WELLS FARGO BANK, N.A. VS. NHIN DANG (F-014747-12, ATLANTIC COUNTY AND STATEWIDE)
A-5635-14T1
N.J. Super. Ct. App. Div.May 10, 2017Background
- Defendants borrowed $190,400 in 2007; mortgage named MERS as nominee; loan defaulted in June 2011.
- The note was endorsed to Wells Fargo, which mailed notices of intent to foreclose in July and December 2011; MERS assigned the mortgage to Wells Fargo in September 2011.
- Wells Fargo filed a foreclosure complaint in July 2012; defendants answered and asserted counterclaims, which were stricken and dismissed as unopposed.
- The foreclosure action was dismissed without prejudice for lack of prosecution under R. 4:64-8 in February 2014; the dismissal did not rest on any notice defect.
- Wells Fargo moved to reinstate in December 2014 (unopposed); the court reinstated the matter conditioned on moving for final judgment; Wells Fargo obtained a final judgment of foreclosure on June 4, 2015.
- Defendants appealed the final judgment, arguing Wells Fargo failed to comply with the Fair Foreclosure Act's notice requirement by not re-sending a 30‑day notice after the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wells Fargo was required to re-mail a 30‑day FFA notice after the foreclosure dismissal under R. 4:64-8 | Original 30‑day FFA notice satisfied statutory requirement; dismissal for lack of prosecution did not erase defendants' obligations or the prior notice | Dismissal without prejudice required Wells Fargo to give a new 30‑day notice before reinstating and pursuing foreclosure | Held: No new notice required. The initial FFA notice complied with N.J.S.A. 2A:50-56 and dismissal for lack of prosecution does not trigger a fresh notice requirement |
| Whether the appeal may properly challenge the earlier reinstatement and reconsideration orders | Plaintiff: appeal limited to orders identified in NOA | Defendants: sought review of reinstatement and reconsideration though NOA named only the final judgment | Held: Review limited to the June 4, 2015 final judgment because the civil case information statement did not clearly indicate appeal of earlier orders |
Key Cases Cited
- US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449 (2012) (describing FFA notice purpose: timely, clear notice to homeowners before foreclosure)
- EMC Mortg. Corp. v. Chaudri, 400 N.J. Super. 126 (App. Div. 2008) (dismissal without prejudice does not extinguish underlying contractual obligations or bar reinstitution)
- Woodward-Clyde Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464 (1987) (dismissal without prejudice preserves ability to reassert same claims)