Bayview Loan Servicing, LLC v. Reza Farzan ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-2787-22
A-0789-23
BAYVIEW LOAN SERVICING,
LLC.,
Plaintiff-Respondent,
v.
REZA FARZAN,
Defendant-Appellant,
and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,
INC., as nominee for AMERICAN
MORTGAGE NETWORK, INC.,
Defendant.
____________________________
Argued October 8, 2024 – Decided November 8, 2024
Before Judges Firko and Augostini.
On appeal from the Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-013470-16.
Reza Farzan, appellant, argued the cause pro se.
Gregg P. Tabakin argued the cause for respondent
(Fein, Such, Kahn & Shepard, PC, attorneys; Gregg P.
Tabakin, on the brief).
PER CURIAM
In these back-to-back appeals, which we have consolidated for the purpose
of writing one written opinion, defendant Reza Farzan appeals from orders
entered on May 12, 2023 and September 25, 2023. We affirm.
I.
The procedural history and facts of this case were previously detailed in
our decision, Bayview Loan Servicing, LLC v. Farzan, No. A-2336-21 (App.
Div. June 7, 2023 slip op. 1-7). We incorporate the facts set forth in our prior
opinion and recount only salient facts to give context to the issues before us on
these appeals.
On February 14, 2005, defendant obtained a residential loan for property
in Holmdel, New Jersey in the amount of $359,650.00 from American Mortgage
Network, Inc. The note, which defendant signed in favor of American Mortgage
Network, Inc. was secured by a mortgage naming Mortgage Electronic
Registration Systems Inc. (MERS) as nominee for American Mortgage Network,
Inc.
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Defendant made payments on the loan from February 2005 to September
2008 and ceased making payments after losing his job. He has continued to live
in the home without making payments on this debt.
On February 27, 2009, MERS, as the nominee for American Mortgage
Network, Inc., assigned the mortgage to Chase Home Finance, LLC (Chase).
On February 28, 2014, Chase assigned the mortgage to plaintiff Bayview Loan
Servicing, LLC.
On or about July 27, 2015, defendant entered into a loan modification
agreement with plaintiff. Shortly thereafter, on August 1, 2015, defendant
defaulted on the loan and has not made the required monthly payments to date.
A foreclosure complaint was filed on May 12, 2016. Defendant filed an
answer and counterclaim on July 27, 2016. The parties filed cross motions for
summary judgment, and on March 3, 2017, the trial court granted summary
judgment to plaintiff and denied defendant's cross-motion.
After years of motion practice in both state and federal court, plaintiff
filed its motion for final judgment of the foreclosure on August 20, 2019, which
was granted. On September 3, 2019, the trial court entered a final judgment of
foreclosure.
A-2787-22
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In March 2022, defendant moved for a stay of the foreclosure action
because he filed for bankruptcy protection, and he also sought the judge's recusal
and to vacate the writ of execution. On April 1, 2022, the court denied the relief.
On January 4, 2023, defendant filed a motion seeking to strike the
assignment to Chase, vacate summary judgment, withdraw the writ of execution,
and dismiss the foreclosure complaint. This relief was denied on May 12, 2023.
Before the January 4th motion had been decided, on May 6, 2023, defendant
filed a motion to stay the sheriff's sale and dismiss the foreclosure complaint.
This motion was also denied on May 12, 2023.
Defendant had filed another matter regarding the property in the law
division. At the request of the law division judge, the chancery division judge
stayed the sheriff's sale until July 10, 2023 to permit the law division motions
to be resolved.
On September 19, 2023, defendant filed an order to show cause to stay the
sheriff's sale until certain documents were provided and other issues resolved.
The court denied the relief sought in an order entered on September 25, 2023.
This appeal followed.
II.
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In his merits brief regarding the order entered on May 12, 2023, defendant
contends:
POINT I
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO ATTEND THE ORDER TO SHOW
CAUSE HEARING IN PERSON. THE TRIAL
COURT FORCED ME TO ATTEND THE HEARING
VIA ZOOM AGAINST MY WILL.
POINT II
THE TRIAL COURT ERRED BY ALLOWING
BAYVIEW'S ATTORNEY TO PROCEED WITH HIS
ORAL ARGUMENT.
POINT III
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO EXAMINE THE MORTGAGE
ASSIGNMENT OF 2/27/2009, THE [A]FFIDAVIT OF
LOST NOTE OF 2/12/2014, AND THE MORTGAGE
ASSIGNMENT OF 2/28/2014 IN AN EVIDENTIARY
HEARING.
POINT IV
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO EXAMINE THE HAM AGREEMENT
OF 2015 AND SAMANTHA DICKIE'S
CERTIFICATION OF 10/18/2022 IN AN
EVIDENTIARY HEARING.
POINT V
A-2787-22
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THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO COMPEL BAYVIEW TO PRODUCE
AN STATEMENT UNDER OATH REGARDING
THE PARTIES OF INTEREST OF THE NOTE PER
NEW JERSEY CHAPTER 225 LAW.
POINT VI
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO COMPEL BAYVIEW TO PRODUCE
AN ASSIGNMENT OF THE NOTE AND
ASSIGNMENT OF THE MORTGAGE FROM
BAYVIEW TO NATIONSTAR.
POINT VII
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO GRANT ME PAIN AND SUFFERING
DAMAGES AND PUNITIVE DAMAGES FOR
COMMITTING FRAUD UPON THE COURT BY
BAYVIEW.
POINT VIII
THE TRIAL COURT ERRED BY FAILING TO
ACKNOWLEDGE AND DECLARE THAT THE
FORECLOSURE COURT LACKED SUBJECT
MATTER JURISDICTION BY PROCEEDING WITH
THE FORECLOSURE COMPLAINT FILED BY
BAYVIEW ON MAY 12, 2016.
POINT IX
THE TRIAL COURT ERRED BY FAILING TO
DISMISS THE FORECLOSURE COURT OF 5/12/16.
POINT X
A-2787-22
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THE TRIAL COURT ERRED BY FAILING TO
RESTORE MY CONSTITUTIONAL RIGHTS IN THE
FORECLOSURE COURT OF MONMOUTH
COUNTY[,] NJ.
Defendant raises many of the same issues in his merits brief
regarding the order dated September 25, 2023 1; however, he raises
these additional contentions:
POINT II
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO VACATE THE SUMMARY
JUDGMENT OF 3/3/17.
POINT III
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO VACATE THE FINAL JUDGMENT
OF 9/3/19.
POINT IV
THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO WITHDRAW THE ALIAS WRIT OF
EXECUTION OF 1/13/22.
POINT VI
1
The following points raised in defendant's merits brief challenging the order
dated September 25, 2023 were raised in the merits brief challenging the May
12, 2023 orders and are not repeated here: Points I, V, VII, VIII and IX.
A-2787-22
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THE TRIAL COURT ERRED BY DENYING MY
REQUEST TO REMOVE MY HOUSE FROM THE
SHERIFF[']S SALES LIST.
We begin by acknowledging the limited scope of our review. "[A] trial
court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference." Rowe v. Bell &
Gossett Co., 239 N.J. 531, 552 (2019) (quoting Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)). However, "[r]eviewing
appellate courts should 'not disturb the factual findings and legal conclusions of
the trial judge' unless convinced that those findings and conclusions were 'so
manifestly unsupported by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of justice.'" Griepenburg
v. Twp. of Ocean, 220 N.J. 239, 254 (2015) (quoting Rova Farms Resort, Inc.
v. Invs. Ins. Co., 65 N.J. 474, 483-84 (1974)).
When reviewing a final judgment, we review conclusions of law de
novo. Ibid. "'Because statutory interpretation involves the examination of legal
issues,' we apply 'a de novo standard of review.'" State v. Patterson, 435 N.J.
Super. 498, 515 (App. Div. 2014) (quoting State in the Int. of K.O., 217 N.J. 83,
91 (2014)). When reviewing the facts of a case, we will apply a deferential
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standard to the findings of the trial court. Balducci v. Cige, 240 N.J. 574, 594
(2020).
A.
Res Judicata and Collateral Estoppel
The long-established doctrine of res judicata bars the re-litigation of
claims already litigated and resolved. Velasquez v. Franz, 123 N.J. 498, 505
(1991). Plainly stated, once a cause of action has been addressed on the merits,
those claims are no longer open to re-litigation. Ibid. (citing Roberts v. Goldner,
79 N.J. 82, 85 (1979)). "For a judicial decision to be accorded res judicata effect,
it must be a valid and final adjudication on the merits of the claim." Id. at 506.
The doctrine of res judicata rests upon policy considerations that guard
parties against vexatious, repetitious litigation, while also protecting the public
against the burdens such litigation poses on the community. Lubliner v. Bd. of
Alcoholic Beverage Control for Paterson, 33 N.J. 428, 435 (1960).
As our Supreme Court explained in Velasquez, 123 N.J.
at 505:
[t]he rationale underlying res judicata
recognizes that fairness to the defendant
and sound judicial administration require a
definite end to litigation. The doctrine
evolved in response to the specific policy
concerns of providing finality and repose
for the litigating parties; avoiding the
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burdens of relitigation for the parties and
the court, and maintaining judicial
integrity by minimizing the possibility of
inconsistent decisions regarding the same
matter.
[Velasquez, 123 N.J. at 505.]
[Rippon v. Smigel, 449 N.J. Super. 344, 367 (App. Div.
2017) (citations reformatted).]
The application of res judicata is a question of law and requires these four
elements: "(1) a final judgment by a court of competent jurisdiction, (2) identity
of issues, (3) identity of parties and (4) identity of the cause of action." Selective
Ins. Co. v. McAllister, 327 N.J. Super. 168, 172-73 (App. Div. 2000) (quoting
T.W. v. A.W., 224 N.J. Super. 675, 682 (App. Div. 1998)); see also Rippon, 449
N.J. Super. at 367.
The doctrine of collateral estoppel also bars relitigating claims previously
resolved. For the doctrine to apply,
[T]he party asserting the bar must show that: (1) the
issue to be precluded is identical to the issue decided in
the prior proceeding; (2) the issue was actually litigated
in the prior proceeding; (3) the court in the prior
proceeding issued a final judgment on the merits; (4)
the determination of the issue was essential to the prior
judgment; and (5) the party against whom the doctrine
is asserted was a party to or in privity with a party to
the earlier proceeding.
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[Olivieri v. Y.M.F. Carpet, Inc., 186 N.J. 511, 521
(2006) (quoting In re Estate of Dawson, 136 N.J. 1, 20-
21 (1994) (citations and parentheticals omitted)).]
In denying the relief sought in the May 12, 2023 orders, the court found
defendant's arguments were either previously asserted or, by the exercise of
reasonable diligence, should have been asserted. The court further found that
other arguments were time barred, waived, or stale.
Defendant asserts the court erred in this conclusion because "the order of
12/10/2010 was new" as were defendant's communications with the sheriff.
Additionally, defendant argues that when fraud is asserted, there is no time limit
to vacate a complaint. These arguments are without merit.
Defendant's primary contention is that there were irregularities in the 2009
assignment of the mortgage based on allegations of robo-signing2 of that
assignment. In support of this assertion, which he has previously raised,
defendant relies upon the December 20, 2010 Administrative Order 01-2010
issued by Acting Administrative Director of the Courts, Glenn A. Grant in the
2
"'Robo-signers' are mortgage lender/servicer employees who sign hundreds—
in some cases thousands—of affidavits submitted in support of foreclosure
claims without any personal knowledge of the information contained in the
affidavits. 'Robo-signing' may also refer to improper notarizing practices or
document backdating." Administrative Order 01-2010: Directing Submission of
Information from Residential Mortgage Foreclosure Plaintiffs pmbl. at 3 n.1
(Admin. Off. of the Cts. Dec. 20, 2010) [hereinafter Administrative Order].
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performance of his supervisory responsibilities over the Office of Foreclosure.
Defendant's arguments and reliance upon this administrative order are misplaced
and barred by res judicata and collateral estoppel.
To protect the integrity of the judicial process and "ensure the veracity of
filings with the court in foreclosure cases[,]" Administrative Order ¶ 26 set forth
a number of steps to address foreclosure actions filed in 2010. The foreclosure
complaint filed against defendant was not filed until 2016.
The order further directed, pursuant to the Supreme Court's order of
December 20, 2010, amendments to the New Jersey Rules of Court be adopted
in all residential foreclosure actions to prevent future irregularities. Id. at ¶ 34;
R. 4:64-1. Following this directive, amendments to Rule 4:64-1 took effect in
2010 and set forth specific requirements for attorneys representing foreclosure
plaintiffs designed to reduce deficiencies and irregularities in foreclosure
complaints.
These requirements were in effect at the time of the filing of this
foreclosure matter. While defendant contends he only recently became aware
of the administrative order, the court rules as amended have been in effect
throughout the litigation and defendant, as a self-represented litigant, is
obligated to be familiar with and guided by these rules. Further, as the court
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correctly noted, defendant's bare allegations of irregularities have been
previously litigated or, through the exercise of reasonable diligence and
familiarity with court rules, should have previously been raised.
We are satisfied that the court properly concluded that defendant's bare
allegations of robo-signing regarding the 2009 assignment of the mortgage are
clearly time barred and are insufficient to allege a fraud claim.
Final judgment in the foreclosure action was entered over five years ago
on September 3, 2019, and the foreclosure complaint was filed approximately
eight years ago in 2016. Defendant was properly served with the complaint,
filed an answer and counterclaim, and as the court noted, during this litigation,
has filed over forty motions in this vigorously litigated case.
Discovery has long since ended in this case; yet defendant persists in his
demands to examine the mortgage assignment of 2009; the affidavit of lost note
of February 12, 2014; the mortgage assignment of February 28, 2014; the HAM
agreement of 2015; and the October 18, 2022 certification of Samantha Dickie.
Defendant offers no legal support for his contention that now, five years after
final judgment has been entered, the court should vacate final judgment, re-open
discovery and begin the litigation anew.
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At the September 25, 2023 order to show cause hearing, defendant
reiterated many of the same claims. Defendant reasserted the claim that the
court lacked subject matter jurisdiction. He further argued that the February 27,
2009 assignment of the note to Chase was "called fraudulent" in the December
20, 2010 administrative order. Defendant requested an evidentiary hearing
based on these alleged irregularities as he had requested in the past.
Unrelated to defendant's claims, plaintiff advised the court that the
sheriff's sale of the property was being adjourned. 3 The court granted a stay of
the sheriff's sale until November 20, 2023. At oral argument on these appeals,
plaintiff advised that the sale had not taken place; however, there was no
impediment to proceeding with the sheriff's sale.
In denying the order to show cause on September 25, 2023, the court
correctly noted that defendant's claims have been raised, considered by various
courts throughout the "litigation spanning 2016 to the present time" and have
been resolved. It explained that defendant's arguments "sound in the same
arguments of forged assignments, and forged documents, and perjury." Further,
3
At the hearing on September 25, 2023, plaintiff's counsel advised the court that
in handling the foreclosure matter, a substantial child support judgment against
defendant was overlooked, and it "potentially" rendered part of the foreclosure
defective. As a result, plaintiff represented that the matter needed to be
reviewed further before proceeding with the sheriff's sale of the property.
A-2787-22
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the court properly concluded that defendant failed to meet the four-prong test of
Crowe v. DeGioia 4 warranting emergent relief.
We are satisfied that the record fully supports the court's conclusion that
the relief sought had either been previously litigated, or should have been, and
that defendant failed to justify emergent relief.
B.
Subject Matter Jurisdiction
Defendant has repeatedly argued that the court lacked subject matter
jurisdiction to adjudicate the foreclosure complaint based upon alleged
irregularities in the assignments of the mortgage. We reject this assertion as
without merit.
Subject matter jurisdiction addresses a "threshold determination as to
whether the Court is legally authorized to decide the question presented," or has
the authority to adjudicate the controversy. Gilbert v. Gladden, 87 N.J. 275,
280-81 (1981). A foreclosure action that seeks a sale of the mortgaged property
is a quasi in rem action. Montclair Sav. Bank v. Sylvester, 122 N.J. Eq. 518,
521 (E. & A. 1937). The action is properly brought in the county where the
property is located. Guardian Life Ins. Co. of Am. v. Rita Realty Co., 17 N.J.
4
90 N.J. 126 (1982).
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Misc. 87, 92 (Sup. Ct. 1930). Thus, "[t]he Chancery Division [will] ha[ve] in
rem jurisdiction [if] the property is within New Jersey and subject to the court's
control." Last v. Audubon Park Assocs., 227 N.J. Super. 602, 606 (App. Div.
1988)(citing Drobney v. Drobney, 146 N.J. Super. 317, 322 (App. Div. 1977)).
Moreover, subject matter jurisdiction is nonwaivable. R. 4:6-7.
Here, the foreclosure complaint was filed in Monmouth County, where
the mortgaged property is located. Thus, the court clearly had subject matter
jurisdiction to adjudicate the foreclosure complaint.
C.
Case Management of Court Proceedings
Defendant raises issues pertaining to the court's management of the case.
He argues that the court erred in denying his request to attend the order to show
cause hearing on September 25, 2023 in person and further erred by allowing
plaintiff's attorney to proceed with oral argument. We find both contentions are
without merit.
Defendant provides no proof that he requested to attend the order to show
cause hearing in person or that this request was denied. The transcript of the
hearing does not corroborate defendant's claims that he raised this request at the
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beginning of the hearing; nor does defendant contend that he was prejudiced in
any way by appearing remotely.
Assuming arguendo that defendant's request to appear in person was
denied, the court was well within its authority to determine whether a routine
motion hearing should be handled virtually. See Notice to the Bar and Public:
"The Future of Court Operations – Updates To In-Person and Virtual Court
Events" (October 27, 2022).
We are satisfied that the court did not abuse its discretion in conducting
the proceedings remotely.
D.
N.J.S.A. 46:15-6.1
Defendant next asserts that the court erred by denying his request to
compel plaintiff to produce a statement under oath regarding the parties of
interest of the note pursuant to New Jersey Chapter 225. L. 1979, c. 225, § 1.
This law pertains to the application to the sheriff for the sale of real property.
Specifically, the sale shall not proceed until plaintiff has provided to the sheriff
"a statement, under oath, listing the names of all mortgagees and other holders
of encumbrances and the current balance of all prior mortgages, liens, or
encumbrances constituting 'consideration' as defined in section 1(c) of the act to
A-2787-22
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which this act is a supplement (C.46:15-5(c)), to which such sale shall be
subject." N.J.S.A. 46:15-6.1.
Defendant's argument is premature. The sheriff's sale of the property to
date has not occurred, nor, as of the date of oral argument, had it been scheduled.
Thus, the court properly denied this relief.
In conclusion, we are satisfied that the court properly denied the relief
sought on May 12, 2023 and September 25, 2023. We are also satisfied that the
court did not abuse its discretion in handling the proceedings remotely.
To the extent we have not addressed them, all other points raised by
defendant lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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