On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-27384-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Fasciale.
In this residential foreclosure action, defendant Richard DeFabrizio, pro se, appeals from two orders of the Chancery Division that entered default against him and dismissed his counterclaim because he failed to appear on the scheduled trial date. We affirm.
According to the foreclosure complaint, defendant executed a note and mortgage to Wells Fargo Bank in August 2005 for a loan of $271,489 secured by a mortgage on his residence located in Montclair.*fn1 Defendant has not made any payments toward the loan since March 2009. In May 2010, Wells Fargo Bank assigned the note and mortgage to plaintiff Federal Home Loan Mortgage Corporation.
Plaintiff filed its foreclosure complaint in May 2010. Defendant filed a timely answer denying the allegations of the complaint without factual elaboration, but his pleading also included several affirmative defenses and a counterclaim for alleged violation by plaintiff and Wells Fargo Bank of federal and state statutes. Plaintiff filed an answer to the counterclaim in September 2010.
The case was scheduled for a pretrial conference in the Chancery Division on June 7, 2011. On June 2, 2011, plaintiff's attorney received a notice issued by defendant seeking to depose a representative of plaintiff at 7:00 a.m. on June 6, 2011. Counsel for plaintiff promptly responded by letter of June 3, 2011, that plaintiff would not be able to produce a witness for deposition on such short notice.
The parties attended the pretrial conference on Tuesday, June 7, 2011. The court first addressed an outstanding discovery motion filed earlier by defendant alleging that plaintiff had failed to produce documentary discovery as demanded by him under Rule 4:18-1. Plaintiff's attorney represented that she had provided a copy of the Wells Fargo Bank loan origination file to defendant in December 2010 and had again responded to his demand for documents in April 2011. Defendant did not dispute that he had received the documents but sought a labeling of them to correspond to his demand for production. The court reviewed defendant's specific demands and plaintiff's responses and ruled that the responses complied with the discovery rule. The court denied defendant's motion to compel more specific answers.
The court then conducted a pretrial conference and requested that each party file and serve a pretrial memorandum by Friday of that week. The court also stated explicitly on the record that trial would begin the following Thursday, which was June 16, 2011. Plaintiff's attorney revealed that she would present only one witness at the trial; defendant did not know how many witnesses he would produce. When the court asked the parties whether they had anything else to raise at the pretrial conference, plaintiff answered no, and defendant did not respond. There was no discussion of the deposition that defendant sought of plaintiff's representative.
On June 16, 2011, defendant did not attend court for the trial. Instead, having engaged the services of a stenographer, he waited for the representative of plaintiff and counsel to appear for deposition at a different location. When plaintiff's representative and counsel did not appear, defendant made a short record of that fact with the stenographer.
On appeal before us, defendant claims that, after the pretrial conference of June 7, he had telephone conversations with the judge's chambers during which the judge's clerk told him the court had granted his motion to compel the deposition of plaintiff's representative on the morning of June 16, 2011. Other than defendant's claim to that effect, the record contains no document or other evidence of such a ruling by the court.
Plaintiff's attorney filed a certification in this court disputing defendant's statements.*fn2 Counsel states that she and plaintiff's representative were present at the courthouse on the morning of June 16, 2011, ready to argue a late-filed motion by defendant to compel the deposition. She and her witness were also prepared to proceed to trial. Counsel states that the court made a record in the courtroom of her appearance and defendant's absence. She states further that she called defendant's cell phone to inquire as to his whereabouts, but he did not respond to the call. She has produced her cell phone records to corroborate that a one-minute call was made to defendant's cell phone number at 10:43 a.m. on June 16, 2011.
Plaintiff's attorney states further in her certification that the court directed her to return at 1:30 p.m. for trial. She did return with her witness prepared to proceed to trial, but defendant still did not appear in the afternoon. The judge ruled that defendant was in default and his counterclaim would be dismissed. The judge asked plaintiff's attorney to prepare and submit an order to that effect under the so-called five-day rule, Rule 4:42-1(c). According to ...