WELLS FARGO BANK, NA VS. DONALD D. COLLUCCI, JR.(F-16527-13, UNION 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NOT FOR PUBLICATION WITHOUT THE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-1948-15T3
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
DONALD D. COLLUCCI, JR.,
Defendant,
and
VERONICA COLLUCCI,
Defendant-Appellant.
_____________________________
Submitted June 8, 2017 – Decided July 11, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Union County, Docket No.
F-16527-13.
Franzblau Dratch, attorneys for appellant
(Julian Wilsey and S.M. Chris Franzblau, of
counsel and on the briefs; Noah Franzblau, on
the briefs).
Reed Smith L.L.P., attorneys for respondent
(Henry F. Reichner, of counsel and on the
brief).
PER CURIAM
Defendant Veronica Collucci appeals from Chancery Division
orders entered January 9, and August 3, 2015. We affirm.
On or about November 5, 2009, defendant Donald Collucci, Jr.,
executed a promissory note in favor of plaintiff, Wells Fargo
Bank, N.A., in the amount of $561,952; his wife, Veronica, did not
sign the note.1 The note was secured by a mortgage, also dated
November 5, 2009, on the marital home. Both defendants signed the
mortgage.
In 2010, defendants separated and a final judgment of divorce
was entered in 2013. Following the divorce, Veronica continued
to reside in the marital home. Unbeknownst to Veronica, Donald
stopped paying the required monthly payments on the note, beginning
in January 2011. The note subsequently went into default.
Plaintiff sent Donald a Notice of Intent to Foreclose (NOI) on
March 6, 2011, to the marital residence. Plaintiff did not send
the NOI to Veronica, personally, or copy her on the NOIs sent to
Donald. On May 16, 2013, plaintiff filed a complaint for
foreclosure. Veronica filed an answer on August 15, 2013.
Plaintiff moved for summary judgement on October 16, 2014.
Veronica opposed the motion and cross-moved, pursuant to Rule
1
We refer to defendants by their first names in order to avoid
any confusion.
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4:46-2, to dismiss the complaint arguing she had not been served
with any notice of foreclosure, as required by N.J.S.A. 2A:50-56
of the Fair Foreclosure Act, N.J.S.A. 2A:50-52 to -68.
The Chancery Division judge granted plaintiff's motion for
summary judgement on January 9, 2015, finding plaintiff had
satisfied the requirements of the Fair Foreclosure Act by only
sending notice to Donald as Veronica had not signed the note and
was not required to receive notice of intent to foreclose. The
Chancery Division judge issued a final judgement of foreclosure
on August 3, 2015. This appeal followed.
On appeal, Veronica argues the Chancery Division judge erred
in determining plaintiff satisfied the notice requirements of the
Fair Foreclosure Act by serving only Donald, warranting the
reversal of the final judgement of foreclosure. We disagree and
affirm.
Here, the Chancery Part judge focused on whether Veronica,
as a non-debtor mortgagor, was required to receive a NOI and,
after considering the language of N.J.S.A. 2A:50-56, rejected her
argument.
The facts are not contested. We consider whether a lender
has an obligation under N.J.S.A. 2A:50-56 to send a NOI to a
mortgagor who is not a signatory to the note. Since that is a
question of statutory interpretation, we consider the matter de
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novo. In re Liquidation of Integrity Ins. Co., 193 N.J. 86, 94
(2007).
"The Legislature adopted the Fair Foreclosure Act to give
homeowners 'every opportunity to pay their home mortgages, and
thus keep their homes' and to benefit lenders by allowing
'residential mortgage debtors [to] cure their defaults and return
defaulted residential mortgage loans to performing status.'" Bank
of N.Y. v. Laks, 422 N.J. Super. 201, 206 (App. Div. 2011)
(alteration in original) (quoting N.J.S.A. 2A:50-54), rev'd on
other grounds, U.S. Bank Nat'l. Ass'n v. Guillaume, 209 N.J. 449(2012). The Fair Foreclosure Act requires the lender, upon default
on the mortgage, to send notice of its intention to foreclose at
least thirty days prior to the lender accelerating the mortgage
obligation or commencing any foreclosure action. N.J.S.A. 2A:50-
56(a). The lender's statutory obligation to provide notice of its
intention to foreclose is "independent of any other duty to give
notice." Laks, supra, 422 N.J. Super. at 206 (quoting N.J.S.A.
2A:50-56(e)).
N.J.S.A. 2A:50-55 defines "residential mortgage debtor" or
"debtor" as "any person shown on the record of the residential
mortgage lender as being obligated to pay the obligation secured
by the residential mortgage." As noted above, only Donald signed
the promissory note, not Veronica. Veronica was a mortgagor, but
4 A-1948-15T3
not a debtor and the record does not expose any obligation on her
part to pay the note. Therefore, plaintiff did not have a
statutory obligation to send her a NOI. We previously rejected
the same premise urged by Veronica in Laks, supra, 422 N.J. Super.
at 205 n.4. We see no reason to revisit our previous
determination.
Affirmed.
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