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Emc, LLC, Successor In Interest To Emigrant Mortgage Company, Inc v. Ivy Zoe Cooper and Vashti Brouwers

November 5, 2012

EMC, LLC, SUCCESSOR IN INTEREST TO EMIGRANT MORTGAGE COMPANY, INC., PLAINTIFF-RESPONDENT,
v.
IVY ZOE COOPER AND VASHTI BROUWERS, DEFENDANTS-APPELLANTS, AND MR. COOPER, HUSBAND OF IVY ZOE COOPER, HENDRIKUS BROUWERS; VASHTI BROUWERS; JENNIFER WINGFIELD; AND JAMES U. ONWUNALIJ, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-46467-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2011

Before Judges A. A. Rodriguez, Sabatino, and Ashrafi.

After a two-day bench trial, plaintiff EMC, LLC, successor in interest to Emigrant Mortgage Company, Inc. ("Emigrant") obtained a judgment of foreclosure against defendants Ivy Zoe Cooper and Vashti Brouwers on a defaulted residential mortgage loan. The trial judge rejected defendants' claim that their signatures on the mortgage documents had been forged, instead adopting the opinion of Emigrant's handwriting expert that the signatures were authentic. Applying the cleric-penitent privilege, the judge excluded testimony proffered by defendants alleging that Cooper's son-in-law had admitted to a reverend that he had forged their signatures.

Defendants now appeal, contending that (1) the trial court's factual findings were contrary to the weight of the evidence and constitute a miscarriage of justice; (2) the court should have granted their motion for a new trial and entered judgment in their favor; and (3) the court misapplied the cleric-penitent privilege in barring evidence of the son-inlaw's alleged admission of forgery.

For the reasons that follow, we affirm.

I.

The mortgaged property at issue in this case is a residence in Willingboro that Cooper initially purchased in 2004 for $150,000 in cash. Cooper is an ordained minister and has a master's degree in economics. Her daughter is Vashti Brouwers, who is married to co-defendant Hendrikus Brouwers.*fn1 Vashti, Hendrikus, their two children, and Cooper all resided at the property at issue. Hendrikus worked in an importation business.

In December 2006, Cooper executed a quitclaim deed that added Hendrikus to the title of the property. According to Cooper, she executed the deed as part of an agreement with Hendrikus, in which he reciprocally agreed to contribute to the household expenses. Cooper also contended that she had agreed to the conveyance as an inducement to Hendrikus to stop abusing Vashti.

Three months after Cooper's conveyance to Hendrikus, a mortgage on the property dated March 30, 2007 was executed in favor of Emigrant to secure a $110,000 loan. According to the mortgage documents, the listed borrowers were Hendrikus, Vashti, and Cooper. At closing, $6,110.63 from the loan proceeds were applied to an outstanding municipal tax lien on the premises. Eventually the note and mortgage went into default, as no payments were made after June 1, 2008.

The property was severely damaged in a July 2008 fire. According to Cooper, an insurance adjustor who came to the site after the fire explained to her that the property was subject to Emigrant's mortgage lien. Cooper contends this conversation was the very first time that she became aware of the existence of the mortgage.

According to Cooper and Vashti, Hendrikus must have stolen their identification papers at the time of the 2007 mortgage loan and presented them at the closing to the lender's title clerk. They further claimed that Hendrikus had forged their signatures on the mortgage documents, and that he used the loan proceeds for his own purposes.

Cooper filed a complaint in municipal court against Hendrikus based on his alleged forgery.*fn2 Hendrikus disappeared in August 2008, and the record suggests that he is out of the country. Hendrikus did not appear at trial and he has not participated in this litigation through counsel or otherwise.

In November 2008, Emigrant filed a foreclosure complaint against Cooper, Vashti, Hendrikus, "the husband of Ivy Zoe Cooper,"*fn3 Jennifer Wingfield,*fn4 James U. Onwunalij,*fn5 and "unknown occupants 1 through 5." Cooper and Vashti filed an answer, denying that they executed a mortgage with Emigrant. They also filed a counterclaim against Emigrant alleging that their purported signatures on the mortgage documents had been forged and that Emigrant was negligent in failing to verify the authenticity of those signatures before disbursing the funds at closing. The remaining defendants, including Hendrikus, did not answer, and consequently default judgment was entered against them.*fn6

On the first day of trial, the judge ruled upon several motions in limine. In particular, the judge granted Emigrant's motion to preclude any evidence that Hendrikus had physically abused Vashti, finding that the allegation of abuse related only to the signing of the 2006 quitclaim deed and not the 2007 mortgage.*fn7 The judge preliminarily denied Emigrant's motion to bar testimony alleging that Hendrikus, in defendants' presence, had admitted to Reverend Emerson Deline that he had forged their signatures on the mortgage documents. Lastly, the judge denied a motion by defendants to exclude, as improper net opinion, the testimony of William J. Ries, a forensic document examiner retained by Emigrant as a handwriting expert.

Without apparent objection, the judge permitted defendants to present their witnesses at trial first. Both Cooper and Vashti testified in their own behalf. They also presented testimony from Reverend Deline and their own handwriting expert,

J. Wright Leonard, also a forensic document examiner.

During the course of her testimony, Cooper reiterated her position that her signature appearing on the mortgage documents had been forged. She adamantly denied ever signing a mortgage because she wanted to retire and would not have had the money to pay off a mortgage.

Cooper testified that after the July 2008 fire, an insurance adjustor met her and Hendrikus at the premises. According to Cooper, Hendrikus told the adjustor that they did not plan to repair the house, but that they wanted the insurance funds to purchase another one. Cooper disagreed and began arguing with Hendrikus. As Cooper recalled it, the adjustor then interrupted and stated that Emigrant Bank had a lien on the house. Allegedly surprised by this assertion, Cooper hired an attorney several days later to protect her interests.

Cooper did acknowledge in her testimony that prior to the day of the fire, a message had been left on her answering machine from Emigrant Bank calling about a mortgage. According to Cooper, she called Emigrant about the message, but its representative declined to speak to her because the mortgage was not in her name. However, after questioning Hendrikus, she felt certain that any mortgage that had been taken out was not on her property.

During her cross-examination, Cooper was questioned about the date that the mortgage was executed, March 30, 2007. Cooper said she had worked that day in New York City, and that her employer would have a record of that. Despite this contention, Cooper never obtained any proof from her employer confirming her attendance at work on that particular day. She also claimed that her driver's license, which was presented and photocopied at the closing, must have been stolen from her purse.

Vashti similarly testified that she first learned of the mortgage when the insurer's representative visited the property after the fire. She likewise denied signing any mortgage on the property.

Vashti admitted, however, that she had learned of Emigrant's involvement with the property before the fire. Specifically, in April 2008, Vashti's account balance at TD Bank was lower than what she thought it should be. When she had pressed TD Bank for an explanation, she was ...


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