgment dated November 13, 2007, and returnable December 21, 2007.

At the December 21, 2007, motion hearing, the judge instructed defendant to brief the late-payments issue, which was submitted on or about January 22, 2008. On January 25, 2008, defendant produced her accounting of the payments made, setting forth a surplus allegedly being carried forward as a credit on the account. According to defendant, this accounting established that her payments were current; thus, she was not in default. She showed three payments made in 2007 and noted, "Question if $4,112.16 of 3/3/07 is reconciled with positive balance carried forward, where is default?" This accounting ignored the fact that late charges were imposed; ignored the failure to make two monthly payments in 2007; and ignored the rejection of the May 3, 2007, payment. The judge found defendant was in default because the rejected May 2007 payment failed to bring the balance on the debt current. Therefore, he granted plaintiff's motion for summary judgment. An order memorializing this decision was entered on January 28, 2008.

Defendant filed a motion for leave to appeal this interlocutory order on March 4, 2008. A motion to stay the summary judgment was submitted on April 9, 2008. On July 23, 2008, we granted defendant's motion to file her appeal as within time but denied her motion for leave to appeal. A final judgment was subsequently entered on September 4, 2008. This appeal follows.

Defendant claims summary judgment was inappropriate because the evidence presented at trial raises "serious doubt" as to whether she defaulted on the loan. Specifically, she contends the court ignored evidence of a surplus in prior payments that should have been carried into 2007; the court's summary judgment order contradicts its earlier case management order and discovery schedule; and plaintiff failed to prove default. Defendant claims any default on her part was the result of plaintiff's conduct.

Rule 2:5-1(f)(3)(A) provides in pertinent part that in all civil actions the notice of appeal "shall designate the judgment, decision, action or rule, or part thereof appealed from." The comments to this rule note, "While the rule does not in terms so provide, it is clear that it is only the judgments or orders or parts thereof designated in the notice of appeal which are subject to the appeal process and review." Pressler, Current N.J. Court Rules, comment 6.1 on R. 2:5-1(f) (2010). We have generally enforced this rule.

For example, in Sikes v. Township of Rockaway, 269 N.J. Super. 463, 465 (App. Div.), aff'd o.b., 138 N.J. 41 (1994), the plaintiff argued that the trial judge erred by denying his request for special interrogatories asking the jury to return separate verdicts for medical expenses and lost wages. We held that the argument was not properly before us because "[p]laintiff's notice of appeal stated that he was appealing 'regarding credit to be received under the Tort Claims Act.'" Ibid. Additionally, he sent a letter to the Clerk of the Appellate Division "reiterating that 'the scope of plaintiff/appellant's appeal will only include the issues raised during the motion of July 10, 1992; that is, the credit, if any, to be given to the defendant/respondent under the Tort Claims Act.'" Id. at 465-66. We concluded that "the only issue before us [was] the proper method of calculating the credit to defendants for payments from collateral sources." Id. at 466.

In Campagna v. American Cyanamid Co., 337 N.J. Super. 530, 549 (App. Div.), certif. denied, 168 N.J. 294 (2001), the plaintiffs sought a direction to the trial judge "'that defendant failed to warn and that Orimune OPV was a defective product as a matter of law.'" We found this request to be essentially an appeal "from the ...

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