6 A.3d 481
N.J. Super. Ct. App. Div.2010Background
- Garner executed a $152,278 note to Aurora and a mortgage to MERS as Aurora’s nominee to secure payment on property in Pemberton, NJ, which was recorded.
- MERS assigned the note and mortgage to plaintiff three days before the foreclosure complaint (Sept. 8, 2008) alleging default beginning May 2008 and continuing thereafter.
- Garner answered pro se, contesting but not disputing the default, while raising statutory/enforcement challenges to the note’s validity.
- A General Equity judge granted summary judgment for plaintiff, struck Garner’s contesting answer, entered default, and treated the case as uncontested, returning it to Foreclosure for further action.
- Garner moved to vacate default (treated as reconsideration) and was denied; the appeal was dismissed as non-final, with instructions about contesting the amount due after a formal notice and motion for judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the order is interlocutory and not ordinarily appealable | plaintiff | Garner | Interlocutory orders not final; appeal not proper |
| Whether the amount due can be challenged before a final amount is set | plaintiff | Garner | Amount due determined in final judgment; challenge reserved until then |
| Whether the appeal should be dismissed for lack of finality and absence of stay | plaintiff | Garner | Appeal dismissed; final judgment to resolve amount due and entitlement to further review |
Key Cases Cited
- Eisen v. Kostakos, 116 N.J. Super. 358 (App. Div. 1971) (final judgment fixes amount due; interlocutory appeal not proper)
- Kostakos, 116 N.J. Super. 358 (App. Div. 1971) (partial summary judgment; final judgment necessary for appeal in foreclosure)
- Brundage v. Estate of Carambio, 195 N.J. 575 (2008) (interlocutory appeals granted only in interests of justice)
- State v. Reldan, 100 N.J. 187 (1985) (rare use of leave to appeal; standard is narrow)