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Deutsche Bank National Trust Co. v. Mazzella

Superior Court of New Jersey, Appellate Division

August 6, 2013

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE UNDER NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2006-5, Plaintiff,
v.
WINDY MAZZELLA, NOVASTAR MORTGAGE, INC., A NEW JERSEY CORPORATION, Defendants, and WINDY MAZZELLA, Third-Party Plaintiff-Appellant,
v.
US BANK, SAXON MORTGAGE SERVICES, INC., MERITECH, FEIN, SUCH, KAHN & SHEPARD, P.C., Third-Party Defendants, and ZUCKER, GOLDBERG & ACKERMAN, LLC, Third-Party Defendant-Respondent.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 9, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. F-32573-08.

Richard J. Kilstein argued the cause for appellant (Kilstein & Kilstein, LLC, attorneys; Mr. Kilstein, on the brief).

Andrew C. Sayles argued the cause for respondent (Connell Foley, LLP, attorneys; Karen Painter Randall, of counsel; Mr. Sayles, on the brief).

Before Judges Messano and Ostrer.

PER CURIAM

Defendant, third-party plaintiff Windy Mazzella appeals from the November 3, 2011, order dismissing her complaint against the law firm of Zucker, Goldberg & Ackerman (ZGA) with prejudice for failure to state a claim. R. 4:6-2(e). We set forth at length the unusual procedural history leading to the order.

On August 22, 2008, Deutsche Bank National Trust Company (Deutsche Bank), as Trustee under Novastar Mortgage Funding Trust Series 2006-5, filed a foreclosure complaint against Mazzella. Mazzella filed her answer and third-party complaint naming, among others, ZGA as a defendant. Because the order under review resulted from a motion to dismiss pursuant to Rule 4:6-2(e), we accept as true the allegations contained in Mazzella's third-party complaint. Cornett v. Johnson & Johnson, 414 N.J.Super. 365, 384 (App. Div. 2010).

In 2007, Mazzella executed a forbearance agreement (the agreement) with Deutsche Bank's predecessor in interest regarding a loan on real property she owned. Mazzella made three payments in accordance with the agreement, but her fourth payment was refused. Mazzella claimed that ZGA and the other third-party defendants "refused to acknowledge the existence and/or validity of said agreement." ZGA served Mazzella with a notice of intention (NOI) to foreclose on January 4, 2008. A different law firm filed Deutsche Bank's foreclosure complaint.

None of Mazzella's attorney's repeated attempts to contact ZGA regarding the NOI was successful. Mazzella claimed her credit rating was adversely affected as a result.

As to ZGA, Mazzella's third-party complaint alleged violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§ 1692 to 1692o, the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -73, and negligence. ZGA never filed an answer and, according to Mazzella, never participated in pre-trial discovery nor attended case management conferences. On March 1, 2011, the judge informed all parties that the case was listed for trial on April 4.[1] On March 23, ZGA filed a motion to dismiss pursuant to Rule 4:6-2(e).

On the morning of the scheduled trial, Mazzella and all parties except ZGA reached a settlement that was placed on the record. The judge determined ZGA's pending motion to dismiss would be withdrawn, and the case would be transferred from the Chancery Division to the Law Division. On April 21, 2011, the judge entered an order: permitting ZGA to file its answer within twenty days; setting forth a limited discovery schedule; and, adjourning the trial until September.[2] Mazzella served discovery requests which, she claims, went unanswered.

Despite the April 21 order, on May 24, the judge issued a nine-page opinion granting ZGA's motion and dismissing Mazzella's complaint against ZGA for failure to state a claim.[3]It is unclear exactly what happened thereafter, but, the judge agreed to consider anew ZGA's motion to dismiss and permitted Mazzella to file opposition. ZGA essentially argued that "the Court's reasoning in the May 24, 2011[, ...


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