EMIGRANT MORTGAGE COMPANY INC v. GINA GENELLO

NOT FOR PUBLICATION WITHOUT THE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-0

EMIGRANT MORTGAGE COMPANY,

INC.,

Plaintiff-Respondent,

v.

GINA GENELLO and FRANK

GENELLO,

Defendants-Appellants,

and

PALISADE COLLECTION, INC.,

Defendant.

December 2, 2016

Before Judges Kennedy and Gilson.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-45130-08.

Dunne & Associates, L.L.C., attorneys for appellants (Leonard B. Cohen, of counsel and on the brief).

Knuckles, Komosinski & Manfro, L.L.P., attorneys for respondent (Robert T. Yusko, on the brief).

Defendant Palisade Collection, Inc., has not filed a brief.

PER CURIAM

Defendants Gina and Frank Genello appeal from an August 7, 2015 order denying their motion for reconsideration of a June 12, 2015 order striking their objection to the entry of a final judgment in a foreclosure action. We affirm because defendants presented no legitimate basis to object to the final judgment.

The facts regarding the amount defendants borrowed and their default are not in dispute. Defendants borrowed $383,500 and signed a promissory note secured by a mortgage on their home. The promissory note provided that interest would be charged at an adjustable rate. The note also provided that if defendants defaulted, they would have to pay an additional three percent interest rate in addition to the interest rate being charged under the note. Plaintiff Emigrant Mortgage Company (Emigrant) owns the note and mortgage.

Defendants ceased paying the amount they owed under the note and Emigrant filed a foreclosure action in November 2008. Defendants initially contested that action but, in 2010, the parties entered into a forbearance agreement. Under that agreement, Emigrant agreed to forebear from prosecuting the foreclosure action and gave defendants six months to try to sell their home and repay the note. In exchange, defendants waived all defenses to and counterclaims in the foreclosure action.

Defendants were not successful in selling their home and the six-month forbearance period expired. Thereafter, defendants sought additional time to engage in mediation and motions were filed because the court had mistakenly dismissed the foreclosure action. Ultimately, the court entered an order on March 21, 2014, restoring the foreclosure action, striking defendants' answer, and entering default against defendants. The court also ordered

The plaintiff may only seek and recover interest at the rate set forth in the [n]ote for the period of March 16, 2010[,] through the date of [f]inal [j]udgment, and plaintiff shall not be entitled to recover any default interest or default penalties for that time period.

In August 2014, Emigrant sent defendants a statement of the amount due and incorrectly showed interest being charged at the default rate, which at that time was eight percent. Nevertheless, when Emigrant applied to the court for entry of a final judgment, it correctly used the non-default interest rate of five percent in calculating the amount due in the final judgment.

Defendants objected and argued that because of the conflict between the statement and the amount being sought in the final judgment, the final judgment should not be entered. In an order dated June 12, 2015, the trial court rejected that contention and directed that a final judgment be entered. A final judgment was then entered on July 22, 2015. In the meantime, defendants filed a motion for reconsideration, and that motion was denied in an order dated August 7, 2015. This appeal followed. 1

The sole argument defendants raise on appeal is that because Emigrant sent a statement with an incorrect default rate of eight percent, the amount sought in the final judgment was somehow in dispute, even though they do not argue that the amount was correctly calculated using the non-default interest rate of five percent. We reject this argument as without basis in fact or law.

The only law defendants cite to support their position is Rule 4:64-1.2 Rule 4:64-1(d)(3) provides in pertinent part that a party "who disputes the correctness of the affidavit of amount due may file . . . an objection stating with specificity the basis of the dispute and asking the court to fix the amount due."

Here, defendants do not state with specificity the basis of their dispute. Instead, they ask the trial court to speculate that the amount being sought might not be correct because the statement they received used the default rate interest calculation. Emigrant, however, provided the trial court with a statement detailing the interest calculation. The court reviewed the interest calculations submitted by Emigrant and found that it was consistent with the promissory note and the court's prior order, which did not allow for a default rate interest between March 16, 2010, and the entry of the final judgment.

Affirmed.

1 The only order that is on appeal before us is the order of August 7, 2015. Defendants identified that order as the order they were appealing in their notice of appeal. Accordingly, that is the only order that is subject to review on appeal. See 1266 Apartment Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004) (explaining that "it is only the judgment or orders designated in the notice of appeal which are subject to the appeal process and review" (citing Sikes v. Township of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.), aff'd o.b., 138 N.J. 41 (1994))).

2 Defendants also cited to Wells Fargo Bank, N.A. v. Garner, 416 N.J. Super. 520 (App. Div. 2010). That case, however, does not support defendants' position. In Wells Fargo, we dismissed an appeal from a summary judgment order in a foreclosure action because it was interlocutory. Id. at 523. In so ruling, we also noted that defendant could, if he had a basis, object to the amount sought in the final judgment under Rule 4:64-1(d). Id. at 524.