WELLS FARGO BANK, NA v. RICHARD N. DeFABRIZIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4597-09T3

WELLS FARGO BANK, NA,

Plaintiff-Respondent,

v.

RICHARD N. DeFABRIZIO, his/her heirs,

devises, and personal representatives,

and his, her, their or any of their

successors in right, title and

interest; MRS. RICHARD N. DeFABRIZIO,

WIFE OF RICHARD DeFABRIZIO,

Defendant-Appellant.

________________________________________________________________

April 18, 2011

Submitted March 21, 2011 - Decided

Before Judges Lisa and Reisner.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-23759-09.

Richard N. DeFabrizio, appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant, Richard N. DeFabrizio, appeals from Judge Harriet F. Klein's Chancery Division order of April 26, 2010 in this mortgage foreclosure action. The order granted the partial summary judgment motion of plaintiff, Wells Fargo Bank, N.A., to strike defendant's answer, dismiss his counterclaim, enter default, and transfer the case to the Foreclosure Unit of the Superior Court. Defendant argues that the court erred in entering the order because plaintiff failed to comply with the notice provisions of the Fair Foreclosure Act, namely, N.J.S.A. 2A:50-56, failed to comply with its discovery obligations, and filed the motion in violation of the automatic stay in plaintiff's bankruptcy proceeding. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion, see R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Klein in her oral decision of April 23, 2010.

We nevertheless set forth a brief summary of the relevant events for the sake of completeness. Before doing so, however, we note that the April 26, 2010 order is not properly before us because it is not a final order. See R. 2:2-3. We could dismiss the appeal on this basis. However, for the sake of judicial economy, we choose to dispose of the appeal on the merits.

Plaintiff filed the foreclosure complaint on May 4, 2009. Defendant filed an answer and counterclaim. On November 11, 2009, defendant filed a Chapter 7 bankruptcy proceeding. According to the docketing record of the Bankruptcy Court, plaintiff filed a motion on November 30, 2009 seeking relief from the automatic stay. The docketing record further establishes that on December 22, 2009, a hearing was held in the Bankruptcy Court and plaintiff's motion for relief from the stay was granted. However, for some unexplained reason, an order memorializing that relief was not entered by the Bankruptcy Court until March 26, 2010. On February 19, 2010, the Bankruptcy Court entered an order discharging defendant from bankruptcy and terminating the bankruptcy proceeding.

On February 18, 2010, plaintiff filed a motion in the Chancery Division seeking the relief that was ultimately granted in the order that is the subject of this appeal. Defendant filed opposition, and a hearing was held on April 23, 2010.

With respect to the Fair Foreclosure Act notice issue, Judge Klein rejected defendant's argument that plaintiff had failed to provide proof of mailing to the mortgaged property and to defendant's address notice of intent to foreclose, by certified mail, return receipt requested. Proof of mailing to both addresses was contained in the record. The absence of return receipts did not constitute proof that the mailing had not been made, but only provided an indication that defendant did not accept the certified mailing. Defendant's submission of a postal tracking document that indicated the mailing had been delivered to an address in Temecula, California did not support defendant's contention that the mailing was misdirected. That California address was the return address of plaintiff, to which the unclaimed certified mailing had apparently been routed by the postal authorities.

Judge Klein was also unpersuaded by defendant's argument that plaintiff had violated the bankruptcy stay. The judge noted that the records of the Bankruptcy Court clearly revealed that defendant's motion for relief from the stay was granted on December 22, 2009. Indeed, defendant was discharged in bankruptcy on February 19, 2010, more than a month before the memorializing order of relief from the stay was entered on March 26, 2010. Further, no adverse action was taken against defendant prior to his discharge in bankruptcy.

Finally, any outstanding discovery could not provide a basis for establishing the existence of disputed issues of material fact. Defendant has failed to explain how further discovery would have provided a basis for denying entry of the order now before us.