U.S. BANK, N.A., ETC. VS. EDWARD G. PETRAGLIA (F-010688-15, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-4651-16T4
U.S. BANK NA, Successor Trustee
to Bank of America, NA, Successor
in Interest to LaSalle Bank NA, as
Trustee, on Behalf of the Holders
of the WAMU Mortgage Pass-Through
Certificates, Series 2006-AR9,
Plaintiff-Respondent,
v.
EDWARD G. PETRAGLIA,
Defendant-Appellant,
and
MRS. EDWARD G. PETRAGLIA,
his wife, UNITED STATES OF
AMERICA, and STATE OF NEW
JERSEY,
Defendants.
_____________________________
Submitted January 16, 2019 - Decided March 27, 2019
Before Judges Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-010688-15.
Denbeaux & Denbeaux, attorneys for appellant (Joshua
W. Denbeaux, on the brief).
Parker Ibrahim & Berg, LLP, attorneys for respondent
U.S. Bank, N.A. (Scott W. Parker and Daniel A.
Schleifstein, on the brief).
Flowers & O'Brien, LLC, attorneys for respondents
Gregory J. Tencza and 314 Atlantic Avenue – Spring
Lake, LLC (W. Mark O'Brien and Michele A. Daitz, of
counsel and on the brief).
PER CURIAM
In this residential mortgage foreclosure, defendant Edward G. Petraglia
appeals from a May 30, 2017 order denying his application to vacate a sheriff's
sale and restrain delivery of the deed to the purchaser, intervenor Gregory J.
Tencza. Defendant argues the issuance of a reinstatement quote by plaintiff U.S.
Bank, N.A.'s servicer to him in the days before the sale constituted a binding
settlement agreement enforceable under GMAC Mortg., LLC v. Willoughby,
230 N.J. 172, 176 (2017). We disagree and affirm.
Defendant borrowed $1,260,000 from Washington Mutual Bank, F.A. in
June 2006, secured by a thirty-year non-purchase-money mortgage on his home
A-4651-16T4
2
in Spring Lake. The note went into default in January 2009 for non-payment.
Several months later, the mortgage was assigned to plaintiff.
No further payments were ever made and plaintiff filed a foreclosure
complaint in March 2015. Defendant never appeared in the action, and final
judgment was entered in August 2016. Plaintiff obtained a writ of execution
and scheduled a sheriff's sale for March 6, 2017. After exercising his two
statutory adjournments, defendant moved to vacate the final judgment and
further stay the sale.
The General Equity judge entered an order on March 27, further
adjourning the sale to May 8 to permit briefing and argument on the motion,
while noting the parties were free to "consider reinstat[ing] [the] mortgage."
The judge denied the motion to vacate the judgment on April 28.
On Monday, May 1, one week before the sheriff's sale, defendant's counsel
wrote to plaintiff's counsel proposing a forbearance agreement based on an
immediate payment of $50,000 and monthly payments of $11,000 with the
remaining balance to reinstate to be paid no later than April 30, 2018. 1
1
Plaintiff's counsel filed a certification in the trial court averring plaintiff had
already rejected a similar offer on April 7, 2017 and again on April 28, 2017,
and he had advised defendant's counsel the bank was only interested in
immediate reinstatement or a payoff of the entire balance due.
A-4651-16T4
3
Defendant's counsel wrote a second letter that same day asking that the servicer
provide an updated reinstatement quote good through that Friday. 2 In that letter,
defendant's counsel stated
[d]efendant advises me that it is his intention to deposit
an amount sufficient to pay the Reinstatement Quote in
my office trust account so that it is received and
available no later than Thursday, May 4, 2017. We will
provide proof of funds upon receipt of the deposit of
the funds.
The letter continued:
Please also confirm that if we can provide proof
of funds in my trust account for an amount sufficient to
reinstate and [the servicer] is unable, due to the
limitations of time, to provide the reinstatement quote
requested, that the Plaintiff will agree to adjourn the
Sheriff's Sale for a period of two (2) weeks. It is
understood that this request would require my office to
confirm the funds in place or provide other satisfactory
proof that funds are held.
On Wednesday, May 3, defendant telephoned the servicer directly
requesting a payoff figure and assistance in expediting the updated reinstatement
quote. Defendant followed up his call with an email that he be provided, "if
possible," with "a quote with a 'good to date' at least until 5:00 p.m. Friday 5
May 2017."
2
Plaintiff's servicer had on or about March 28 provided defendant a
reinstatement quote good through April 14 of $608,420.25.
A-4651-16T4
4
Plaintiff's servicer responded with a letter dated Thursday, May 4, but not
telefaxed to defendant until the morning of May 5, advising he could "cure the
delinquency by paying the total Reinstatement Amount" of $615,206.20 by the
"Reinstatement Good to Date" of May 4, by 5:00 p.m. The letter stated that
"[i]ssuance of this Reinstatement Quote does not constitute an agreement by [the
servicer] to suspend pending or future legal action." It further advised defendant
that if he was unable to pay the total reinstatement amount on or before the
"Good to Date," he must contact the servicer for an updated reinstatement quote
prior to remitting payment. Finally, the letter warned that the servicer
"reserve[d] the right to either reject or apply funds received after the expiration
of this Reinstatement Quote, and, if insufficient to fully reinstate, [the servicer]
may elect to apply the funds to your account." On Friday, May 5, the servicer's
ombudsman emailed a message to defendant extending the term of the "Good to
Date" to 2:00 p.m. of that same day. The email further stated that "[p]roof of
funding, for the entire amount is required in order to consider any
reinstatement."
On Monday morning, May 8, defendant's counsel appeared before the
General Equity judge seeking to stay the sheriff's sale scheduled for that
afternoon for an additional thirty days. Counsel asserted that "[d]efendant had
A-4651-16T4
5
assistance to reinstate [the] mortgage prior to this date but received [the]
reinstatement quote on Friday and did not have sufficient time to make
arrangements for payment." In support of the application he presented two
letters, one from an investor saying it would not be able to assist in transferring
the sums necessary "to [defendant's] attorney or to any third party, such as
[defendant's] lender, absent clear documents," and the other from a cousin of
defendant's representing he could provide proof of funds necessary to reinstate
within one or two days, with funds to be transmitted by the end of the week if
necessary. The judge denied the motion and the sheriff's sale of defendant's
home went forward as scheduled and was sold to intervenor as the highest
bidder.
Defendant, with new counsel, filed an application for an order to show
cause with temporary restraints seeking to restrain the sheriff's delivery of the
deed and set aside the sale in order to permit defendant the opportunity to
reinstate the mortgage. Defendant's counsel argued the parties had agreed to
settle the matter by permitting defendant to reinstate in accordance with a
reinstatement letter plaintiff's servicer agreed to supply. He claimed defendant
had sufficient funds to allow reinstatement by the Friday, May 5 at 5:00 p.m.
deadline and would have tendered the funds by that date but for defendant's
A-4651-16T4
6
clerical error of including an already expired "Good to Date" coupled with the
warning that funds submitted after that date could be applied to the account
without reinstatement. Counsel further argued that plaintiff's insistence on proof
of funds was a new term not previously a part of their agreement. Defendant
maintained plaintiff's failure to provide a reinstatement quote as previously
agreed breached the parties' contract entitling him to set aside the sheriff's sale.
The General Equity judge denied the motion, finding there was no
obligation for plaintiff to provide defendant with an opportunity to reinstate after
entry of judgment. Notwithstanding, the bank had done so on more than one
occasion and defendant had never tendered the funds nor demonstrated the
ability to do so. Acknowledging that the bank tendering a reinstatement quote
with a deadline that had already passed "certainly is improper," the judge found
"proof of funding was always necessary" and never provided by defendant. The
judge found there was no enforceable contract between the parties, no reason to
stay the sale and no reason to stay transfer of the deed to the third-party
purchaser.
The judge denied defendant's application to stay her decision pending
appeal. We likewise denied defendant's application to file an emergent motion
to stay the deed transfer and subsequently denied defendant's emergent
A-4651-16T4
7
application to stay his ejectment pending appeal, finding no reasonable
probability of success on the merits under Willoughby. Specifically, we noted
that unlike in Willoughby, "there is no mutually executed loan modification
agreement. The May 4, 2017 correspondence from the mortgage servicer
specifies that 'Issuance of this Reinstatement Quote does not constitute an
agreement . . . to suspend pending or future legal action . . . [.]'" Defendant's
request for emergent relief in the Supreme Court was denied by a single justice.
Defendant appeals, reprising the arguments he made in the trial court that
the parties entered into a settlement contract to cure the default and end the
foreclosure. Having now reviewed the entire record, our view is unchanged
from when we denied defendant's motion to stay the eviction. As our recounting
of the history of this matter makes clear, the parties never agreed to allow
defendant to reinstate his loan after entry of final judgment.
The correspondence between the parties establishes that plaintiff simply
offered to permit defendant to reinstate if he could muster the necessary funds
to do so. It also establishes that the General Equity judge was correct that proof
of funding was always necessary as acknowledged by defendant's counsel in his
correspondence to the bank's lawyer. The record is equally clear that defendant
did not, as his attorney represented to plaintiff he intended, deposit the funds
A-4651-16T4
8
necessary to reinstate into his attorney's trust account by May 4 or at any time
thereafter. Because there was no settlement agreement between the parties post-
judgment, Willoughby is not applicable here.
Affirmed.
A-4651-16T4
9