MTGLQ INVESTORS, L.P. VS. EILEEN BRYLINSKI (F-007226-17, MIDDLESEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1666-20
MTGLQ INVESTORS, L.P.,
Plaintiff-Respondent,
v.
EILEEN BRYLINSKI and
FRANK BRYLINSKI,
Defendants-Appellants,
and
MR. BRYLINSKI, unknown
spouse of EILEEN BRYLINSKI,
Defendant.
____________________________
Submitted October 5, 2021 – Decided October 14, 2021
Before Judges Fisher and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No.
F-007226-17.
Eileen Brylinski and Frank Brylinski, appellants pro se.
Akerman, LLP, attorneys for respondent (Scott B.
Brenner and Erica R. S. Goldman, on the brief).
PER CURIAM
In 2016, plaintiff MTGLQ Investors, L.P., received from Bank of
America, N.A., the assignment of a thirty-year mortgage executed by defendants
Eileen and Frank Brylinski in 2007 against their Metuchen home. In 2017,
MTGLQ commenced this foreclosure action and moved for summary judgment
when defendants filed an answer. In moving for summary judgment, MTGLQ
asserted that a notice of intent to foreclose was sent by Bank of America to
defendants in accordance with the Fair Foreclosure Act, N.J.S.A. 2A:50-56. The
trial judge determined that MTGLQ submitted sufficient evidence to show the
notice of intent was sent and granted MTGLQ's summary judgment motion.
Final judgment of foreclosure was later entered and the property sold to MTGLQ
at a sheriff's sale.
Defendants appealed, arguing there was a lack of competent proof that
Bank of America sent the notice of intent prior to MTGLQ's filing of the
foreclosure complaint. For reasons expressed in an unpublished opinion, we
found a genuine question of fact about the notice of intent. To be specific, we
held that the issue was not whether the notice of intent failed to conform to the
Fair Foreclosure Act but "whether [it] was sent," explaining that if someone "can
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lay an adequate foundation" on this question, "then the judgment need not be
disturbed." MTGLQ Investors, LP v. Brylinski, No. A-2409-18 (App. Div. July
14, 2020) (slip op. at 17).
Following our decision, the chancery judge conducted an evidentiary
hearing. MTGLQ called a witness who testified about whether Bank of America
sent a notice of intent to defendants. Defendant Frank Brylinski cross-examined
the witness but neither he nor his wife testified and they did not call any
witnesses to rebut the testimony of MTGLQ's witness. At the end of the hearing,
the judge rendered oral findings in support of his conclusion that the witness
was credible and that the notice of intent was sent. Two orders were entered on
February 9, 2021. One order memorialized the factual determination about the
notice of intent and concluded there was no basis to disturb the final judgment
of foreclosure.1 The other order memorialized the judge's denial of defendants'
motion to compel MTGLQ to compensate them for the full value of the
foreclosed property.
Defendants appeal, arguing:
I. THE REVERSAL AND REMAND OF THE
FORECLOSURE ACTION WAS NO LONGER AN
1
This order appended a written opinion that further amplified the judge's oral
decision.
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OPTION WITHOUT SETTING ASIDE THE
SHERIFF'S SALE.
II. PLAINTIFF FAILED TO LAY A SUFFICIENT
FOUNDATION TO ESTABLISH THE [NOTICE OF
INTENT'S] ADMISSIBILITY UNDER THE
BUSINESS RECORD EXCEPTION TO THE
HEARSAY RULE, N.J.R.E. 803(c)(6).
III. THE TRIAL COURT ERRED, AND ABUSED ITS
DISCRETION, DENYING DEFENDANTS' MOTION
FOR COMPENSATION.
Because our standard of review requires that we defer to judge-made findings
when supported, as here, by credible evidence in the record, see Rova Farms
Resort, Inc. v. Inv. Ins. Co., 65 N.J. 474, 484 (1974), and because defendants
could not conceivably be entitled to any relief as argued in Point III absent an
outright reversal of the judgment of foreclosure and dismissal of the complaint,
we find insufficient merit in defendants' arguments to warrant further discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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