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Reibman v. Myers

Superior Court of New Jersey, Appellate Division

July 10, 2017

FRANCINE REIBMAN, a married woman, Plaintiff-Appellant,

          Argued May 4, 2017

         On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6004-11.

          Joseph M. Shapiro argued the cause for appellant (Middlebrooks Shapiro, P.C., attorneys; Mr. Shapiro and Melinda D. Middlebrooks, of counsel and on the brief).

          Betsy 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).

          Before Judges Lihotz, Whipple and Mawla.


          WHIPPLE, J.A.D.

         Plaintiff Francine Reibman appeals from a September 15, 2014 final judgment and an August 15, 2015 default judgment. For the reasons that follow, we affirm.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         On July 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.

         Plaintiff 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.

         On 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.

         On 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.

         Stewart 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 any documents.

         The 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.

         On 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.

         At some 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.

         Plaintiff 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.

         On 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.[1] 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 property.

         On July 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.

         On 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.[2]

         On 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 ...

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