WELLS FARGO BANK, ETC. VS. CINDY BISCHOFF (F-044102-13, BERGEN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0096-18T4
WELLS FARGO BANK,
NATIONAL ASSOCIATION AS
TRUSTEE FOR STRUCTURED
ASSET MORTGAGE INVESTMENTS
II INC., GREENPOINT MORTGAGE
FUNDING TRUST 2006-AR2,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2006-AR2,
Plaintiff-Respondent,
v.
CINDY BISCHOFF,
Defendant,
and
JEFFREY BISCHOFF,
Defendant-Appellant.
_______________________________
Submitted December 2, 2019 – Decided December 19, 2019
Before Judges Messano and Vernoia.
On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No. F-
044102-13.
Jeffrey Bischoff, appellant pro se.
Parker Ibrahim & Berg LLP, attorneys for respondent
(Charles W. Miller, III, Ben Zev Raindorf and Jonathan
M. Etkowicz, on the brief).
PER CURIAM
In this mortgage foreclosure action, defendants Cindy Bischoff and
Jeffrey Bischoff (collectively "defendants") filed an objection to the amount
plaintiff Wells Fargo Bank NA claimed due in the final judgment. After oral
argument and consideration of the parties' numerous submissions, the court
entered a July 2, 2018 order and written opinion that reduced the sum due
plaintiff for its payments for insurance on the property, but otherwise overruled
defendants' objections to the amount due, and remanded to the Office of
Foreclosure for entry of final judgment. Jeffrey Bischoff (defendant) filed a
motion for reconsideration of the July 2, 2018 order.1 In an August 14, 2018
order and written statement of reasons, the court denied defendant's motion.
1
Cindy Bischoff did not move for reconsideration or appeal the denial of the
motion, and she has not participated in this appeal. We refer to Jeffrey Bischoff
as "defendant" because he filed the reconsideration motion that is at issue on
appeal, appealed the court's order denying the motion, and is the sole defendant
participating in the appeal.
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Defendant appeals from the August 14, 2018 order denying his
reconsideration motion. We find no merit to defendant's arguments and affirm.
I.
Following their default on March 1, 2012, of a $592,000 note executed by
Cindy Bischoff and a residential mortgage on an Emerson, New Jersey property
executed by defendants, plaintiff filed this foreclosure action. In August 2016,
the parties entered into a consent order requiring defendants' withdrawal of their
then pending motion to dismiss the complaint and returning the matter to the
Office of Foreclosure as an uncontested case. The consent order also delayed
the "Foreclosure Sale" for at least seven months, prohibiting the sale prior to
May 31, 2017.
One year later, defendant filed a motion to vacate the consent order. On
August 18, 2017, the court denied defendant's motion. In a written statement of
reasons, the court rejected defendant's claim plaintiff lacked standing, found
defendant's claim he entered into the consent order under duress was not
supported by credible evidence, and reasoned that "[d]efendant negotiated a
delay, and plaintiff abided by the terms of the consent order. Now that plaintiff
has complied with the settlement, defendant seeks to vacate the settlement." The
court concluded
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[i]t would be inequitable to allow defendant to receive
the delay defendant bargained for and then undo the
agreement. A change of heart after accepting a
settlement is not a basis to set aside the agreement . . .
A party is bound to the contract it made at the time,
even if it turns out to be a poor deal.
Plaintiff filed a motion for entry of final judgment. In support of the
motion, plaintiff provided a certification from Kim McElreath, a document
control officer employed by Select Portfolio Servicing, Inc. (SPS), plaintiff's
mortgage loan servicer. McElreath certified that she personally reviewed, and
confirmed the accuracy of, the Affidavit of Amount Due, note, mortgage, and
recorded assignments. McElreath also certified that defendants' default
remained uncured and plaintiff was due $841,214.69, as detailed in an attached
Proof of Amount Schedule. The schedule itemized the sums plaintiff claimed
defendants owed and included the sum of $11,947.55 that plaintiff paid for
homeowners insurance on the property following defendants' default.
Defendant filed numerous submissions in support of his objections to the
claimed amount due. In pertinent part, defendant objected to the plaintiff's claim
for reimbursement of its payments for homeowners insurance, arguing
defendants had paid for homeowners insurance on the property since 2004.
Plaintiff's opposition to defendant's objections included a series of letters
it sent to defendants between April 14, 2015, and April 24, 2017, advising
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defendants were required to have homeowners insurance on the property, and if
they did not provide proof of such insurance, plaintiff would purchase the
insurance and add the amount paid to the sum due. Plaintiff represented that
defendants did not respond to the letters or provide evidence they purchased
their own insurance, and that, as a result, in June 2016, plaintiff began
purchasing homeowners insurance on the property.
Plaintiff submitted a supplemental certification of Cynthia May, a
document control officer at SPS, explaining defendants' obligation to purchase
homeowners insurance; providing correspondence to Cindy Bischoff concerning
the renewal of the homeowners policy plaintiff purchased; noting defendants
could only cancel the policy purchased by plaintiff by providing written proof
they directly obtained the required insurance; and explaining plaintiff purchased
the policy "because acceptable proof of insurance coverage was not provided"
to SPS.
In response, defendant forwarded a letter to the court renewing his request
to vacate the consent order, claiming plaintiff had unclean hands and relied on
"fraudulent paperwork with fraudulent numbers" in support of its claim that
$11,947.55 was due for plaintiff's payment of the insurance. Defendant's
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submission of the letter to the court was not accompanied by an affidavit or
certification attesting to the purported facts supporting his request and claims.
On July 2, 2018, the court entered an order overruling defendant's
objection to the final judgment but limiting plaintiff's recovery for homeowners
insurance costs to $10,995.61. The court remanded the matter to the Office of
Foreclosure for entry of final judgment. In its written statement of reasons, the
court noted defendant's claim that plaintiff "impermissibly [sought] to recover
costs associated with insurance coverage," because defendant asserted that he
and Cindy Bischoff "paid the applicable insurance on the property since 2004."
The court otherwise rejected defendant's claim, finding defendants were asked
to provide proof of insurance on numerous occasions since as early as April
2015, and "all requests for proof insurance went unanswered."
The court further found plaintiff
provide[d] credible evidence that [d]efendants were
notified on a number of occasions that (i) [p]laintiff had
no record of insurance coverage on the property; (ii)
that absent any information from the [d]efendants,
[p]laintiff would purchase such insurance; and (iii) that
in the event [p]laintiff was so compelled to purchase the
insurance, the Note and Mortgage provide [p]laintiff
with a right to recover the monies expended for the
policy.
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The court determined defendant did not sufficiently dispute "the credibility of
[p]laintiff's evidence submitted," and concluded "the record clearly indicates
that [p]laintiff purchased insurance, and that [d]efendants are liable for the entire
sum paid for that policy." The court, however, found plaintiff's evidence only
demonstrated it paid $10,995.61 for the insurance and limited plaintiff's
recovery for insurance to that amount.
Defendant filed a motion for reconsideration. In response to defendant's
motion, plaintiff filed a cross-motion to enforce a settlement agreement that the
parties executed on the same day the consent order was filed, and for counsel
fees.
The court heard argument on the motions and reserved decision. In an
August 14, 2018 order and accompanying written statement of reasons, the court
denied the motions. The court first summarized defendant's argument in support
of his reconsideration motion:
[d]efendant, similar to when the original Objection to
the Amount Due was filed, argues that he purchased
[homeowners] insurance, and [p]laintiff is therefore not
entitled to any reimbursement for [its] own purchase of
the same. Defendant also renews his argument that the
Consent Order should be vacated. As to the Consent
Order, [d]efendant argues that it was an unconscionable
agreement, to which he only agreed under duress.
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The court observed that defendant's motion "is truly one for reconsideration of"
both the July 2, 2018 order overruling his objections to the claimed amount due
and the August 18, 2017 order denying his motion to vacate the consent order.
The court noted that a motion challenging the August 18, 2017 was untimely,
see R. 4:49-2, but it considered the merits of defendant's motion for
reconsideration as to both orders.
In its rejecting defendant's motion for reconsideration of the July 2, 2018
order as to the claimed amount due, the court noted defendant's arguments were
"conclusory in nature," he failed to present any evidence defendants purchased
homeowners insurance on the property, and the evidence showed defendants
were advised by plaintiff that if they did not purchase the "insurance, [p]laintiff
would purchase a policy, and [defendants] would be liable for the same." The
court explained the proofs had been carefully scrutinized in the first instance, it
had reduced the amount claimed by plaintiff for the insurance, and defendant
failed to demonstrate the court's July 2, 2018 order was palpably incorrect.
The court also determined defendant offered no basis for reconsideration
of the court's August 18, 2017 order denying his motion to vacate the consent
order. The court found defendant benefitted from the consent order by
"prolong[ing] the time in which he could remain within his home, all the while
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continuing not to pay the mortgage and requiring [p]laintiff to pay for the
carrying costs and taxes for the property." The court also explained that the
August 18, 2017 order was based on a finding defendant did not present any
evidence he entered into the consent order under duress, and defendant failed to
establish that finding was palpably incorrect.
Defendant appeals from the court's August 14, 2018 order denying his
reconsideration motion and offers the following arguments for our
consideration2:
POINT I
THE COURT IGNORED THE LEGAL PRINCIPLE
OF "FALSUS IN UNO, FALSUS IN OMNIBUS."
POINT II
THE PLAINTIFF COMMITTED A FRAUD.
POINT III
[THE] FINDER OF FACT IGNORED EVIDENCE.
II.
"The decision to deny a motion for reconsideration falls 'within the sound
discretion of the [trial court], to be exercised in the interest of justice.'" In re
2
The August 14, 2018 order also denied plaintiff's cross-motion. Plaintiff does
not appeal from that portion of the order.
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Belleville Educ. Ass'n, 455 N.J. Super. 387, 405 (App. Div. 2018) (quoting
Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996)).
Reconsideration should be employed only "for those cases which fall into that
narrow corridor in which either (1) the [c]ourt has expressed its decision based
upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt
either did not consider, or failed to appreciate the significance of probative,
competent evidence." Cummings, 295 N.J. Super. at 384 (quoting D'Atria v.
D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). "Reconsideration cannot be
used to expand the record and reargue a motion. Reconsideration is only to point
out 'the matters or controlling decisions which [a party] believes the court has
overlooked or as to which it has erred.'" Capital Fin. Co. of Del. Valley, Inc. v.
Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008) (quoting R. 4:49-2).
We review a trial court's decision to grant or deny a motion for
reconsideration under the abuse of discretion standard. See Cummings, 295 N.J.
Super. at 389 ("We now adopt that [abuse of discretion] standard as the
appropriate norm for appellate review of a denial of a motion for
reconsideration"). An abuse of discretion occurs "when a decision is 'made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209
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N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88,
123 (2007)).
Measured against these standards, we are convinced defendant's
arguments are without sufficient merit to warrant discussion in a written
opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth in
the motion court's written statement of reasons. We add only the following brief
comments.
To the extent defendant's motion may have been properly considered by
the court as seeking reconsideration of the August 18, 2017 order denying his
motion to vacate the consent order, it was properly denied because it was
untimely, R. 4:49-2. In addition, as correctly determined by the motion court,
defendant failed to demonstrate that denial of the motion to vacate the consent
order rested on a palpably incorrect or irrational basis, or that the court failed to
consider or appreciate the significance of competent evidence. Cummings, 295
N.J. Super. at 384. Moreover, we affirm because defendant does not argue on
appeal that the court's denial of his putative motion for reconsideration of the
August 18, 2017 order was in error. See Sklodowsky v. Lushis, 417 N.J. Super.
648, 657 (App. Div. 2011) (finding an issue not briefed on appeal is deemed
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waived); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2020) ("[i]t is, of course, clear that an issue not briefed is deemed wai ved").
Defendant's challenge to the court's denial of his motion for
reconsideration of the July 2, 2018 order is based on his conclusory assertion
that plaintiffs fraudulently claimed reimbursement for homeowners insurance
payments. Defendant's oft repeated claim of fraud does not make it so. "Fraud
is not presumed; it must be proven through clear and convincing evidence,"
Stoecker v. Echevarria, 408 N.J. Super. 597, 617 (App. Div. 2009) (quoting
Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super. 388, 395 (App. Div.
1989)), and defendant never presented competent evidence establishing the
alleged fraud.
Affirmed.
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