BMW FINANCIAL SERVICES NA, LLC VS. DONALD PLOETNERÂ VS. BMW OF NORTH AMERICA, LLC(F-32595-09, MORRIS COUNTY AND STATEWIDE)
A-1671-14T4
| N.J. Super. Ct. App. Div. | Jul 25, 2017|
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1671-14T4
BMW FINANCIAL SERVICES NA, LLC,
Plaintiff-Respondent,
v.
DONALD PLOETNER and MADELINE
PLOETNER,
Defendants-Appellants,
and
PEOPLE OF THE STATE OF NEW
JERSEY, NEW JERSEY DEPARTMENT
OF TAXATION AND FINANCE,
Defendants,
and
DONALD PLOETNER and MADELINE
PLOETNER,
Third-Party
Plaintiffs-Appellants,
v.
BMW OF NORTH AMERICA, LLC,
Third-Party
Defendant-Respondent.
___________________________________
Argued on September 20, 2016 – Decided July 25, 2017
Before Judges Fisher, Ostrer and Leone.
On appeal from the Superior Court of New
Jersey, Chancery Division, Morris County,
Docket No. F-32595-09.
Robyne D. LaGrotta argued the cause or
appellants.
Joann Sternheimer argued the cause for
respondent BMW Financial Services NA, LLC
(Deily & Glastetter, LLP, attorneys; Ms.
Sternheimer, on the brief).
John R. Skelton (Seyfarth Shaw LLP) of the
Massachusetts bar, admitted pro hac vice,
argued the cause for respondent BMW of North
America, LLC (Seyfarth Shaw LLP, attorneys;
Ardrelle Bahar and Mr. Skelton, on the brief).
PER CURIAM
Defendants Donald and Madeline Ploetner1 appeal from a final
judgment of foreclosure and interlocutory orders that: dismissed
their counterclaim against their lender, plaintiff, BMW Financial
Services NA, LLC (BMW Financial); dismissed their third-party
complaint against BMW of North America, LLC (BMW NA), which
franchised a BMW dealership to a corporation the Ploetners
controlled; and granted summary judgment. The trial court held
that the Ploetners' affirmative claims were derivative of claims
that belonged to their two bankrupt business entities — Towne,
1
We were informed at oral argument that Donald Ploetner is
deceased.
2 A-1671-14T4
Inc. (Towne), which operated a BMW automobile dealership in Oyster
Bay, New York, and DMD Towne, LLC (DMD), which owned the
dealership's realty. Towne and DMD released their claims against
BMW Financial and BMW NA (the BMW entities) pursuant to a 2010
Bankruptcy Court order and release agreements between the
bankruptcy trustee and the BMW entities (Trustee Releases). The
Ploetners and their businesses also released claims against BMW
Financial under an earlier Forbearance Agreement. Consequently,
the court held that the Ploetners' affirmative claims were barred.
As they raised no other personal defenses or claims in response
to the foreclosure action, the court granted BMW Financial summary
judgment and, ultimately, a final judgment of foreclosure.
On appeal, the Ploetners challenge the validity of the
Forbearance Agreement and the Trustee Releases. They argue the
former lacks consideration and is illusory and the latter violates
federal bankruptcy law. We reject those arguments and affirm.
I.
The Ploetners purchased and operated a BMW dealership in
Oyster Bay. In order to do so, the Ploetners and their businesses
(the borrowers) entered into various credit and guarantee
agreements with BMW Financial. Among the loans obtained, the
Ploetners personally borrowed $848,000 and $948,000 from BMW
3 A-1671-14T4
Financial. The loans were secured by mortgages on two reportedly
undeveloped parcels in Harding Township (New Jersey Mortgages).
Less than three years after they acquired the dealership, the
borrowers defaulted on the inventory finance agreement that
enabled Towne to obtain vehicles on credit, but obliged it to
repay BMW shortly after a vehicle's sale. Rather than resort to
its post-default remedies, BMW Financial, pursuant to the
Forbearance Agreement, offered to refrain from exercising its
rights and remedies and to permit the borrowers to delay certain
payments. At that time, the borrowers owed BMW Financial almost
$10 million under the various loans. The Forbearance Agreement
was "intended to provide Borrower a series of weekly periods to
develop and execute a business turnaround plan designed to address
capitalization and cash flow issues" and take other steps. The
Forbearance Agreement terminated upon the earlier of: a default
of the Forbearance Agreement; at the end of the forbearance period,
November 3, 2008; or BMW Financial's "determin[ation] in its
discretion that Borrower [was] not making sufficient progress to
satisfactorily address the capitalization and cash flow issues."
The Forbearance Agreement was to be construed according to Ohio
law.
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As consideration for BMW Financial's forbearance, the
Ploetners and their business entities broadly released claims they
had or might have against BMW Financial:
Each Obligor acknowledges and agrees that: (a)
such Obligor has no claim or cause of action
against Lender (or any of Lender's directors,
officers, employees, or agents); (b) such
Obligor has no offset right, counterclaim, or
defense of any kind against any of the
Obligations; and (c) Lender has heretofore
properly performed and satisfied in a timely
manner all of Lender's obligations to each
Obligor. Lender wishes, and each Obligor
agrees, to eliminate any possibility that any
past conditions, acts, omissions, events,
circumstances, or matters would impair or
otherwise adversely affect any of Lender's
rights, interests, collateral security, or
remedies. In consideration of, among other
things, the forbearance provided for herein,
and any other financial accommodations which
Lender elects to extend to Obligors, each
Obligor forever waives, releases and
discharges any and all claims (including,
without limitation, cross-claims,
counterclaims, rights of setoff and
recoupment), causes of action, demands, suits,
costs, expenses and damages that it now has
or hereafter may have, of whatsoever nature
and kind, whether known or unknown, whether
now existing or hereafter arising, whether
arising at law or in equity that arise under
or relate to any of the Loan Documents or this
Agreement (collectively, "Claims"), against
Lender, or any of its subsidiaries and
affiliates, and its and their respective
successors, assigns, officers, directors,
employees, agents, attorneys and other
representatives, based in whole or in part on
facts, whether or not known, existing on or
prior to the date of this Agreement. As
further consideration for the above release,
Borrowers hereby agree, represent, and warrant
5 A-1671-14T4
that the matters released herein are not
limited to matters which are known or
disclosed, and Borrowers hereby waive any and
all rights and benefits which it now has, or
in the future may have. The provisions of
this section shall survive the termination of
this Agreement, the Loan Documents and payment
in full of the Obligations.
The Forbearance Agreement recited that it was "dated as of
October ___, 2008[,]" but the precise date was left blank. The
Ploetners admit they signed the agreement. There is no competent
evidence that BMW Financial's representatives did so as well.2
Yet, the Ploetners do not dispute there was a period of
forbearance. It was short-lived, however. According to Ms.
Ploetner, the forbearance expired after ten days. BMW Financial
alleged it offered to extend the Forbearance Agreement for another
forbearance period, but the Ploetners' refused.
In December 2008, BMW Financial sued Towne, DMD, and the
Ploetners in New York state court to enforce its rights under loan
agreements other than the New Jersey mortgage notes. Thereafter,
Towne, with DMD following closely behind, sought protection under
2
At a 2012 deposition, Ms. Ploetner acknowledged that she and her
husband had signed the agreement, but her counsel noted that the
copy with which she was confronted did not contain BMW Financial
signatures. At oral argument before us, BMW Financial's counsel
presented to the court a copy of a completely signed agreement,
which counsel had provided to the Ploetners' counsel only the day
before. The document was unaccompanied by a certification of a
person with personal knowledge to authenticate it or to specify
when the BMW Financial representatives actually signed it.
6 A-1671-14T4
Chapter 11 of the Bankruptcy Code. Towne filed an adversary
proceeding against the BMW entities, alleging various wrongs in
connection with the purchase and operation of the dealership, but
voluntarily dismissed it within a month.3 The Bankruptcy Court
vacated the automatic stay to permit BMW Financial to foreclose
on the dealership and to replevy collateral. The Ploetners were
unable to secure BMW Financial's consent to sell the dealership
for an amount less than its outstanding debt.
The Bankruptcy Court eventually converted the Chapter 11
proceeding into a Chapter 7 proceeding, and a bankruptcy trustee
assumed decision-making authority. In January 2010, the
Bankruptcy Court authorized the trustee to sell the dealership's
assets and to release BMW Financial and BMW NA of any claims Towne
or DMD had against them. The trustee then executed the Trustee
Releases, covering claims against the two BMW entities, "on behalf
of Towne and DMD and their[] directors, officers, employees,
managers, agents, attorneys, or other representatives, and to the
extent their claims are derivative of the claims of Towne and/or
DMD, Towne's and DMD's members, stockholders, or principals
. . . ." The release of BMW NA covered all current and future
claims, including those:
3
Few of the Bankruptcy Court filings are included in the record
before us. We rely on the parties' representations about the
nature of the filings.
7 A-1671-14T4
arising out of or relating to (i) the Dealer
Agreements or the operation of Towne as an
authorized BMW NA dealership; (ii) any claims
based on the factual allegations made by Towne
in the Adversary Proceeding including, as
alleged therein, any claims based on the
acquisition of the Towne Dealership Assets or
the Dealership Property; BMW NA's review and
approval of the acquisition of the Town
dealership; the allocation and sale of vehicle
inventory by BMW NA to Towne; any effort by
Towne to sell its dealership; or BMW NA's AVP
or CPO programs; and (iii) any claims asserted
or which could have been asserted in the State
Court Action.
The release of BMW Financial covered all current and future claims,
including those:
arising out of or relating to (i) Loan
Documents and any related documents; (ii) any
claims based on the factual allegations made
by Towne in the Adversary Proceeding
including, as alleged therein, any claims
based on the acquisition of the Towne
Dealership Assets or the Dealership Property;
any effort by Towne and/or DMD to sell their
assets; BMW [Financial]'s consent to the sale;
and (iii) any claims asserted or which could
have been asserted in the Replevin Action
and/or the Foreclosure Action.
Both agreements stated that the releases were "intended to be
general and absolute and relieve the . . . releasees from any
possible claim by or liability that might conceivably exist arising
from or relating to matters prior to the date of this release."
(All caps removed). The Ploetners did not challenge the Trustee
Releases before the Bankruptcy Court.
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While the bankruptcy case was proceeding, BMW Financial filed
this action to foreclose on the New Jersey Mortgages. In an
amended answer in March 2010, the Ploetners asserted a five-count
counterclaim against BMW Financial and a third-party complaint
against BMW NA. In the first two counts, the Ploetners alleged
that the BMW entities, in violation of the New York Franchised
Motor Vehicle Dealer Act, constructively terminated their
franchise by suspending its agreement to purchase new motor vehicle
inventory and imposing onerous requirements upon the dealership
(count one), and interfered with their ability to sell the
dealership upon favorable terms (count two). In the remaining
counts, the Ploetners also alleged the BMW entities: violated the
New Jersey Franchise Practices Act (count three); tortiously
interfered with Towne's business relations and the Ploetners'
reasonable economic expectations (count four); and breached the
duty of good faith and fair dealing owed to Towne and the Ploetners
(count five).
The case then took a detour to Bankruptcy Court when BMW NA
removed the third-party complaint. But that court later remanded
the case back. In support of remand, the Ploetners had argued
they were asserting claims personal to them and independent of
Towne. Their counsel wrote, "The Ploetners are not pursuing claims
9 A-1671-14T4
which belonged to, were released by, or are derivative to Towne,
Inc."
A year later, BMW Financial and BMW NA filed motions for
"judgment on the pleadings" to dismiss the counterclaim and third-
party complaint. BMW Financial expressly requested, in the
alternative, entry of summary judgment. The BMW entities provided
the court with the Forbearance Agreement and the Trustee Releases.
In opposition, the Ploetners contended they had not failed
to state a claim under Rule 4:6-2; the motion to dismiss relied
on extrinsic materials; and summary judgment was premature, as no
discovery had occurred. With respect to the Trustee Releases, the
Ploetners again argued they were seeking redress for harm done to
them personally. Citing Strasenburgh v. Straubmuller, 146 N.J.
527, 550-51 (1996), they argued they suffered "special injury,"
not suffered by shareholders generally, which fell outside claims
of the business entities the trustee released. At oral argument,
counsel reiterated, "I wouldn't be here if I believed that we
could pursue the claims of Town[e], Inc. We're not, [and] we
don't intend to[.]" In reference to his prematurity argument, he
argued, "[W]e should be able to examine the validity of the
[Forbearance] [A]greement." However, counsel did not actually
challenge the Agreement's validity.
10 A-1671-14T4
The court granted "judgment on the pleadings" dismissing the
counterclaims and third-party complaint. In an oral decision
entered September 9, 2011, the judge stated the claims belonged
to the Ploetners' business entities, which the trustee released.
The court rejected the Ploetners' prematurity argument, concluding
no discovery would affect the Trustee Releases' validity and their
impact on the business entities' claims. The Ploetners' counsel
asked for leave to amend — presumably to assert claims other than
those found to be derivative of the businesses. The court allowed
the Ploetners to move to amend, but they never did.
Over a year-and-a-half later, BMW Financial filed a motion
for summary judgment entitling it to foreclose on the Harding
Township properties. By then pro se, the Ploetners opposed the
motion and filed a cross-motion seeking various forms of relief.
Most pertinent to this appeal, they asked the court to vacate its
previous order. They certified they were duped into signing the
Forbearance Agreement by their attorney, and that they would never
have knowingly exchanged the release in return "for being permitted
to remain in business approximately an additional ten (10) days[.]"
They contended the business entities' counsel disserved them,
ultimately resulting in the loss of their dealership and
investment.
11 A-1671-14T4
On September 30, 2013, the court granted BMW Financial's
motion. In a written statement of reasons, the court noted that
the only defense to foreclosure consisted of the Ploetners'
allegation that BMW NA had engaged in various wrongs that forced
the dealership into bankruptcy. The court concluded that both the
Forbearance Agreement and Trustee Releases barred those claims,
and the foreclosure matter was therefore deemed uncontested.4
The Ploetners subsequently sought clarification of the
court's order, as well as a stay, which the court denied. In the
course of oral argument, Ms. Ploetner asserted for the first time
that the Forbearance Agreement was invalid because BMW Financial
did not sign it. The court rejected the argument on the grounds
that BMW Financial had performed.
Thereafter, BMW Financial moved for final judgment of
foreclosure, which the court granted on October 28, 2014. This
appeal followed. The Ploetners, now represented by counsel,
present the following points for our consideration:
POINT I
THE FINAL JUDGMENT FOR FORECLOSURE DATED OCTOBER 28, 2014
SHOULD BE VACATED AS IT WAS PREMISED ON AN ORDER GRANTING
SUMMARY JUDGMENT ON SEPTEMBER 30, 2013.
4
In another appearance, in which the Ploetners sought to hasten
the filing of the foreclosure judgment to pave the way for an
appeal, Ms. Ploetner contended orally for the first time that BMW
Financial failed to perform as promised under the Forbearance
Agreement. That argument has not been renewed on appeal.
12 A-1671-14T4
A. THE ORDER FOR SUMMARY JUDGMENT DATED SEPTEMBER 30,
2013 SHOULD BE VACATED AS IT WAS PREMISED ON AN INVALID
FORBEARANCE AGREEMENT.
B. THE ORDER FOR SUMMARY JUDGMENT DATED SEPTEMBER 30,
2013 SHOULD BE VACATED AS IT WAS PREMISED ON AN INVALID
RELEASE SIGNED BY THE BANKRUPTCY TRUSTEE.
POINT II
THE ORDER DISMISSING THE COUNTERCLAIM AND THIRD PARTY
COMPLAINT DATED SEPTEMBER 9, 2011 MUST BE VACATED.
II.
The Ploetners challenge the validity of the Forbearance
Agreement and the Trustee Releases, contending they are the
linchpins of the order granting summary judgment on September 30,
2013, which in turn cleared the way for entry of a final judgment
of foreclosure. They also challenge the September 9, 2011 order
dismissing their counterclaim and third-party complaint. Their
arguments lack merit.
At the outset, we reject the BMW entities' argument that we
should decline to even consider the Ploetners' challenge to the
September 30, 2013 and September 9, 2011 orders because they did
not identify them in their notice of appeal. The BMW entities do
not contend they are prejudiced by the Ploetners' omission. We
are mindful that the Ploetners' pro se notice of appeal and case
information statement identified the October 28, 2014 judgment as
the only judgment, decision or order being appealed. See Rule
2:5-1(f)(3)(A) (stating that a notice of appeal "shall designate
13 A-1671-14T4
the judgment, decision, action or rule, or part thereof appealed
from"); Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461- 62 (App. Div.) (stating that appellate review pertains only to judgments or orders specified in the notice of appeal), certif. denied,174 N.J. 544
(2002). But the case information statement
included an extensive statement of facts and procedural history
that identified the September 9, 2011 and September 30, 2013
orders. Moreover, in their description of proposed issues to be
raised on appeal, the Ploetners challenged the validity of the
Forbearance Agreement and contended the Trustee Releases were a
product of improper actions. We therefore choose to address the
merits of the appeal.5
We review the trial court's 2011 and 2013 orders de novo,
applying the same standard as the trial court. Henry v. N.J.
Dep't of Human Servs., 204 N.J. 320, 330 (2010) (summary judgment); Rezem Family Assocs. v. Borough of Millstone,423 N.J. Super. 103
, 113-14 (App. Div.) (motion to dismiss), certif. denied,208 N.J. 366
(2011). With respect to a summary judgment motion, "the 5 We also recognize that the Ploetners did not timely challenge the validity or enforceability of the Forbearance Agreement and Trustee Releases before the trial court. They opted instead to contend that the Trustee Releases did not bar claims of special damages or other claims personal to the Ploetners, as distinct from their entities. Although we are not required to consider the validity and enforceability arguments as they were not raised below, see Nieder v. Royal Indem. Ins. Co.,62 N.J. 229
, 234
(1973), we choose to do so.
14 A-1671-14T4
appellate court should first decide whether there was a genuine
issue of material fact, and if none exists, then decide whether
the trial court's ruling on the law was correct." Henry, supra, 204 N.J. at 330. Where a "complaint states no basis for relief and . . . discovery would not provide one, dismissal of the complaint [under Rule 4:6-2] is appropriate." Cnty. of Warren v. State,409 N.J. Super. 495
, 503 (App. Div. 2009), certif. denied,201 N.J. 153
, cert. denied,561 U.S. 1026
,130 S. Ct. 3508
,177 L. Ed. 2d 1092
(2010).
The Ploetners argue the Forbearance Agreement is invalid
because it lacked consideration. Ohio courts have adopted the
principle that "[f]orbearance from exercising a right or doing an
act which one has a right to do is legal consideration." HomEq
Servicing Corp. v. Schwamberger, 4th Dist. Scioto No. 07CA3146,
2008-Ohio-2478, ¶ 19 (quoting 3 Williston on Contracts § 7:43, at
677 (Lord ed., 4th ed. 1992) in enforcing forbearance agreement
between mortgagee and defaulting mortgagor), aff'd, 908 N.E.2d 423
(Ohio 2009). However, the Ploetners contend they were not bound
because no one signed the agreement on behalf of BMW Financial.
They further argue BMW Financial's promise to forbear was illusory
because it retained the discretion to terminate the forbearance
term.
15 A-1671-14T4
Both arguments are unavailing. Unless parties have specified
that an agreement must be signed, a signature of a contracting
party is not essential to create an enforceable contract, provided
assent is demonstrated through other means. See Richard A.
Berjian, D.O. v. Ohio Bell Tel. Co., 375 N.E.2d 410, 413-14 (Ohio 1978) (enforcing a contract though one party did not sign it in the space provided, stating, "[s]ignature spaces in the form contract do not in and of themselves require that the signatures of the parties are a condition precedent to the agreement's enforceability"); see also Bruzzese v. Chesapeake Exploration, LLC,998 F. Supp. 2d 663
, 674-75 (S.D. Ohio 2014).
Assent can be demonstrated by performance. Hocking Valley
Cmty. Hosp. v. Cmty. Health Plan of Ohio, 4th Dist. Hocking No.
02CA28, 2003-Ohio-4243, ¶ 16 ("Performance can substitute for
execution of a written contract against the party who did not
execute the contract . . . as well as against the party who
executed the contract[.]"). In this case, there is no dispute
that BMW Financial did perform, at least for ten days, forbearing
from exercising the various remedies at its disposal based on the
Ploetners' default.
Nor was BMW Financial's promise to forbear illusory because
it retained the right to terminate the Forbearance Agreement if
it "determine[d] in its discretion that Borrower [was] not making
16 A-1671-14T4
sufficient progress to satisfactorily address the capitalization
and cash flow issues." BMW Financial did not retain an "unlimited
right to determine the nature or extent of [its] performance,"
which would "destroy[] [its] promise and thus make[] it merely
illusory." Bruzzese, supra, 998 F. Supp. 2d at 672 (quoting Domestic Linen Supply & Laundry Co. v. Kenwood Dealer Grp., Inc.,672 N.E.2d 184
, 186 (Ohio Ct. App.), cause dismissed,663 N.E.2d 327
(Ohio 1996)); see also Atkinson v. Akron Bd. of Educ., 9th Dist. Summit No. 22805, 2006-Ohio-1032, ¶ 16. Although it retained discretion, BMW Financial's termination right was tied to the borrowers' progress, which was subject to detailed standards in the agreement. SeeBruzzese, supra
, 998 F. Supp. 2d at 672 (rejecting claim contract was illusory because it "provided standards by which Chesapeake was to determine whether land was acceptable for leasing"). Furthermore, BMW Financial was bound to exercise its termination authority in good faith. Seeibid. (noting that Chesapeake
could not utilize its discretionary
determination whether title was marketable in bad faith).
The Ploetners' challenge to the Trustee Releases fares no
better. The proper forum for the Ploetners' challenge was in the
Bankruptcy Court, and if unsuccessful, the United States District
Court and the United States Court of Appeals. "[T]he proper medium
for a challenge to the original bankruptcy court's order is through
17 A-1671-14T4
a direct challenge of that order. The collateral attacks brought
later are barred by res judicata." Hendrick v. Avent, 891 F.2d
583, 587 (5th Cir.) (rejecting collateral attack of bankruptcy court order for the sale of debtor's stock), cert. denied,498 U.S. 819
,111 S. Ct. 64
,112 L. Ed. 2d 39
(1990). The Bankruptcy Court order authorizing the sale of the dealership and the release of the BMW entities, is res judicata, as the Towne entities participated in the bankruptcy. See Regions Bank v. J.R. Oil Co.,387 F.3d 721
, 731 (8th Cir. 2004).6
Furthermore, the legal basis for the Ploetners' contention
that the trustee lacked the authority to enter the releases is
unavailing. The trustee did not release claims of the Ploetners.
Thus, their reliance on In re Central Ill. Energy, LLC, 406 B.R.
371 (Bankr. C.D. Ill. 2008) is misplaced. The Ploetners also can 6 We note that the Ploetners have taken a position that they assiduously avoided before the Bankruptcy Court. After BMW NA removed the third-party complaint to Bankruptcy Court, the Ploetners sought a remand. Their attorney contended not that the Trustee Releases were invalid — an issue for the Bankruptcy Court — but that the Ploetners alleged personal claims outside the scope of the Trustee Releases — an issue for the state court. A remand followed. However, we decline to find they are judicially estopped from arguing the Trustee Releases were unenforceable. To apply the doctrine the proponent must establish that "a party . . . [has] advance[d] a position in earlier litigation that is accepted and permit[ted] the party to prevail in that litigation . . . ." Bhagat v. Bhagat,217 N.J. 22
, 36 (2014). Although the Ploetners
prevailed in their effort to secure a remand, the record simply
does not reflect whether the court accepted the Ploetners'
argument, as opposed to some other grounds for remand.
18 A-1671-14T4
find no support from In re Continental Airlines, 203 F.3d 203 (3d
Cir. 2000), which they cite, as that case addresses the discharge
of non-debtors, not a release of rights of the debtors.
In sum, the Forbearance Agreement and the Trustee Releases
were valid and enforceable. The Ploetners' affirmative claims
were repackaged claims of their business entities, which were
released in the Trustee Releases (as pertained to both BMW
entities) and in the Forbearance Agreement (as pertained to BMW
Financial). Furthermore, the Ploetners released claims personal
to them against BMW Financial in the Forbearance Agreement. As
they raised no other genuine defenses to the foreclosure, the
court correctly granted summary judgment and entered final
judgment of foreclosure.
To the extent not addressed, the Ploetners' remaining
arguments lack sufficient merit to warrant discussion. R. 2:11-
3(e)(1)(E).
Affirmed.
19 A-1671-14T4