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, 2017|
Check Treatment NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2386-15T1
HSBC BANK, NATIONAL ASSOCIATION,
AS TRUSTEE FOR MASTR REPERFORMING
LOAN TRUST 2005-2,
Plaintiff-Respondent,
v.
RICHARD LAWRENCE, his heirs,
devisees, and personal
representatives and his/her,
their, or any of their successors
in right, title and interest,
Defendant,
and
FELICIA ENUYOKAN, his wife,
his heirs, devisees, and
personal representatives and
his/her, their, or any of their
successors in right, title and
interest,
Defendant-Appellant,
and
Furniture King, Inc., and Midland
Funding, LLC,
Defendants-Respondents.
___________________________________
Submitted April 24, 2017 – Decided May 2, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-045319-13.
Montell Figgins, attorney for appellant.
Reed Smith, LLP, attorneys for respondent HSBC
Bank (Henry F. Reichner, of counsel and on the
brief).
PER CURIAM
In this mortgage foreclosure matter, defendant Felicia
Enuyokan appeals from a final judgment of foreclosure entered by
default on November 23, 2015. We affirm.
We derive the following procedural history and facts from the
record. Defendant formerly held title to a residence in Orange.
On August 7, 2003, defendant and her now-deceased husband
(collectively "the borrowers") executed a note to Security
Atlantic Mortgage Co., Inc. ("Security") in the amount of $274,811.
To secure payment, the borrowers executed a mortgage encumbering
the residence in favor of Mortgage Electronic Registration Systems
("MERS"1), as nominee for Security. The mortgage was recorded
with the Essex County Clerk's Office on August 26, 2014.
1 Banks often sell mortgages to one another and, rather than
publicly recording the transfers at the county recorder of deeds,
they self-track the mortgage assignment through MERS. "MERS is a
private corporation which administers a national electronic
registry that tracks the transfer of ownership interests and
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On August 4, 2006, the borrowers entered into a loan
modification agreement, which increased the amount of the loan to
$279,950.78. On January 20, 2011, the borrowers executed a second
loan modification agreement. Under this agreement, the loan
principal was raised to $302,034.28, but the borrowers were able
to lower their yearly interest rate from 6.5% to 4.875%, thus
saving them approximately $230 a month.
On October 22, 2012, MERS assigned the mortgage to plaintiff
HSBC Bank, N.A. The assignment was recorded with the Essex County
Clerk's Office on October 24, 2012.
On January 1, 2013, the borrowers defaulted on the loan. On
December 5, 2013, plaintiff filed its foreclosure complaint.
Defendant filed an answer with affirmative defenses and
counterclaims on January 27, 2014.
On July 16, 2014, plaintiff filed a motion for summary
judgment, which defendant did not oppose. However, on September
2, 2014, the parties agreed to the entry of a consent order. Under
the terms of this order, defendant's answer was "deemed to be non-
contesting, and all [of her] affirmative defenses and/or claims
[were] voluntarily dismissed with prejudice[,]" together with her
counterclaims. The parties also agreed that the matter would be
servicing rights in mortgage loans." Bank of New York v.
Raftogianis, 418 N.J. Super. 323, 332 (Ch. Div. 2010).
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"returned to the Office of Foreclosure, where it shall proceed to
[j]udgment in an uncontested manner[.]"
In the interim, plaintiff agreed to evaluate defendant for a
modification of her loan, provided she filed the application no
later than September 15, 2014. Although plaintiff could not
guarantee that defendant would be able to qualify for a third loan
modification, it agreed to postpone seeking a final judgment of
foreclosure for ninety days.
Defendant did not secure a modification of the loan. On
October 20, 2015, plaintiff filed a motion for the entry of a
final judgment of foreclosure. On November 23, 2015, the Chancery
Division entered the final judgment by default in accordance with
the terms of the parties' consent order. This appeal followed.
On appeal, defendant contends for the first time that
plaintiff lacked standing to foreclose on the mortgage and that
plaintiff "violat[ed] the covenant of good faith and fair dealing"
during the loan modification process. We have considered
defendant's contentions in light of the record and applicable
legal principles and conclude that they are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). We add the following brief comments.
Here, default was entered against defendant by agreement of
the parties pursuant to the September 2, 2014 consent order. It
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is well established that "an order . . . consented to by the
attorneys for each party . . . is . . . not appealable." New
Jersey Schools Constr. Corp. v. Lopez, 412 N.J. Super. 298, 308 (App. Div. 2010) (quoting Winberry v. Salisbury,5 N.J. 240
, 255, cert. denied,340 U.S. 877
,71 S. Ct. 123
,95 L. Ed. 638
(1950)).
Because defendant consented to having her answer deemed
uncontested, with all of her affirmative defenses and
counterclaims voluntarily dismissed with prejudice, defendant is
barred from challenging the final judgment of foreclosure.
Just as importantly, defendant concedes in her reply brief
that the arguments she attempts to present on appeal "were not
raised at the trial level[.]" We will ordinarily decline
consideration of an issue not properly raised before the trial
court, unless the jurisdiction of the court is implicated or the
matter concerns an issue of great public importance. Zaman v.
Felton, 219 N.J. 199, 226-27 (2014) (citing Nieder v. Royal Indem. Ins. Co.,62 N.J. 229
, 234 (1973)). Neither situation exists here
and, because defendant did not contest plaintiff's standing to
foreclose or its compliance with the covenant of good faith and
fair dealing before the trial court, the record is plainly
insufficient to permit appellate review. Therefore, we decline
to consider these contentions for the first time on appeal.
Affirmed.
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