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Deutsche Bank National Trust Company, As Trustee v. Geeta P. Kollory

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 1, 2011

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, PLAINTIFF-RESPONDENT,
v.
GEETA P. KOLLORY, DEFENDANT-APPELLANT, AND [PETER S.] KOLLORY, HUSBAND OF GEETA P. KOLLORY, DEFENDANT.

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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 26, 2011 -

Before Judges Sabatino and C.L. Miniman.

Defendant Geeta Kollory appeals from an order entered on August 17, 2010, denying her motion to stay a sheriff's sale scheduled for the following day, and an order dated September 16, 2010, denying her motion to set aside the aforesaid sher- iff's sale. Because the issues she raises on appeal go to the propriety of the final judgment of foreclosure, which we have already affirmed, Deutsche Bank National Trust Co. v. Kollory, No. A-1195-08 (App. Div. Jan. 7, 2010), and because we denied her motion to amend these appeals to include the final judgment of foreclosure, we affirm.

Our earlier opinion sets forth the procedural history and facts relevant to this appeal. Id. at 2-8, 13-16. Because that decision disposed of all issues that were or could have been raised with respect to the final judgment of foreclosure and any and all orders preceding it, we need not recite the procedural history and facts. Only the proceedings that occurred after we affirmed the final judgment of foreclosure are relevant here. A sheriff's sale was scheduled for August 18, 2010. Some- time prior to that date, defendant filed a motion to stay the sheriff's sale. That motion and the supporting certification were not included in the appendix filed by defendant. This con- travened Rule 2:6-1(a)(1). However, she did submit the transcript of the proceedings on August 17, 2010. At that time, defendant's counsel argued:

Your Honor, because the other----proposed was a short sale which is based on the fair market value of the property which ought to be less than the payoff figures, and according to my appraisal it was coming way too high and, therefore, I was suggesting to them either they send me their appraisal which in case would conflict with mine or that I would put it up for sale and then they get paid off while I also regain my . . . equity and at the same time they will be paid more than what they would have had they preferred [a] short sale.

He further explained that the trustee for the holders of the mortgage suggested a short sale during mediation but the holders refused to consent to a short sale. Defendant had offered to put the property up for sale so that they could all walk away from it. However, defendant's counsel admitted that defendant could have done that at any time during the four years preceding the argument on the motion. On questioning from the court, defendant's counsel agreed that the judge had no power to order the holder of the mortgage to accept a short sale nor could the judge order the bank to take a deed in lieu of fore- closure. Additionally, the judge could not order the bank to modify the mortgage after a final judgment of foreclosure had been entered.

After considering all of defendant's arguments, the judge found: [Y]ou've had more than enough time to list this property for sale and to sell it. This is an '06 docket number. So the [c]omplaint was filed sometime in 2006. It is now August of 2010. You don't even have a listing agreement. You don't have an offer. You don't have a signed contract. You don't have anything. So what you want me to do is to tell [plaintiff] that they have to wait to see what's going to materialize.

When defendant's attorney protested that he would be able to get the judge a listing agreement in a day or two, the judge responded:

It makes no difference . . . . A listing agreement is merely an authorization for a broker to market the property at a suggested asking price. It's not a contract to sell the property. You may be optimistic that you're going to get a buyer in thirty days. It could take three hundred days. It could take three years. I don't know, you don't know what's going to happen in that market[]place, and I cannot tell [plaintiff] who's been waiting for four years to get to the end of this foreclosure process that they have to wait anymore.

As a consequence, the judge denied the motion for a stay. Plaintiff filed an appeal from that order on the day of the sheriff's sale, August 18, 2010. At the same time, she sought an appellate stay, which we denied on August 20, 2010. After the August 18, 2010, sheriff's sale, defendant filed a motion to set aside the sale. Once again, she did not include her moving papers in her appendix, contrary to Rule 2:6-1(a)(1).

Thus, we do not know what certification was submitted in support of the motion. However, defendant did provide us with the transcript of the argument, which occurred on September 16, 2010.

At that time, defendant's counsel argued that defendant was not able to sell her property because of the cloud on the title created by the foreclosure action. He argued that it was an unlawful restraint on alienation of property and that the prop- erty was sold at a sheriff's sale for a nominal sum, which deprived defendant of a chance to sell and reclaim some of the equity. He further argued a Consumer Fraud Act violation*fn1 and plaintiff's unclean hands in forcing defendant into a position where she had no choice but to go along with plaintiff, which was "really unconscionable." In the event the motion was denied, defendant sought an extension of the redemption period.

After considering the arguments made by both sides, the judge found: Now, just opining, I don't doubt for a second that it is totally possible for a person who is being foreclosed upon to get a better sale price th[a]n at a [s]heriff's sale. But that doesn't mean or that doesn't preclude the bank from moving on a foreclo-sure on a, on a borrower who has defaulted just because someone might be able to get a higher price.

The fact that some[one] only bid $100 doesn't per se make that Sheriff's sale a voidable, a voidable transaction. But, again, I don't think I can, I don't think I should be vacating or essentially reversing an [o]rder of a higher court judge which I have absolutely no power to do, even if I were inclined to do that and you can't assume I am.*fn2

So for these reasons obviously the stay [in] part is moot----been conducted and nor am I vacating for the reasons I said. I don't comment on the underlying claims you made regarding the violation of Consumer Fraud. I don't comment on any of that because it's not before me. But your application is denied. Nor do I comment on your right, if any, to seek a stay when the eviction arises because I imagine in due course it will, but I don't comment on that either. That's not before me . . . .

On September 16, 2010, defendant filed a second notice of appeal from the order entered that day denying her motion to vacate the sheriff's sale. Defendant thereafter moved to con- solidate the appeals, which we granted. In that motion, she sought to amend her notices of appeal to include the September 4, 2008, final judgment. We denied that portion of her order on January 4, 2011.

Defendant raises the following issues for our consideration:

POINT I - WHETHER THE SHERIFF'S SALE SHOULD BE SET ASIDE BECAUSE THERE WAS NO DEFAULT AT THE TIME OF FILING THE COMPLAINT IN JUNE 2006 UNDER THE NEW JERSEY FAIR FORECLOSURE ACT PROVISIONS.

POINT II - WHETHER PLAINTIFF VIOLATED [THE] DUE PROCESS RIGHTS OF DEFENDANT IN FILING [THE] FORECLOSURE COMPLAINT AGAINST THIS DEFENDANT.

POINT III - WHETHER THE SUMMARY JUDGMENT ENTERED BY [THE] COURT IS VOID OR VOIDABLE UNDER THE FOLLOWING FEDERAL AND NEW JERSEY STATE LAWS[:]

a. NEW CHANGES IN THE LAWS[;]

b. CHOICE OF LAW[;]

c. NEW JERSEY CONSUMER FRAUD ACT[;]

d. UNLAWFUL RESTRAINTS[;]

e. LIBERTY OF CONTRACT[;]

f. EQUITY[;]

g. FEDERAL REGULATIONS[.]

POINT IV - WHETHER THE APPELLATE COURT SHOULD REVIEW ISSUES NOT RAISED [I]N THE LOWER COURT UNDER THE PRESENT CIRCUMSTANCES.

We decline to consider any of the issues raised by defen- dant in these consolidated appeals. She has clearly violated our order of January 4, 2011, which denied her motion to amend her appeal to include the September 4, 2008, judgment. In any event, the issues raised by defendant were, or could have been, raised on her appeal from the September 4, 2008, final judgment of foreclosure. Indeed, we did address the issues she raised at that time. Deutsche Bank, supra, slip op. at 8-16. She may not again raise those issues or any new ones respecting the final judgment in these appeals. See McNeil v. Legislative Apportionate Comm'n, 177 N.J. 364, 395 (2003) (summarizing the doctrine of res judicata, whereby issues or claims that a litigant could have pursued in a prior proceeding, whether asserted or not, may not be litigated thereafter in a later proceeding), cert. denied, 540 U.S. 1107, 124 S. Ct. 1068 157 L. Ed. 2d 893 (2004); In re Estate of Dawson, 136 N.J. 1, 20 (1994) (summarizing the doctrine of collateral estoppel); Wildoner v. Borough of Ramsey, 316 N.J. Super. 487, 506 (App. Div. 1998) (same), rev'd on other grounds, 162 N.J. 375 (2000).

Defendant's brief exceeds the scope of the two orders on appeal. We have reviewed the orders from which these appeals were taken and the judge's reasons for entering them, and we find no error in his reasoning.

Affirmed.


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