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Everhome Mortgage Company v. Maria Torres and Edwin Torres


June 2, 2011


On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-34918-07.

Per curiam.


Submitted May 2, 2011

Before Judges Lisa and Reisner.

Defendants, Maria Torres and Edwin Torres, appeal from several orders entered in conjunction with plaintiff's mortgage foreclosure action against them. In particular, they appeal from the Chancery Division orders of August 27, 2008 (denying their cross-motion to dismiss the complaint), September 17, 2008 (striking their answer and counterclaim), and May 11, 2009 (denying their motion to vacate the September 17, 2008 order). Final judgment of foreclosure was entered on March 19, 2010. On appeal, defendants argue that (1) the court erred in entering the orders we have mentioned because plaintiff lacked standing to prosecute the foreclosure action, (2) the requisite notices that must precede a mortgage foreclosure action were not sent to defendants or were not sent by the proper means, and (3) plaintiff or its predecessor charged excessive and unlawful closing fees and late charges. We reject these arguments and affirm.

The mortgage loan was entered into on September 26, 2006. Plaintiff was not the original mortgagee, but received an assignment of the mortgage subsequent to the closing date. This was a refinance mortgage, not a purchase-money mortgage. The amount was $358,295, payable with interest at a fixed rate of 6.5%, over a thirty-year period. The proceeds of the loan were used to pay off seventeen creditors of defendants, including two mortgages on their property, debts to credit card companies and others, and delinquent real estate taxes.

Defendants made the required monthly payments until July 1, 2007. The payment due on that date was not made, nor were any payments made thereafter. Plaintiff chose to accelerate the debt, as authorized by the mortgage documents. After sending defendants a notice explaining loss mitigation procedures, notice of delinquency, and notice of intent to foreclose, plaintiff initiated this action on December 11, 2007. Defendants filed an answer and counterclaim. They asserted various defenses. Plaintiff moved for summary judgment in its favor. Defendants opposed the motion and filed a cross-motion to dismiss the complaint. On August 27, 2008, the court denied both parties' motions and scheduled a bench trial to resolve the disputed issues.

On September 4, 2008, Judge Thomas P. Olivieri presided over the bench trial. Plaintiff called as its only witness Lorri Beltz, a Senior Default Contested Coordinator in its employ. Referring to the applicable documents that were presented in evidence, Ms. Beltz explained the history of the loan, the circumstances of the assignment to plaintiff, and the default. She detailed the notices that were sent to defendants, including the dates on which they were sent and the manner in which they were sent. She also explained how all of the charges to defendants were within the limits authorized by law. Defendants did not testify and presented no witnesses.

Judge Olivieri found Beltz credible. Based upon her testimony and the documentary record, he found that plaintiff had the requisite standing to prosecute the action, that all required notices were sent in the manner required by law, and that defendants were not charged any excessive fees. The judge accordingly entered the September 17, 2008 order striking defendants' answer, dismissing defendants' counterclaim, and transmitting the matter to the Foreclosure Unit as an uncontested case.

Defendants subsequently filed a motion seeking to vacate the September 17, 2008 order. A hearing was held before Judge Olivieri on May 11, 2009. From the colloquy, it is apparent that defendants provided no basis for the relief they requested, but were basically inquiring whether a final judgment had yet been entered and when the case would be ripe for their anticipated appeal to this court. The judge assured defendants that they could appeal any of the orders entered in the case within forty-five days of the entry of final judgment. The judge then entered an order on May 11, 2009 denying the motion defendants had made.

Final judgment of foreclosure was entered on March 19, 2010. This appeal followed.

We have reviewed the complete record. Initially, we note that the findings of a trial judge sitting without a jury are considered binding on appeal when supported by adequate, substantial and credible evidence. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Under our limited standard of review, "'we do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice.'" Ibid. (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)). We are satisfied that Judge Olivieri's factual findings are amply supported by the record. We are also satisfied that his legal conclusions are supported by the record and are consistent with the controlling legal principles. We therefore have no occasion to set aside his ultimate determination.

We affirm substantially for the reasons expressed by Judge Olivieri in his oral decisions at the conclusion of each of the proceedings that preceded the three orders under review. Defendants' arguments lack sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).



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