DEUTSCHE BANK NATIONAL TRUST COMPANY v. AVERY PATRICK

NOT FOR PUBLICATION WITHOUT THE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
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                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2270-17T3

DEUTSCHE BANK NATIONAL
TRUST COMPANY as Trustee for
Morgan Stanley ABS Capital I Inc.,
Trust 2006-WMC2,

          Plaintiff-Respondent,

v.

AVERY PATRICK,

          Defendant-Appellant,

and

MRS. AVERY PATRICK, his wife;
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.,
as a nominee for WMC MORTGAGE
CORP., CROSSPOINTE
CONDOMINIUM ASSOCIATION, INC.,

     Defendants.
______________________________________

AVERY PATRICK,

          Third-Party Plaintiff-Appellant,
v.

WELLS FARGO BANK, NA,

     Third-Party Defendant-Respondent.
_____________________________________

               Submitted October 31, 2018 – Decided December 18, 2018

               Before Judges Reisner and Mawla.

               On appeal from Superior Court of New Jersey, Law
               Division, Middlesex County, Docket No. L-0289-17.

               Avery O'Neil Patrick, appellant pro se.

               Reed Smith, LLP attorneys for respondents (Henry F.
               Reichner, of counsel; Siobhan Anne Nolan, on the
               brief).

PER CURIAM

         Avery Patrick appeals from a December 1, 2017 order granting summary

judgment dismissing his trespass counterclaim and third-party complaint against

Deutsche Bank National Trust Company and Wells Fargo Bank, N.A. (Wells

Fargo).1 Our review of the trial court's order is de novo, employing the Brill2




1
  Patrick's trespass claim was primarily directed at Wells Fargo, the entity that
directed the changing of the locks on his property after he defaulted on his
mortgage. We will refer to Wells Fargo as "plaintiff."
2
     Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995).
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standard. See Globe Motor Co. v. Igdalev,  225 N.J. 469, 479 (2016). After

considering the record in light of that standard, we affirm.

                                      I

      The case arises from a counterclaim and third-party complaint that Patrick

filed in a foreclosure action.  3 In 2006, Patrick obtained a loan secured by a

mortgage that, in pertinent part, gave the mortgagee the right to enter the

property to protect its interests, in the event of a default or in the event the

property became abandoned. We quote the relevant portions of paragraph nine

of the mortgage:

            Protection of Lender's Interests in the Property and
            Rights Under this Security Instrument. If (a) Borrower
            fails to perform the covenants and agreements
            contained in this Security Instrument, . . . or (c)
            Borrower has abandoned the Property, then Lender may
            do and pay for whatever is reasonable or appropriate to
            protect Lender's interest in the Property . . . including .
            . . securing and/or repairing the Property . . . . Securing
            the Property includes, but is not limited to, entering the
            Property to make repairs, change locks, replace or
            board up doors and windows, drain water from pipes,
            eliminate building or other code violations or
            dangerous conditions, and have utilities turned on or
            off. . . .




3
  The foreclosure complaint was eventually resolved, and Patrick's trespass and
related claims were transferred to the Law Division.
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      There is no dispute that Patrick defaulted on the mortgage in 2007. After

the default, plaintiff had an inspection company inspect the property multiple

times. Beginning in October 2007, the inspectors reported that the property was

vacant and appeared to be abandoned. As a result, plaintiff secured the property

by changing the locks. Several months later, Patrick contacted plaintiff and

asked for a copy of the new keys to the property. After some delay, plaintiff

provided him with a set of keys.

                                     II

      The statute of limitations for trespass is six years. See  N.J.S.A. 2A:14-1.

Patrick asserted a trespass claim for the first time on July 24, 2014. Plaintiff

changed the locks on his property on October 25, 2007, almost seven years

earlier. Consequently, the trespass claim was time-barred.

      However, even if the claim was timely, it is without merit. The mortgage

documents explicitly gave plaintiff the right to enter and secure the mortgaged

property in the event of default or if it became abandoned. Plaintiff submitted

legally competent evidence that it received inspection reports, and those reports

supported its reasonable belief that the property was abandoned. Specifically, a

series of inspection reports, submitted by an independent inspection company,




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indicated that as of October 25, 2007, the property was "vacant." A later report

indicated that the utilities had been turned off.

      Moreover, Patrick did not call plaintiff to complain about the locks being

changed, until the end of January 2008. He submitted no evidence to show he

made any effort between October 25, 2007, and January 26, 2008, to gain access

to the property. When Patrick called plaintiff in January 2008, he told the

operator that he did not remember the last time he had been in the home. Nor

did he submit evidence that he paid the utility bills in 2007 or 2008.

      On this record, plaintiff was entitled to conclude that Patrick defaulted on

the mortgage and abandoned the property. Pursuant to the unambiguous terms

of the mortgage, plaintiff was entitled to change the locks and secure the

property. See Woodlands Cmty. Ass'n, Inc. v. Mitchell,  450 N.J. Super. 310,

316-17 (App. Div. 2017). Hence, the trespass claim was properly dismissed on

summary judgment.

      Patrick's argument concerning the alleged application of the anti-eviction

statute was not raised in the trial court. See  N.J.S.A. 2A:18-73 to -76. We

ordinarily will not consider claims asserted for the first time on appeal. See

Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973). But even if we were

to consider the argument, the anti-eviction statute does not apply, because


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Patrick was not plaintiff's tenant. Patrick's claim for destruction of personal

property was not supported by any proof of damages.           Neither argument

warrants further discussion. R. 2:11-3(e)(1)(E).

      Patrick did not brief the issues of consumer fraud and breach of the

covenant of good faith and fair dealing, claims the trial court rejected. Because

he did not brief those issues on appeal, they are waived. See Sklodowsky v.

Lushis,  417 N.J. Super. 648, 657 (App. Div. 2011).

      Affirmed.




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