SHULAMIS ADELMAN, Individually and as Executrix of the Estate of NORMAN G. ADELMAN, Plaintiffs-Appellants,
BSI FINANCIAL SERVICES, INC., Defendant, and WELLS FARGO HOME MORTGAGE, Defendant-Respondent.
November 29, 2017
appeal from Superior Court of New Jersey, Law Division,
Monmouth County, Docket No. L-3143-11.
W. Denbeaux argued the cause for appellants (Denbeaux and
Denbeaux, attorneys; Abigail D. Kahl, on the brief).
F. Reichner argued the cause for respondent (Reed Smith, LLP,
attorneys; Henry F. Reichner and David G. Murphy, on the
Judges Fuentes, Koblitz and Manahan.
defendant in a foreclosure case may not fail to diligently
pursue a germane defense and then pursue a civil case against
the lender alleging fraud by foreclosure. Plaintiff, Shulamis
Adelman, individually and as executrix of the estate of her
deceased husband Norman, appeals from a June 12, 2015 order
dismissing with prejudice her individual claims for breach of
contract and violation of the Consumer Fraud Act (CFA),
N.J.S.A. 56:8-1 to 56:8-206. She also appeals from the
February 19, 2016 order granting summary judgment to Wells
Fargo on the remaining claims in her complaint.
related foreclosure action, in opposition to a motion for
possession of the property after the sheriff's sale,
plaintiff for the first time raised the issue that a loan
modification had been granted. Her belated application was
denied and possession granted to Wells Fargo in the
filed her Law Division complaint after final judgment was
entered in the foreclosure case, but before opposing the
motion for possession and before dismissing her appeal of the
foreclosure case. In this civil complaint she alleged that
Wells Fargo pursued a final foreclosure judgment in spite of
having modified her husband's mortgage on the home during
the pendency of the foreclosure case. Plaintiff could have
pursued her appeal of the denial of this germane claim in the
foreclosure litigation rather than raising the same issue in
other litigation. Because plaintiff attempted to litigate the
same issue in two forums, we affirm the grant of summary
Wells Fargo made a $330, 890 loan to Norman on May 18, 2006,
securing his promissory note with a mortgage on his Freehold
property. More than eighteen months later, Norman married
plaintiff. The loan went into default on January 1, 2009. Six
months later, Wells Fargo filed a foreclosure complaint.
Norman offered no defense, and default was entered in
months later, Norman began submitting financial documents to
Wells Fargo seeking a loan modification. In April 2010, Wells
Fargo sent Norman a letter requesting an initial payment of
$4500, stating "[i]f you are not approved for a loan
modification, the initial payment will be returned to
you." Norman made that payment, which was never
returned. The following month, Wells Fargo sent Norman loan
modification agreement documents. Norman signed the documents
in May 2010. Although a representative of Wells Fargo also
signed the loan modification, Wells Fargo never sent the
signed document to Norman. The loan modification documents
disclosed that a title report might be required to validate
that the mortgage would remain in first lien priority. The
first $3110.25 payment under the loan modification was due
July 1, 2010.
2, 2010, Norman called Wells Fargo to say he could not make
the first payment under the loan modification due to
"curtailment of income." Wells Fargo called Norman
on July 13, 2010, to explain that it could not go forward
with the modification because the title search disclosed five
judgment liens on the property. Norman claimed those
judgments had been satisfied.
December 14, 2010, months after plaintiff claims the loan
modification was finalized, a final foreclosure judgment in
the amount of $361, 251.77 was entered. Although represented
by counsel, Norman did not object to the entry of final
judgment, nor did he seek to vacate the final judgment.
Instead, more than six months later, on June 30, 2011, Norman
and plaintiff filed this action in the Law Division. Almost a
year later, in May 2012, the property was sold at a
sheriff's sale. Nine months later, Wells Fargo filed a
motion for possession of the property in the foreclosure
action. Norman opposed the motion for possession, belatedly
arguing that the existence of the 2010 loan modification
cured the default. The court granted Wells Fargo's motion
for possession on October 25, 2013.
February 2014, the Adelmans filed an order to show cause in
the foreclosure action, seeking to recuse the Chancery judge
and to stay eviction. The Adelmans argued again that the
default was cured by the loan modification. The judge refused
to recuse herself, but stayed the eviction due to
Norman's ill health. Plaintiff filed an appeal in the
foreclosure action in April 2014. A ...