WELLS FARGO BANK, N.A. VS. HENRY R. CHU (F-033346-14, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-3211-15T4
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
HENRY R. CHU, MRS. HENRY R.
CHU, his wife, MARY Q. CHU,
MR. CHU, husband of MARY
Q. CHU, UNITED STATES OF
AMERICA,
Defendants-Appellants.
____________________________________
Submitted July 13, 2017 – Decided July 24, 2017
Before Judges Yannotti and Haas.
On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. F-033346-14.
Montell Figgins, attorney for appellants.
Reed Smith, LLP, attorneys for respondent
(Henry F. Reichner, of counsel and on the
brief).
PER CURIAM
In this mortgage foreclosure matter, defendant Henry Chu
appeals from a final judgment of foreclosure entered on February
11, 2016. We affirm.
We derive the following procedural history and facts from the
record. Defendant formerly held title to a residence in
Sayreville. On June 6, 2003, defendant and his now-deceased wife
executed a note to plaintiff Wells Fargo Bank, N.A. in the amount
of $90,000. To secure payment, defendant executed a mortgage
encumbering the residence in favor of plaintiff. The mortgage was
recorded with the Middlesex County Clerk's Office on August 1,
2003.
On June 14, 2013, defendant defaulted on the loan. On August
12, 2014, plaintiff filed its foreclosure complaint. Defendant
filed an answer on September 19, 2014.
However, on August 26, 2015, the parties agreed to the entry
of a consent order. Under the terms of this order, which was
filed by the trial court on September 3, 2015, defendant withdrew
his answer, together with "any and all counterclaims[.]" In
return, plaintiff agreed that it would not seek a final judgment
of foreclosure until December 26, 2015. The parties also agreed
that the matter would be "returned to the Office of Foreclosure
to proceed as an uncontested matter."
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On January 4, 2016, plaintiff gave defendant notice of its
motion for the entry of a final judgment of foreclosure, and it
filed this motion on January 21, 2016. On February 11, 2016, the
Chancery Division entered 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" in its dealings with him. 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 3, 2015 consent order. It
is well established that orders consented to by the parties are
not appealable. New Jersey Schools Constr. Corp. v. Lopez, 412
N.J. Super. 298, 308 (App. Div. 2010) (citing 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
his answer deemed uncontested, with all of his affirmative defenses
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and counterclaims voluntarily dismissed with prejudice, defendant
is barred from challenging the final judgment of foreclosure.
Just as importantly, defendant did not raise either of his
current arguments in the Chancery Division. We will ordinarily
decline consideration of issues 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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