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EMC Mortgage Corp. v. Fitzroy

Superior Court of New Jersey, Appellate Division

September 30, 2013

MATTHEW FITZROY, Defendant, and PATRICE SPRINGETTE, Defendant-Appellant


Argued telephonically September 23, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-24016-06.

David M. Schlachter argued the cause for appellant (Law Offices of David M. Schlachter, LLC, attorneys; Mr. Schlachter, on the brief).

Sanjay Ibrahim argued the cause for respondent (Parker Ibrahim & Berg LLC, attorneys; Anthony Del Guercio and Melinda Colón Cox, on the brief).

Before Judges Reisner and Carroll.


Defendant Patrice Springette appeals from an order dated December 16, 2011, denying her motion to return this foreclosure case to mediation, and a February 7, 2012 order, denying an application for a stay of eviction from the foreclosed premises.[1]For the reasons that follow, we affirm.

In 2005, Springette and her then-fiancé (defendants) obtained a $371, 250 loan, secured by a mortgage on their home. They defaulted on the loan in 2006. Plaintiff filed its foreclosure complaint on December 18, 2006. On January 25, 2007, defendants filed a "cross-complaint" asserting that some of their mortgage payments were misapplied. However, their pleading did not deny that they were in default. Springette and her fiancé both signed the cross-complaint. On July 20, 2007, the trial court granted summary judgment striking the answer and defenses. A final judgment of foreclosure was entered on December 4, 2007, and the property was sold at a sheriff's sale on August 19, 2009.

On August 24, 2009, defendants filed a motion to vacate the foreclosure judgment and to vacate the sheriff's sale, alleging that Springette was not served with the foreclosure complaint and defendants were not served with notice of the sheriff's sale.

By order dated November 6, 2009, Judge Glenn Berman denied the motion, noting that both defendants were served with the complaint by mail and filed an answer, and that notice of the sheriff's sale was posted on the premises. Defendants did not appeal from that order. Instead, on January 27, 2010, they filed another motion to vacate the sheriff's sale, this time contending that they had been making mortgage payments pursuant to a forbearance agreement. Judge Berman denied that motion by order dated March 19, 2010. However, he also ordered the parties to participate in mediation. Defendants did not appeal from that order either.

After the case was not resolved at mediation, Springette filed a motion to require continued mediation based on her claim that plaintiff failed to fully participate in the mediation. Her motion was supported by a certification from an attorney who had not participated in any of the mediation sessions and had no personal knowledge about those sessions. Plaintiff filed opposition, supported by a certification of counsel attesting that either he or one of the firm's associates had attended the mediation sessions and that the mortgage company's representative had been available to participate by telephone. Judge Berman denied the motion by order dated December 16, 2011.

On this appeal, Springette argues that the trial court should have vacated the final judgment of foreclosure and the sheriff's sale. Those arguments are not properly before us, because she did not file a timely appeal from the trial court's orders denying that relief. However, they are also without merit for the reasons stated by Judge Berman. Springette further argues that the trial court should have ordered continued mediation, because plaintiff failed to "meaningfully" participate in the prior mediation process. Plaintiff presented evidence that its counsel attended all eight mediation sessions and that a representative of the mortgage company was available by telephone for those sessions. Based on the record presented to us, we find no abuse of Judge Berman's discretion in denying the motion to continue the mediation. See U.S. Bank Nat. Ass'n v. Williams, 415 N.J.Super. 358 (App. Div. 2010).


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