WELLS FARGO BANK, N.A. VS. NHIN DANG (F-014747-12, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5635-14T1
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
NHIN DANG,
Defendant-Appellant,
and
MRS. NHIN DANG,
Defendant.
_______________________________
Submitted March 9, 2017 – Decided May 10, 2017
Before Judges O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Atlantic County, Docket No.
F-014747-12.
Law Offices of David J. Khawam, L.L.C.,
attorneys for appellant (Mr. Khawam, on the
brief).
Reed Smith, L.L.P., attorneys for respondent
(Henry F. Reichner, on the brief).
PER CURIAM
Defendants, Nhin Dang and his wife, Mrs. Nhin Dang, appeal
from a June 4, 2015 final judgment in a residential mortgage
foreclosure action.1 For the reasons that follow, we affirm.
Defendants borrowed $190,400 from Cardinal Financial Company,
L.P. (Cardinal), on November 15, 2007, in connection with the
purchase of a residential property. Defendants agreed to monthly
payments of $1203.46, with a fixed interest rate of 6.5% annually.
A note payable over thirty years secured the loan. Defendants
executed a mortgage to secure the note, naming Mortgage Electronic
Registration Systems, Inc. (MERS) as the nominee for Cardinal, its
successors, and assigns.
The note was subsequently endorsed to Franklin American
Mortgage Company, who then endorsed the note to plaintiff Wells
Fargo Bank, N.A. around the same time defendants defaulted on the
loan in June 2011. Plaintiff sent notices of intention to
foreclose on July 3, 2011, and December 19, 2011. MERS assigned
the mortgage to plaintiff on September 1, 2011, and the Atlantic
County Clerk recorded the assignment on September 8, 2011.
Plaintiff filed a foreclosure complaint against defendants
on July 27, 2012. Defendants filed an answer and counterclaims
1 The final judgment refers to both Mr. and Mrs. Nhin Dang. We
refer to Mrs. Nhin Dang here generically, as Mr. Nhin Dang is the
only signature on the mortgage application, despite her being a
party in the action.
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on September 18, 2012. Plaintiff moved to strike defendants'
answer and dismiss the counterclaims, which the court treated as
unopposed, because counsel for defendants did not send any
opposition until the day before the hearing. Finding no basis for
defendants' counterclaims, the trial judge granted plaintiff's
motion and the case went back to the Office of Foreclosure.
Plaintiff and defendants entered into mediation in January
2013, but by March, defendants ceased communicating and the
mediation terminated. On December 20, 2013, the court issued a
foreclosure dismissal notice, informing the parties the case would
be dismissed for lack of prosecution under Rule 4:64-8 unless
plaintiff took steps to either litigate the matter or file a
certification of exceptional circumstances. Plaintiff mailed a
notice pursuant to of the Fair Foreclosure Act (FFA), N.J.S.A.
2A:50-58, to defendants on January 8, 2014.
On January 17, 2014, plaintiff filed an updated certification
of exceptional circumstances and mailed a notice of motion for
final judgment to defendants. The trial court found no exceptional
circumstances and dismissed plaintiff's action without prejudice
for lack of prosecution, pursuant to Rule 4:64-8, subject to
reinstatement for good cause shown.
It was not until December 17, 2014, that plaintiff moved to
reinstate the case to active status. Plaintiff's motion was
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unopposed, and on January 13, 2015, the trial judge ordered the
matter reinstated upon the filing of a motion for final judgment
with the Office of Foreclosure within 120 days. Defendants moved
for reconsideration, which the court denied on March 10, 2015.
Plaintiff moved for final judgment on April 30, 2015. On
June 4, 2015, the trial judge ordered defendants to pay plaintiff
$244,889.78 at an interest rate of 6.5%, along with attorney's
fees of $2598.90, and ordered the mortgaged property sold to
satisfy the debt.
This appeal followed. We begin by noting defendants' notice
of appeal (NOA) only addresses the June 4, 2015 final judgment,
but defendants' arguments on appeal challenge the January 13, 2015
motion to reinstate the foreclosure complaint and the March 10,
2015 denial of defendants' motion for reconsideration. Rule 2:5-
1(f)(3)(A) provides, "[I]t is only the judgments or orders or
parts thereof designated in the [NOA] which are subject to the
appeal process and review." Pressler & Verniero, Current N.J.
Court Rules, cmt. 6.1 on R. 2:5-1 (2011). We will consider orders
not referenced in the NOA if the civil case information statement
(CIS) places the adversary on notice of the intended scope of
appeal. See Ahammed v. Logandro, 394 N.J. Super. 179, 187-88
(App. Div. 2007).
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We may also consider an order not identified in the NOA where
"the basis for the motion judge's ruling on [an order and
subsequent order] may be the same. In such cases, an appeal [from
the subsequent order] may be sufficient for an appellate review
of the [earlier order], particularly where those issues are raised
in the CIS," Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455,
461 (App. Div.), certif. denied, 174 N.J. 544 (2002), by "clearly
indicat[ing]" the earlier order is "one of the primary issues
presented by the appeal." Synnex Corp. v. ADT Sec. Servs., Inc.,
394 N.J. Super. 577, 588 (App. Div. 2007).
The civil CIS herein does not clearly provide plaintiff with
notice defendants are appealing from the January 13, 2015 order
reinstating the complaint and the March 10, 2015 denial of
defendants' motion for reconsideration, nor are the aforementioned
motions based primarily on the same reasoning as the June 4, 2015
final judgment. Our review is therefore limited to entry of the
June 4, 2015 final judgment.
Defendants' argue the final judgment must be vacated because
plaintiff failed to comply with the requirements of the FFA,
specifically, the notice requirement. We disagree.
The FFA was designed to ensure homeowners were given
opportunity to pay their mortgages and keep their homes. N.J.S.A.
2A:50-54. A central component of the FFA requires lenders to
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provide timely and clear notice to homeowners of an impending
foreclosure action. US Bank Nat'l Ass'n. v. Guillaume, 209 N.J.
449, 470 (2012). N.J.S.A. 2A:50-56(a) requires homeowners be
given notice of the lender's intention to foreclose at least thirty
days in advance of the commencement of the action. The notice
must be in writing, mailed to the debtor by registered or certified
mail, and must "clearly and conspicuously state in a manner
calculated to make the debtor aware of the situation." N.J.S.A.
2A:50-56(b) and (c).
Defendants argue, because the foreclosure complaint was
dismissed without prejudice for lack of prosecution pursuant to
Rule 4:64-8 on February 7, 2014, plaintiff should have filed
another thirty-day notice of its intention to foreclose pursuant
to N.J.S.A. 2A:50-56 when it submitted its motion to reinstate the
complaint in December 2014.
There is no case law or statutory authority to support
defendants' position. The initial notice of intention to foreclose
satisfied N.J.S.A. 2A:50-56, and the complaint was not dismissed
due to a deficiency in notice; the complaint was dismissed for a
lack of prosecution pursuant to Rule 4:64-8. Rule 4:64-8 states,
when a foreclosure matter has been pending for
twelve months without any required action
having been taking therein, the . . . Court
shall issue written notice to the parties
advising that the matter as to . . . defendant
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will be dismissed without prejudice [thirty]
days following the date of the notice.
The matter may be reinstated after dismissal on a motion for good
cause shown. Ibid. The "dismissal of a foreclosure action,
without prejudice, has no effect on the underlying contractual
obligations of the parties and 'does not bar reinstitution of the
same claims in a later action.'" EMC Mortg. Corp. v. Chaudri, 400
N.J. Super. 126, 140 (App. Div. 2008) (quoting Woodward-Clyde
Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464, 472
(1987)).
Defendants' obligation to pay their mortgage continued after
dismissal of the initial complaint. The original notice of
intention to foreclose provided defendants sufficient notice,
pursuant to N.J.S.A. 2A:50-56, of plaintiff's intention to
foreclose. The dismissal of the initial complaint did not forego
defendants' contractual obligations to plaintiff. Defendants also
had notice of plaintiff's motion to reinstate the complaint in
December 2014, which they did not oppose. No statutory authority
or case law requires plaintiff to provide defendant with a second
notice of intention to foreclose prior to moving to reinstate the
complaint after dismissal without prejudice for lack of
prosecution pursuant to Rule 4:64-8.
Affirmed.
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