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Newfield National Bank v. Peter D. Dipietro

November 9, 2011


On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. F-48886-08.

Per curiam.


Submitted October 24, 2011

Before Judges Grall, Alvarez and Skillman.

This is an appeal from interlocutory orders entered on a complaint and counterclaim in an action to foreclose on a mortgage. Because the appeal was filed without a grant of leave, we dismiss it. R. 2:2-3; R. 2:4-4.

In August 2007, defendant Peter D. DiPietro executed a fixed-rate five-year note and a first mortgage to plaintiff Newfield National Bank, which secures his repayment of $240,000 plus interest within the term of the note. Defendant defaulted in September 2008, and Newfield filed a complaint seeking foreclosure and possession. Defendant filed an answer and asserted four counterclaims seeking: damages for consumer fraud, N.J.S.A. 56:8-2; punitive damages, N.J.S.A. 2A:15-5.9; damages for common law fraud; and a declaration quieting title.

On September 16, 2010, the judge heard argument on the parties' cross-motions for summary judgment. Although defendant acknowledged signing the five-year note and mortgage and his failure to make the monthly payments required since 2008, he sought judgment primarily on the ground that he had applied for a thirty-year mortgage. After hearing argument, the judge set forth his reasons for granting summary judgment on the foreclosure to Newfield but concluded that defendant's counterclaims could not be addressed on summary judgment and should be transferred to the Law Division. He advised the parties that he would issue an order to that effect. Following the hearing, however, the judge signed an order granting Newfield summary judgment on the complaint and counterclaim, but the next day he issued an order memorializing his decision to transfer defendant's counterclaim to the Law Division.

With limited exceptions enumerated in Rule 2:2-3(a) that are inapplicable here, an order of the trial court is not appealable as of right until that court has resolved all issues involving all parties. Vitanza v. James, 397 N.J. Super. 516, 517-18 (App. Div. 2008). The orders from which defendant appeals lack that finality.

In real estate foreclosure actions, there is no final judgment until the court has an entered an order that "fixes the amount due under the mortgage and directs the sale of the real estate to raise funds to satisfy the amount due." Eisen v. Kostakos, 116 N.J. Super. 358, 365 (App. Div. 1971). Because no order resolving those issues has been entered in this foreclosure action, the summary judgment is not appealable as of right; the order is, in effect, a grant of partial summary judgment because it does not resolve all of the claims. See ibid.; see also Wells Fargo Bank, NA v. Garner, 416 N.J. Super. 520, 523-24 (App. Div. 2010) (dismissing an appeal from an order granting summary judgment in a foreclosure action filed before final judgment as interlocutory).

This court has discretionary authority to "grant leave to appeal from interlocutory orders, including those granting partial summary judgment, 'in the interest of justice.'" Vitanza, supra, 397 N.J. Super. at 517 (quoting R. 2:2-4). But this case does not warrant exercise of that authority. Customarily, appellate courts grant leave to appeal "sparingly." State v. Reldan, 100 N.J. 187, 205 (1985); Vitanza, supra, 397 N.J. Super. at 517. That approach is taken to avoid "piecemeal litigation" except in cases that it is "genuinely" warranted. Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006). On that reasoning, we have granted leave to appeal from a partial summary judgment in a foreclosure action when the case presents an important legal question not yet addressed by an appellate court. Eisen, supra, 116 N.J. Super. at 366. And, we have denied leave to appeal when there is no unresolved legal issue or other reason indicating that review prior to final judgment is in the interest of justice. Garner, supra, 416 N.J. Super. at 524.

After considering the issues raised on this appeal, we discern nothing warranting interlocutory review. Accordingly, we dismiss the appeal.


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