STATE OF NEW JERSEY VS. DANIEL A. CATALANOÂ (15-02-0354, MONMOUTH COUNTY AND STATEWIDE)
A-2368-15T2
| N.J. Super. Ct. App. Div. | Jul 5, 2017Background
- Borrowers (Felicia Enuyokan and her late husband) executed a mortgage in 2003 and two loan modifications (2006 and 2011) on a residence in Orange, NJ.
- MERS was the original mortgagee; MERS assigned the mortgage to HSBC, recorded October 24, 2012.
- Borrowers defaulted on January 1, 2013; HSBC filed a foreclosure complaint on December 5, 2013.
- Enuyokan answered with affirmative defenses and counterclaims; later the parties entered a consent order (Sept. 2, 2014) deeming her answer non-contesting and dismissing her affirmative defenses and counterclaims with prejudice.
- HSBC agreed to consider a loan modification if Enuyokan applied by Sept. 15, 2014; she did not obtain a modification.
- A final judgment of foreclosure by default was entered Nov. 23, 2015; Enuyokan appealed asserting standing and breach of the covenant of good faith and fair dealing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HSBC had standing to foreclose | HSBC was assignee of mortgage (MERS assignment) and thus had standing | Enuyokan contends HSBC lacked standing to foreclose | Not reached on merits — appeal barred by consent order and waiver |
| Whether HSBC breached covenant of good faith in loan‑modification process | HSBC evaluated modification and delayed foreclosure per agreement; no actionable breach | Enuyokan alleges bad faith in modification dealings | Not reached on merits — claim dismissed by consent order and not litigated below |
| Whether Enuyokan may raise new issues on appeal | HSBC relies on the consent order and procedural rules barring belated challenges | Enuyokan raised standing and good‑faith arguments for the first time on appeal | Court declined to consider new arguments; affirmed final judgment |
Key Cases Cited
- New Jersey Schools Constr. Corp. v. Lopez, 412 N.J. Super. 298 (App. Div. 2010) (consent orders by parties are not appealable)
- Winberry v. Salisbury, 5 N.J. 240 (1950) (consented orders have preclusive effect)
- Zaman v. Felton, 219 N.J. 199 (2014) (appellate courts normally decline issues not raised below)
- Nieder v. Royal Indem. Ins. Co., 62 N.J. 229 (1973) (standard for raising new claims on appeal)
- Bank of New York v. Raftogianis, 418 N.J. Super. 323 (Ch. Div. 2010) (explanatory authority on MERS and mortgage transfers)