PNC BANK, NATIONAL ASSOCIATION VS. YOEL OSHRI VS. MATTLEMAN, WEINROTH & MILLER PC (F-015407-14, OCEAN COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-5121-15T4
PNC BANK, NATIONAL
ASSOCIATION,
Plaintiff-Respondent,
v.
YOEL OSHRI, a/k/a JOEL
OSHRI,
Defendant/Third-Party
Plaintiff-Appellant,
and
HIGH POINT AT LAKEWOOD
CONDOMINIUM
ASSOCIATION INC.,
Defendant,
v.
MATTLEMAN, WEINROTH &
MILLER PC, MARTIN S.
WEINBERG, ESQ., and ALICIA M.
SANDOVAL, ESQ.,
Third-Party Defendants.
______________________________
Argued October 2, 2018 – Decided October 16, 2018
Before Judges Geiger and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. F-
015407-14.
Yoel Oshri, appellant, argued the cause pro se.
Robert W. Williams argued the cause for respondent
(Mattleman, Weinroth & Miller, PC, attorneys; Robert
W. Williams, of counsel and on the brief).
PER CURIAM
Defendant/third-party plaintiff Yoel Oshri appeals from a series of orders
and final judgment in this residential mortgage foreclosure action. Specifically,
he appeals orders: granting summary judgment to plaintiff PNC Bank, National
Association (PNC); striking defendant's answer and affirmative defenses;
entering default; returning the case to the Office of Foreclosure to proceed as an
uncontested matter; dismissing defendant's counterclaim and third-party
complaint; dismissing defendant's order to show cause with prejudice; denying
reconsideration; and the final judgment entered against him. For the reasons
that follow, we affirm.
On August 20, 2004, Oshri borrowed the sum of $65,000 from PNC and
executed a variable interest rate promissory note, with an initial rate of 5.490
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percent, payable in 180 monthly installments. To secure payment of the note,
Oshri executed a mortgage in favor of PNC affecting his residence in Lakewood,
New Jersey. The mortgage was recorded on September 7, 2004. PNC is the
original lender and remains the holder of the note and mortgage which were not
assigned.
Oshri defaulted on the note and mortgage by failing to make the payment
due on January 5, 2013. As a result, the entire outstanding principal amount,
plus interest, fees, costs, and advances, was accelerated and fell due.
PNC filed its complaint on April 21, 2014. Oshri filed a contesting answer
alleging PNC improperly seized funds from his depository account that had been
established to pay the mortgage loan. He claims the seizure of those funds
caused the resulting payment default.
The parties engaged in discovery, with Oshri propounding interrogatories
and a demand for production of documents. Oshri moved to compel answers to
discovery and to extend discovery. Determining that PNC provided adequate
responses to discovery demands, the trial court denied the motion to compel
discovery but granted a sixty-day extension of discovery.
Thereafter, Oshri sought to depose three bank representatives. PNC
objected to the depositions. Oshri moved to compel further discovery responses
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and the three depositions. PNC cross-moved for a protective order to quash the
deposition notice, claiming the individuals sought to be deposed were not
involved in the servicing or handling of the mortgage account. Oshri's motion
to compel was denied and PNC's motion for a protective order was granted.
Oshri filed an untimely amended answer, counterclaim, and third-party
complaint without PNC's consent or leave of the court. PNC moved to dismiss
the counterclaims and to strike defendant's contesting answer. The trial court
granted PNC's motions, dismissing his counterclaims, striking his answer as
non-contesting, entering default against him, and transferring the case to the
foreclosure unit as an uncontested matter. The trial court denied Oshri's motion
for reconsideration. Final judgment of foreclosure was entered against Oshri in
the amount of $47,113.36. This appeal followed.
In a prior civil action, High Point at Lakewood Condominium
Association, Inc. (High Point) sued Oshri, a unit owner in the condominium
complex, to collect unpaid fees and other accrued charges (Docket No. L-1670-
06). Oshri counterclaimed against High Point and filed a third-party complaint
against the law firm of Honig & Greenberg, LLC, principally alleging violations
of the Fair Debt Collection Protection Act (FDCPA), 15 U.S.C. §§ 1692 to -
1692p. PNC was not a party in that case.
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The facts and procedural history in that case are set forth in High Point at
Lakewood Condo. Ass'n v. Oshri, Docket No. A-4355-08 (App. Div. December
17, 2010). The trial court dismissed the third-party complaint and, following a
two-day proof hearing, entered an amended judgment against Oshri in the
amount of $9902, plus $1980.40 in amended counsel fees and costs (Judgment
No. J-313128-2006). Id. (slip op. at 2, 4). After filing liens against Oshri's
property by invocation of N.J.S.A. 46:8B-17, PNC retained the firm of Honig &
Greenberg to pursue collection of the judgment. Id. at 3. In that case, Oshri did
not dispute he had not paid the charges imposed by High Point , but instead
maintained the charges were unjustified and that High Point had not fulfilled its
contractual obligations. Ibid. The appellate panel affirmed the amended
judgment and dismissal of the third-party complaint, holding Oshri's numerous
arguments manifestly lacked merit and did not warrant discussion in a written
opinion. Id. at 4. The panel vacated and remanded dismissal of the
counterclaim. Id. at 16.
Subsequently, High Point obtained a writ of execution on its judgment
under Docket No. L-1670-06, and had the Ocean County Sheriff levy on Oshri's
depository bank account at PNC, allegedly rendering him unable to remit the
mortgage payments. At the time of the levy, the sum of $2724.23 was on deposit
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in the account. On November 28, 2012, PNC Bank put a hold on the account
until further instruction from the court. Thereafter, High Point moved for
turnover of funds. Oshri moved to quash the writ of execution. The trial court
ordered PNC Bank to turn over the sum of $2724.23 levied upon to the Sheriff,
denied Oshri's motion to quash the writ of execution, and denied the other relief
sought by Oshri. Although Oshri was successful in obtaining a stay of any
turnover order, the record does not indicate he was successful in setting aside
the levy on his bank account.
High Point also attempted to enforce its judgment through a sheriff's sale.
Oshri filed an interlocutory appeal and obtained several orders from the
Appellate Division holding High Point should not have been permitted to take
action in aid of execution because the matter was not ripe for execution until the
counterclaim was resolved.
Oshri raises numerous arguments, some of which are undiscernible. Oshri
argues the writ of execution served on PNC was fraudulent and defective; the
Sheriff had no authority when he served the defective writ; the trial court erred
by granting the motion to strike the contesting answer and affirmative defenses
and entering default because the motion did not comply with Rule 4:46-1; he
was denied due process by not being permitted to depose three essential
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employees of PNC; and the trial court erred by dismissing his counterclaim
which alleged violations of the FDCPA.
We affirm the orders and judgment on appeal substantially for the reasons
expressed by the trial court. We add the following comments.
We review orders limiting discovery for an abuse of discretion.
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 221, 371 (2011) (citing
Bender v. Adelson, 187 N.J. 411, 428 (2006)). "That is, '[w]e generally defer to
a trial court's disposition of discovery matters unless the court has abused its
discretion or its determination is based on a mistaken understanding of the
applicable law.'" Ibid. (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80
(App. Div. 2005)). We discern no abuse of discretion by the trial court in
sustaining PNC's objection to the deposition of the three PNC employees who
had no knowledge of the mortgage account or the foreclosure proceedings.
Oshri argues the trial court erred by granting the motions to dismiss his
counterclaims and strike his contesting answer and affirmative defenses because
the motions were returnable only two days before the November 12, 2015
scheduled trial date, in violation of Rule 4:46-1, which requires summary
judgment motions to be made returnable not less than thirty days before the trial
date. Oshri did not oppose the merits of the motions or object to the timeliness
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of the motions. Accordingly, the motions were properly deemed unopposed.
We further note PNC filed and served its motions at least twenty-eight days
before the return dates. See R. 4:46-1.
Oshri first objected to the timeliness of PNC's motions in his motion for
reconsideration. A motion for reconsideration "is properly denied if based on
facts known to the movant prior" to the return date of the underlying motion or
if "based on new legal arguments that were not presented to the court in the
underlying motion." Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on
R. 4:49-2 (2019) (citations omitted).
In any event, Oshri has not demonstrated any prejudice resulting from the
motion return dates. The trial court is not precluded from deciding a dispositive
motion returnable less than thirty days before the scheduled trial date. Indeed,
the rule provides an escape valve requiring applications for trial adjournments
to be liberally granted if the motion decision is not rendered at least ten days
before the trial date. R. 4:46-1. Here, of course, there was no trial as the motions
were granted.
Oshri attempts to exonerate his nonpayment default by claiming the writ
of execution leading to the levy on his depository bank account was fraudulent
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and defective and that the Sheriff had no authority to impose the levy when he
served the defective writ. We are unpersuaded by these arguments.
PNC was not a party to the collection action brought by High Point against
Oshri. "When a levy is made on a bank account, 'the funds levied are technically
no longer the bank's or debtor's to control.'" Pitney Bowes Bank, Inc. v. ABC
Caging Fulfillment, 440 N.J. Super. 378, 385 (App. Div. 2015) (quoting Sylvan
Equip. Rental Corp. v. C. Washington & Son, Inc., 292 N.J. Super. 568, 574
(Law Div. 1995)). "They are under the dominion of a court officer." Sylvan,
292 N.J. Super. at 574.
PNC was obligated to honor the sheriff's levy on Oshri's bank account
unless the levy was vacated, the funds were deemed exempt, or the court ordered
turnover of the funds. Had PNC not honored the sheriff's levy, it would have
been liable to High Point. Ibid. Oshri's purported inability to remit mortgage
payments to PNC as a result of the levy is not a defense to the foreclosure.
Appellant's remaining arguments are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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