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Elizabeth Kroll v. Wells Fargo Bank

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 28, 2011

ELIZABETH KROLL, PLAINTIFF-APPELLANT,
v.
WELLS FARGO BANK, N.A., DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2134-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 7, 2011 - Decided Before Judges Rodriguez and Grall.

Plaintiff Elizabeth Kroll appeals from an order granting summary judgment in favor of defendant Wells Fargo Bank, N.A. and denying her motion to suppress defendant's affirmative defenses. We affirm substantially for the reasons stated by Judge Russello in the portion of his oral opinion of January 22, 2010 that discusses the motion for summary judgment.

The basis for plaintiff's claim against Wells Fargo was its alleged failure to give her notice of the adjourned date of a foreclosure sale on a property located in New York. The property was subject to an $81,000 judgment lien in plaintiff's favor against a co-owner of the mortgaged premises. Plaintiff sought damages in the amount of the lien. The material facts are not in dispute. The foreclosure action was commenced in the State of New York by defendant's predecessor in interest on January 20, 2004. Plaintiff was served with the complaint, and defendant's predecessor obtained an order declaring plaintiff in default in May 2004. A Judgment of Foreclosure and Sale was entered on September 8, 2004, and plaintiff does not dispute the propriety of that judgment. Although plaintiff was in default, defendant's predecessor sent her notice of a foreclosure sale scheduled for November 4, 2004. Plaintiff does not assert that she appeared on the date of the first sale. That sale date was adjourned twice - to April 1, 2005 and then to June 16, 2005. Plaintiff was not given notice of the adjourned dates, and defendant's predecessor purchased the property, foreclosing all subsequent liens. Defendant resold the property on March 31, 2007.

Plaintiff filed this action on February 27, 2008. In the trial court, she acknowledged that as a defaulted party she was not entitled to notice of the foreclosure sale under New York law. She claimed that because notice of the first foreclosure sale was sent to her gratuitously, defendant assumed an obligation to provide notice of the later adjourned sale dates.

After considering the record in light of the arguments plaintiff presents on appeal and the judicial decisions cited by plaintiff's attorney in the trial court, we have determined that plaintiff's arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

20110428

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