May 4, 2017
appeal from Superior Court of New Jersey, Law Division, Essex
County, Docket No. L-6004-11.
M. Shapiro argued the cause for appellant (Middlebrooks
Shapiro, P.C., attorneys; Mr. Shapiro and Melinda D.
Middlebrooks, of counsel and on the brief).
Ann Rosenbloom argued the cause for respondent (Williams,
Caliri, Miller & Otley, P.O., and Knuckles, Komosinski
& Manfro, L.L.P., attorneys; Ms. Rosenbloom, of counsel
and on the brief).
Judges Lihotz, Whipple and Mawla.
Francine Reibman appeals from a September 15, 2014 final
judgment and an August 15, 2015 default judgment. For the
reasons that follow, we affirm.
and defendant Jay Myers were married on May 31, 1980. On
January 10, 2001, Myers's father, Maurice Myers
(Maurice), purchased a residential property in South Orange
for $367, 500. Plaintiff contributed approximately $67, 000
to the purchase price, and plaintiff, Myers, and their son
moved into the property.
and Myers began renovation on the property. Maurice
contributed $60, 000, and plaintiff's mother and uncle
contributed additional funds. On January 4, 2005, Maurice
deeded the property to Myers. The property was valued at $87
0, 00 0 and was unencumbered.
January 17, 2005, Myers obtained a $225, 000 refinance loan
from Ameriquest Mortgage Company (Ameriquest). The funds were
transferred to Myers's account, which plaintiff could not
access. Plaintiff did not sign the Ameriquest mortgage and
later claimed she was not aware of it.
20, 2005, Myers deeded the property from himself to himself
and plaintiff as husband and wife, and the deed was recorded
in the Essex County Register. Myers stated plaintiff had been
unhappy the property was solely in his name and requested a
deed to be prepared. Plaintiff, however, maintained she never
made such a request and did not know about the transfer.
claims, four months later, on November 17, 2005, Myers forged
her signature on a document, which purported to deed the
property from plaintiff and Myers back to Myers, as his sole
and separate property. Richard Olive, an attorney, prepared
the forged deed. That same day, the forged deed was recorded
in the Essex County Register.
November 23, 2005, Myers again mortgaged the property and
received $347, 000 from Columbia Home Loans, L.L.C.
(Columbia). The mortgage was recorded January 4, 2006. The
Columbia mortgage satisfied the Ameriquest loan, which was
discharged and filed on January 11, 2006, and provided Myers
with surplus funds of $74, 577.98; the surplus funds were
wired to Myers's account that plaintiff could not access.
January 27, 2006, Olive allegedly prepared another deed,
purporting to transfer the property from Myers to Myers and
plaintiff, as husband and wife. On June 9, 2006, Myers
applied to New Century Mortgage Corporation (NCMC) for a loan
and on the application; he acknowledged he was married. The
homeowners' insurance policy was in both Myers's and
plaintiff's names. On June 16, 2 006, Myers obtained a
mortgage of $437, 500 from NCMC.
Title Guaranty Company (Stewart) insured NCMC. As part of the
NCMC closing documents, Myers certified he was the sole owner
of the property; which was not his marital residence. The
mortgage instructions provided the "spouse must
sign" the closing documents, but plaintiff did not sign
NCMC mortgage was recorded July 18, 2006. Proceeds of the
loan satisfied the Columbia mortgage, which was discharged on
August 3, 2006. In 2007, Carrington Mortgage Services
(Carrington) began to service the NCMC mortgage loan by
collecting payments and paying taxes and insurance.
November 20, 2007, Carrington notified Myers his mortgage
payment had not been received. In August 2 008, Myers sent
Carrington a hardship letter explaining he could not pay the
mortgage loan because of expenses associated with the
illnesses of plaintiff and their son. Myers later claimed
plaintiff was aware of the hardship letter and subsequent
negotiations with Carrington. In September 2008, Myers and
Carrington signed a loan modification agreement; however, as
of November 1, 2008, Myers stopped paying the mortgage loan.
point in 2009, Myers continued, albeit unsuccessfully, to
negotiate with Carrington to re-modify the loan and provided
plaintiff's financial information. That same year,
plaintiff and Myers separated, and Myers briefly moved out of
the property; however, the couple did not divorce. Myers did
not financially support plaintiff. She relied upon her
disability receipts, stocks, bonds, and investments.
asserts until 2009, she was unaware of the mortgage loan or
the forged deed. Correspondence about the loan was mailed to
a post office box in Maplewood, which Myers stated plaintiff
had access to, but rarely visited.
January 12, 2010, NCMC assigned the $437, 500 mortgage and
loan to defendant Wells Fargo. On January 20, 2010, defendant
filed a foreclosure complaint, and default was entered
against Myers and plaintiff. On February 3, 2010, defendant
informed Stewart plaintiff's name did not appear on the
underlying loan or mortgage, and defendant sought to reform
the documents to reflect her subordinate interest in the
13, 2011, Gladys Shrum, on behalf of Carrington, replied to a
letter from Myers, questioning the validity of the 2008 loan
modification agreement because plaintiff had not signed it or
the mortgage. Shrum informed Myers the matter had been sent
to Stewart for investigation.
October 11, 2012, plaintiff filed a verified complaint
against defendant and Myers seeking declaratory relief,
alleging negligence, common law fraud, unjust enrichment,
breach of fiduciary duty, and other claims. The court entered
default against defendant and Myers; defendant sought to
vacate the default, which the court granted, and ultimately
filed an answer, cross claims, and counterclaims to establish
priority for equitable subrogation, fraud, and negligence
against plaintiff and Myers on March 28, 2013. Myers never
sought to vacate the entry of default.
October 11, 2013, plaintiff and defendant cross-moved for
summary judgment. Judge Nelson entered partial summary
judgment in favor of defendant. The judge granted defendant
an equitable mortgage on the property retroactive to April 5,
2005, in the sum of $224, 000 with interest for advances of
real estate taxes, insurance, and other expenses. The judge
dismissed plaintiff's claims against defendant for
general damages, punitive damages, and attorney's fees.
The judge determined a "factual issue remains on
N.J.S.A. 3B:28-3.1 and if plaintiff is in joint possession or
has extinguished her statutory rights." The judge
further ordered plaintiff's interests in the premises
"as to priority or subordinate is to be determined"
and "[a]ny ...