Opinion
DOCKET NO. A-4364-09T4
01-30-2013
U.S. BANK NATIONAL ASSOCIATION as TRUSTEE, Plaintiff-Respondent, v. PATRICK PLASKON; MRS. PATRICK PLASKON, his wife; Defendant-Appellant, and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., as a nominee for EQUIFIRST CORPORATION its successors and assigns, Defendant.
Vladimir Palma argued the cause for respondent U.S. Bank National Association as Trustee (Phelan, Hallinan & Schmieg, PC, attorneys; Mr. Palma, on the brief). John M. McKenna argued the cause for respondent CCM Fund I LLC (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys; Mr. McKenna, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-3245-08.
Robert J. Ferb argued the cause for appellant.
Vladimir Palma argued the cause for respondent U.S. Bank National Association as Trustee (Phelan, Hallinan & Schmieg, PC, attorneys; Mr. Palma, on the brief).
John M. McKenna argued the cause for respondent CCM Fund I LLC (Hack, Piro, O'Day, Merklinger, Wallace & McKenna, attorneys; Mr. McKenna, on the brief). PER CURIAM
Defendant Patrick Plaskon appeals from an April 8, 2010 Chancery Division order confirming the sheriff's sale on his property. Defendant argues the foreclosing mortgagee did not mediate in good faith and the equities favored his rights over the third-party purchaser. Based on our review of the record and applicable law, neither argument is persuasive. Accordingly, we affirm.
The relevant facts are not in dispute. In October 2005, defendant executed a note and mortgage to EquiFirst Corp. on his property in Bridgewater to secure payment of a $259,200 loan. Defendant defaulted on May 1, 2007. The note and mortgage were assigned to plaintiff, U.S. Bank National Association as Trustee, who filed a foreclosure complaint on January 23, 2008. Defendant failed to file an answer or otherwise defend, so plaintiff filed for the entry of default on September 8, 2008, and obtained a final judgment of foreclosure on October 24, 2008.
Sheriff sales were scheduled and adjourned multiple times by both parties. On August 24, 2009, defendant made an emergency application to stay the September 1 sheriff's sale and to participate in the state-sponsored mediation program. The court stayed the sale until October 6, and the parties participated in mediation on the scheduled date of September 24. Defendant submitted documents, which plaintiff received and reviewed the morning of October 6, and determined defendant did not qualify for any alternatives to the foreclosure. Accordingly, plaintiff proceeded with the foreclosure that afternoon, and the property was sold to an independent third party, CCM Fund I LLC (CCM) for the sum of $175,000.
On October 9, 2009, defendant filed a pro se motion to vacate the sheriff's sale, which was opposed by plaintiff. Following oral argument on November 20, Judge Allison E. Accurso declined to vacate the sale; instead, she extended the redemption period to permit defendant another opportunity to mediate, so if the loan could be modified, the sale would be set aside and CCM would be compensated for its costs. The judge also declined to permit the order to contain a self-executing provision confirming the sale in the event the mediation did not result in modification, but required the parties to provide her with a report from the mediation, and she would decide whether to confirm or vacate the sale.
The judge directed plaintiff's attorney to prepare an order; however, neither parties' appendix contains a copy. Our recitation of the ruling comes from the transcript and is consistent with the parties' briefs.
The parties participated in mediation on December 17, 2009. After review of all financial documentation provided by defendant, plaintiff again denied him any foreclosure workout agreement as no substantial factors in defendant's financial position had changed since the prior review.
Plaintiff filed a motion to confirm its sale, joined in by CCM, returnable on April 1, 2010. Plaintiff submitted a brief, certification of its attorney reciting the procedural history, and attached the underlying documents supporting the judgment. It also attached a certification of Jeffrey Stephan, a representative of GMAC Mortgage, the servicer for plaintiff, who explained the reason for the denial of the loan modification to defendant as follows:
2. In preparation for the December 17, 2009 mediation, Defendant was reviewed for a loan modification and denied for the following reasons:Defendant opposed the motion.
a. Defendant was given loss mitigation workout opportunities on March 30, 2009, April 17, 2009, June 5, 2009, July 13, 2009 and September 15, 2009 which included but is not limited to forbearance plans, repayment plans and trial modifications. Defendant failed all of the offered plans by either declining to accept the offer or failing to remit payment.
b. Each of GMAC's workout attempts included pre-qualification under the Home Affordable Mortgage Program [HAMP] which failed the front-end ratio test required under the program.
c. Pursuant to the Court's order Defendant was re-reviewed based on current proof of income submitted by the Defendant for the December 17, 2009 mediation. After reviewing the information provided, Defendant failed to meet any of the qualifications for a workout opportunity. Therefore, the business decision was made that Defendant was denied.
By order of April 8, 2010, Judge Accurso confirmed the sale and directed the sheriff to deliver a deed to CCM upon payment of the balance due on its bid. Included in the statement of reasons was the following:
[Defendant] contends that Plaintiff had no incentive to modify his loan & all the "leverage" in mediation as the property had already been purchased by a 3rd party. [Defendant] however, makes no response to the certification of Mr. Stephan. As I can find no bad faith on the part of the plaintiff in participating in mediation & not offering Defendant a loan modification, the motion to confirm the sale (without interest to the bidder) is granted.
This appeal ensued. In response to concerns about the validity of various documents as a result of robo-signing, plaintiff moved before us to stay our proceedings and remand the matter to Judge Accurso, which we granted by order of October 19, 2010. After further review of certifications, documents, and argument, Judge Accurso entered an order and statement of reasons on July 18, 2010, resolving plaintiff's concerns and finding the facts on which she relied on in entering the uncontested final judgment and in confirming the sheriff's sale "are consistent with GMAC's business records." Defendant vacated the property on July 7, 2010, and CCM re-sold the property.
On appeal, defendant argues the facts of the case show a "complete lack of good faith" by plaintiff "because the criteria upon which [defendant] was denied modification in the December mediation was the same information which [p]laintiff had when it offered [defendant] a work out plan on October 5th," plaintiff did not quantify the reasons for deeming him unsuitable for any modification or workout, and at the final mediation plaintiff merely rejected defendant's request for accommodation "to protect itself from the consequences of [its] failure to abide by its agreement to adjourn the sale as agreed in the September Foreclosure Mediation Settlement Memorandum."
Defendant requests we perform an analysis of the mediation process as was done in U.S. Bank National Assoc. v. Williams, 415 N.J. Super. 358, 372-73 (App. Div. 2010), and determine "on an objective and independent basis whether or not criteria are being applied fairly and appropriately," so we can conclude if the mediation was conducted "in good faith." Defendant also argues the equities favor him, not CCM, the third-party purchaser.
We note that Judge Accurso gave every accommodation to defendant in November 2009, despite his default on the underlying obligation, failure to defend the foreclosure action, and failure to move to vacate the final judgment entered in October 2008. Having recognized the parties' differing positions regarding their communications and the vague language in the affidavits respecting the continuation of the October sheriff's sale, the Chancery judge balanced the equities and gave defendant another chance at mediation and an opportunity to be heard in opposition to a subsequent motion by plaintiff to confirm the sale if mediation were unsuccessful. As pointed out in the April 8, 2010 statement of reasons, however, defendant filed no response to Stephan's certification in which he disputed plaintiff's reasons for denying the loan modification.
Defendant squandered the opportunity to challenge plaintiff's assessment of his finances or present evidence to the Chancery judge that he did, in fact, have a sufficient contribution to a workout agreement and a low debt to income ratio to qualify for a loan modification. In other words, defendant provided no competent, credible evidence of bad faith for the Chancery judge to review. No equities favored defendant under the circumstances. The order confirming the sale was well within Judge Accurso's discretion. See Williams, supra, 415 N.J. Super. at 365 (reiterating that we do not second-guess a discretionary order of the Chancery court pertaining to a sheriff's sale following foreclosure unless there is a manifest denial of justice)(citations omitted)).
We review the record presented to the trial court, R. 2:5-4, and decline to consider "questions or issues not properly presented to the trial court . . . unless the questions so raised on appeal go to the jurisdiction of the trial court or concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (internal quotation marks omitted). We are satisfied neither exception applies here and discern no basis to conduct a review of defendant's finances. Plaintiff participated in several mediations with defendant over a year after entry of the default foreclosure judgment. Plaintiff clearly had a degree of leverage, but defendant presented no evidence that plaintiff failed to assess his financial disclosures in good faith.
Similar to the defendant in Williams, at the point of mediation, defendant's "options were limited"; he had not paid his mortgage for several years, a final judgment of foreclosure with an award of attorney's fees and costs had already been entered, and he did not qualify under the requisite front-end debt ratio test for HAMP. In addition, an independent third-party purchaser bought the property at sheriff's sale. Thus, defendant presented no factual or legal obstruction to confirmation of the sale.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION