FIRST AMERICAN TITLE INSURANCE COMPANY v. DAVID L. TILBURY et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3895-04T1

0930-04T5

FIRST AMERICAN TITLE INSURANCE

COMPANY,

Plaintiff-Respondent,

v.

DAVID L. TILBURY and

ANN E. TILBURY,

Defendants-Appellants.

________________________________

 

Submitted December 4, 2006 - Decided January 4, 2007

Before Judges S.L. Reisner, Seltzer

and C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Chancery Division,

Burlington County, Docket No. F-5216-87.

David L. Tilbury and Ann E. Tilbury, appellants pro se.

Harvey, Pennington, attorneys for respondent (Stephen McNally, on the brief).

PER CURIAM

This appeal arises out of a series of disputes over mortgages on a home owned by David L. Tilbury and Ann E. Tilbury. The Tilburys are defendants in a mortgage foreclosure action filed by plaintiff, First American Title Insurance Company (First American). In an earlier appeal arising from the same case, we affirmed Judge Bookbinder's order setting the amount due, which was entered after an evidentiary hearing. First Am. v. Tilbury, No. A-5069-01 (App. Div. May 30, 2003). In the appeal now before us, the Tilburys are appealing an April 1, 2005 order entered by Judge Bookbinder, denying their 2005 application for relief from the foreclosure judgment pursuant to R. 4:50-1(f) and for related relief. Judge Bookbinder issued a written opinion accompanying his order. We affirm.

I

The factual and procedural history of this appeal is set forth in our prior opinion in First American v. Tilbury, supra, and in the opinion of Judge Bookbinder, and need not be repeated in detail here. But we will begin by summarizing the most pertinent history.

Cenlar F.S.B. held a mortgage on defendants' house. When the mortgage fell into arrears, Cenlar commenced a foreclosure action in 1987. Following bankruptcy proceedings, defendants arranged to refinance the mortgage with Aames Funding Corporation (also known as Aames Home Loan), which in turn obtained title insurance through First American Title Insurance Company. Due to an error, the refinancing did not result in the complete payoff of the Cenlar mortgage. Approximately $26,000 was mistakenly disbursed to defendants and was retained by them, leaving that amount unpaid on the Cenlar loan following the refinancing transaction. Thus, Cenlar remained a mortgagee in first position, and Aames became a junior lienholder.

First American eventually obtained Cenlar's outstanding mortgage interest on the premises, reached an accommodation with Aames, and continued the Cenlar foreclosure action. On April 11, 2002, after a plenary hearing at which defendants declined to appear but their counsel appeared and cross-examined witnesses, Judge Bookbinder rendered judgment for First American, setting the amount due on the mortgage at $46,991.84, consisting of "a judgment amount of $33,083.74" plus interest, counsel fees and costs. His order provided that interest would continue "to run at 12.5% until the time of Sheriff's Sale." Defendants appealed, and we affirmed Judge Bookbinder's decision on May 30, 2003. First Am. v. Tilbury, supra.

Thereafter, First American applied for a final judgment of foreclosure. Defendants responded by moving before Judge Bookbinder for relief from the judgment he had entered setting the amount due. In the meantime, a final judgment of foreclosure was entered by Judge Shuster on May 24, 2004, permitting sale of the property. On July 8, 2004, Judge Bookbinder denied defendants' motion to reopen the foreclosure judgment. His order was without prejudice, pending defendants' motion to the Bankruptcy Court to reopen their prior bankruptcy and change the amount due under the prior order of the Bankruptcy Court. The Bankruptcy Court, however, denied defendants' application. A sheriff's sale was scheduled for October 7, 2004, but was delayed after defendants filed another bankruptcy petition, which was eventually dismissed on January 24, 2005.

After First American re-scheduled the sheriff's sale, defendants filed a motion before Judge Bookbinder on March 14, 2005, seeking relief from the prior foreclosure judgments entered by Judges Bookbinder and Shuster and relief from the impending sheriff's sale. Defendants thereby obtained a further delay of the sale. Their primary contentions on the motion were that the mortgagee had improperly "incorporated late fees and charges since the filing of the original [foreclosure] complaint in 1987" and that the mortgagee should have submitted "a more complete proof before entry of the judgment of foreclosure." They also contended that Judge Shuster had not signed the final judgment of foreclosure, which was the basis for the scheduled sheriff's sale. After hearing oral argument, Judge Bookbinder denied their motion by order dated April 1, 2005, concluding that the Tilburys' contentions were without merit and that they were improperly invoking Rule 4:50-1(f) to re-litigate issues that had already been decided. He also concluded that Judge Shuster had signed the final judgment.

Defendants appealed from Judge Bookbinder's order on April 11, 2005; this is the appeal currently before us. We denied defendants' application to stay the sheriff's sale in an order filed on April 18, 2005. According to First American's brief, the property was sold to First American at a sheriff's sale on April 21, 2005, and Judge Bookbinder denied defendants' motion to set aside the sale. Defendants have not appealed from that determination, but First American has not provided us with Judge Bookbinder's order.

II

The Tilburys have raised the following issues on this appeal:

POINT I: THE COURT COMMITTED HARMFUL ERROR BY FAILING TO VACATE SHERIFF SALE AND FORECLOSURE JUDGMENT ON MARCH 14, 2005 UPON APPELLANTS' MOTION PURSUANT TO R. 4:50-1(F), NOTIFYING THE COURT THE WRIT OF EXECUTION WAS UNSIGNED.

POINT II: THE COURT COMMITTED HARMFUL ERROR BY FAILING TO VACATE FINAL FORECLOSURE JUDGMENT SINCE JUDGMENT DID NOT CONFORM TO ORIGINAL FORECLOSURE COMPLAINT PURSUANT TO R. 4:43-2(c).

POINT III: THE COURT COMMITTED HARMFUL ERROR BY FAILING TO VACATE FINAL FORECLOSURE JUDGMENT WHEN THE COURT BECAME AWARE THAT LATE FEES AND COMPOUND INTEREST WERE INCORPORATED SINCE THE FILING OF THE ORIGINAL COMPLAINT IN 1987.

POINT IV: THE COURT COMMITTED HARMFUL ERROR BY FAILING TO REQUEST A MORE COMPLETE PROOF OF AMOUNT AS OWED.

POINT V: THE COURT COMMITTED HARMFUL ERROR BY GRANTING FINAL FORECLOSURE WITHOUT A COMPLETE MORTGAGE SCHEDULE ATTACHED TO FINAL FORECLOSURE JUDGMENT.

VI: THE COURT COMMITTED HARMFUL ERROR BY ALLOWING RESPONDENTS TO CORRECT A CLERICAL MISTAKE ON FORECLOSURE JUDGMENT WHILE MATTER WAS ON APPEAL.

VII: THE COURT COMMITTED HARMFUL ERROR BY VIOLATING R. 1:7-4(A) BY ISSUING AN ORDER AND TENTATIVE DECISION WITHOUT FINDINGS OF FACTS AND STATE IT[S] CONCLUSIONS OF LAW.

VIII: THE COURT COMMITTED HARMFUL ERROR BY DISREGARDING APPELLANTS' CLAIM THAT RESPONDENT HAD UNCLEAN HANDS BY HIDING AND VIOLATING DISCOVERY RULES.

IX: THE COURT COMMITTED HARMFUL ERROR BY DISREGARDING APPELLANTS' CLAIM THAT RESPONDENT VIOLATED RESPA, SECTION 6 FEDERAL RULES BY FAILING TO CORRECT LATE FEES AND COMPOUND INTEREST SINCE THE FILING OF FORECLOSURE COMPLAINT 1987.

X: THE COURT COMMITTED HARMFUL ERROR BY VIOLATING AND DEPRIVING APPELLANTS OF THEIR UNITED STATES CONSTITUTIONAL RIGHTS UNDER THE FOURTEENTH AMENDMENT TO EQUAL PROTECTION OF STATE AND FEDERAL LAWS.

XI: THE COURT COMMITTED HARMFUL ERROR BY VIOLATING APPELLANTS' UNITED STATES CONSTITUTIONAL RIGHTS UNDER THE NINTH AMENDMENT BY INFRINGING ON APPELLANTS' CIVIL FUNDAMENTAL RIGHTS TO LITIGATE IN A STATE OR FEDERAL COURT ON ISSUES REGARDING THE DEPRIVATION OF APPELLANTS' PROPERTY AND CIVIL RIGHTS.

In response, First American contends that this appeal is moot because the property was sold at a sheriff's sale. However, we will not dismiss the appeal on that basis. First American has not provided us with Judge Bookbinder's order denying the motion to set aside the sheriff's sale. Further, since First American bought the property, if we were to decide this appeal in the defendants' favor, the property could be transferred back to them. Caput Mortuum, L.L.C. v. S&S Crown Servs. Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004), is not on point with the facts of this case. Hence, we address the merits of the appeal.

Having reviewed the record, we conclude that all of defendants' appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nonetheless, we add the following comments.

We find no merit in the Tilburys' contention that First American did not submit sufficient proofs to support entry of the final judgment of foreclosure. The application was supported by an affidavit from First American's Vice President, in which she recited the $46,991.84 which was due pursuant to Judge Bookbinder's order, plus $8,089.63 in interest on the underlying judgment amount at the rate permitted in his order, for a total of $55,081.47. The latter amount was included in the final foreclosure judgment entered by Judge Shuster. Since Judge Bookbinder's order had already established the amount due on the mortgage debt, based upon a plenary hearing, no further proofs were required on the application for the final judgment of foreclosure. Defendants' reliance on Cho Hung Bank v. Kim, 361 N.J. Super. 331 (App. Div. 2003), is misplaced, because that case concerned the proofs required in a case where defendants defaulted and there was no plenary hearing to establish the amount due.

Moreover, we agree with Judge Bookbinder that defendants could not use Rule 4:50-1(f) to re-litigate issues that were res judicata by reason of his April 11, 2002 order setting the amount due and our May 30, 2003 decision affirming his order. First Am. v. Tilbury, supra. Indeed, most of the issues defendants seek to raise on this appeal are arguments that they either raised or could have raised in that earlier appeal. They are not entitled to yet another bite of the apple in this case.

Affirmed.

 

The mortgage was initially issued to Commonwealth Mortgage Corporation. It was assigned to Cenlar. For purposes of this opinion, we will refer to the mortgagee as "Cenlar."

Judge Bookbinder's order of April 11, 2002, and an amended order entered on April 25, 2003, did not constitute final judgments of foreclosure; rather, those orders resolved a dispute over the amount due under the mortgage. In order to have the property sold at a sheriff's sale, First American was required to file a separate application for a final judgment of foreclosure.

At the July 8, 2004 motion hearing, Mrs. Tilbury argued to Judge Bookbinder that in a prior bankruptcy proceeding, First American's predecessor mortgagee, Cenlar, had improperly added approximately $24,000 in charges onto the mortgage debt. Judge Bookbinder concluded that that issue should be presented to the Bankruptcy Court.

(continued)

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A-3895-04T1

 

January 4, 2007