FEDERAL HOME LOAN MORTGAGE CORPORATION v. RICHARD N. DEFABRIZIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6057-10T3

FEDERAL HOME LOAN

MORTGAGE CORPORATION,

Plaintiff-Respondent,

v.

RICHARD N. DEFABRIZIO, and

VICTORIA M. DEFABRIZIO,

his wife, and each of, his/

her heirs, devisees, and

personal representatives,

and his/her, their or any

of their successors in right,

title and interest, WELLS

FARGO BANK, NA,

Defendants-Appellants.

_______________________________________

May 23, 2012

Argued April 30, 2012 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from Superior Court of New Jersey,

Chancery Division, Essex County, Docket No.

F-27384-10.

Richard N. DeFabrizio, appellant, argued the

cause pro se.

Barbara E. Riefberg argued the cause for

respondent (Shimberg & Friel, P.C.,

attorneys; Anne E. Walters, on the brief).

PER CURIAM

In this residential foreclosure action, defendant Richard DeFabrizio, pro se, appeals from two orders of the Chancery Division that entered default against him and dismissed his counterclaim because he failed to appear on the scheduled trial date. We affirm.

According to the foreclosure complaint, defendant executed a note and mortgage to Wells Fargo Bank in August 2005 for a loan of $271,489 secured by a mortgage on his residence located in Montclair.1 Defendant has not made any payments toward the loan since March 2009. In May 2010, Wells Fargo Bank assigned the note and mortgage to plaintiff Federal Home Loan Mortgage Corporation.

Plaintiff filed its foreclosure complaint in May 2010. Defendant filed a timely answer denying the allegations of the complaint without factual elaboration, but his pleading also included several affirmative defenses and a counterclaim for alleged violation by plaintiff and Wells Fargo Bank of federal and state statutes. Plaintiff filed an answer to the counterclaim in September 2010.

The case was scheduled for a pretrial conference in the Chancery Division on June 7, 2011. On June 2, 2011, plaintiff's attorney received a notice issued by defendant seeking to depose a representative of plaintiff at 7:00 a.m. on June 6, 2011. Counsel for plaintiff promptly responded by letter of June 3, 2011, that plaintiff would not be able to produce a witness for deposition on such short notice.

The parties attended the pretrial conference on Tuesday, June 7, 2011. The court first addressed an outstanding discovery motion filed earlier by defendant alleging that plaintiff had failed to produce documentary discovery as demanded by him under Rule 4:18-1. Plaintiff's attorney represented that she had provided a copy of the Wells Fargo Bank loan origination file to defendant in December 2010 and had again responded to his demand for documents in April 2011. Defendant did not dispute that he had received the documents but sought a labeling of them to correspond to his demand for production. The court reviewed defendant's specific demands and plaintiff's responses and ruled that the responses complied with the discovery rule. The court denied defendant's motion to compel more specific answers.

The court then conducted a pretrial conference and requested that each party file and serve a pretrial memorandum by Friday of that week. The court also stated explicitly on the record that trial would begin the following Thursday, which was June 16, 2011. Plaintiff's attorney revealed that she would present only one witness at the trial; defendant did not know how many witnesses he would produce. When the court asked the parties whether they had anything else to raise at the pretrial conference, plaintiff answered no, and defendant did not respond. There was no discussion of the deposition that defendant sought of plaintiff's representative.

On June 16, 2011, defendant did not attend court for the trial. Instead, having engaged the services of a stenographer, he waited for the representative of plaintiff and counsel to appear for deposition at a different location. When plaintiff's representative and counsel did not appear, defendant made a short record of that fact with the stenographer.

On appeal before us, defendant claims that, after the pretrial conference of June 7, he had telephone conversations with the judge's chambers during which the judge's clerk told him the court had granted his motion to compel the deposition of plaintiff's representative on the morning of June 16, 2011. Other than defendant's claim to that effect, the record contains no document or other evidence of such a ruling by the court.

Plaintiff's attorney filed a certification in this court disputing defendant's statements.2 Counsel states that she and plaintiff's representative were present at the courthouse on the morning of June 16, 2011, ready to argue a late-filed motion by defendant to compel the deposition. She and her witness were also prepared to proceed to trial. Counsel states that the court made a record in the courtroom of her appearance and defendant's absence. She states further that she called defendant's cell phone to inquire as to his whereabouts, but he did not respond to the call. She has produced her cell phone records to corroborate that a one-minute call was made to defendant's cell phone number at 10:43 a.m. on June 16, 2011.

Plaintiff's attorney states further in her certification that the court directed her to return at 1:30 p.m. for trial. She did return with her witness prepared to proceed to trial, but defendant still did not appear in the afternoon. The judge ruled that defendant was in default and his counterclaim would be dismissed. The judge asked plaintiff's attorney to prepare and submit an order to that effect under the so-called five-day rule, Rule 4:42-1(c). According to plaintiff's attorney, the judge's default and dismissal ruling on June 16, 2011, was made in the courtroom and on the record.

To corroborate her version of the events, counsel for plaintiff has included in her appellate appendix correspondence she sent to defendant and the court after the pretrial conference. By letter dated June 9, 2011, counsel wrote to the court, with a copy to defendant, addressing defendant's "Emergency Application for Relief." Apparently, after the pretrial conference, counsel received a letter from defendant dated June 6, 2011, that he styled in that manner and that demanded certain discovery from plaintiff and made reference to defendant's desire to depose plaintiff's witness.

On June 14, 2011, plaintiff's attorney again wrote to the court, with a copy to defendant. In relevant part, counsel stated in that letter: "it is my understanding that Your Honor will entertain oral argument on June 16, 2011 concerning Defendant's last minute application to take the deposition of a representative of Plaintiff. The representative will be available at 11:00 a.m. should Your Honor grant the Defendant's application." The letter ended by repeating the same anticipated schedule on defendant's motion to compel the deposition, and it finally stated: "The Plaintiff will be ready to proceed with the trial as scheduled on June 16, 2011."

Defendant contends on appeal that he received no notice of the trial date, but he does not dispute receiving the letters from plaintiff's attorney after the pretrial conference, and he cannot refute the express statement of the judge contained in the June 7 transcript that the trial would begin the following Thursday (June 16). Defendant alleges that plaintiff failed to appear for a "court-ordered" deposition on the morning of June 16 and also was not present at the court on that date. As our recitation of the record and the averments of both parties on appeal demonstrates, there was no court-ordered deposition on June 16. On the other hand, defendant was clearly informed at the pretrial conference that trial would be conducted on June 16.

Defendant asserts further that because neither party appeared in court on June 16, 2011, the court initially dismissed both parties' pleadings. In support of that claim, he cites his attempt to obtain a transcript of relevant proceedings and the court reporter's notation response: "nothing done on record." He also points to a court-generated form order of dismissal filed on June 16, 2011, that seems to refer to plaintiff's complaint as well as defendant's counterclaim as being dismissed.

Defendant's assertions, however, are inaccurate. After he filed his notice of appeal, he requested that the court reporter provide transcripts for two dates in July 2011, not for the relevant June 16, 2011 date. Furthermore, the court-generated June 16 order had a check mark next to a pre-printed phrase "Complaint dismissed," but it also seems to have clarified that ruling in conformity with plaintiff's version of the events by means of a handwritten notation, which stated: "striking defendant's answer + counterclaim for failure to appear at trial on 6/16/11."

Contrary to defendant's argument that plaintiff's counsel and the court "secretly" entered a subsequent order dated June 29, 2011, dismissing only his pleading, counsel for plaintiff served that proposed order upon defendant appropriately under Rule 4:42-1(c). Defendant raised no objection to its content or entry within the required five days or at any later time until on appeal before us.

Also without merit is defendant's argument that the court's June 29, 2011 order was improperly entered because plaintiff did not produce proof of its entitlement to a foreclosure judgment. The June 29 order transferred the case to the Foreclosure Unit of the Superior Court under Rules 4:64-1 to -3 for treatment thereafter as an uncontested foreclosure case. The order did not enter a foreclosure judgment.

Rule 1:2-4 provides in relevant part:

If without just excuse . . . no appearance is made on behalf of a party on the call of a calendar . . . or on the day of trial . . . the court may order any one or more of the following: (a) the payment by the delinquent attorney or party . . . of costs, in such amount as the court shall fix . . . ; (b) the payment by the delinquent attorney or party . . . of the reasonable expenses, including attorney's fees, to the aggrieved party; (c) the dismissalof the complaint, cross-claim, counterclaim or motion, or the striking of the answer and theentry of judgment bydefault . . . ; or (d) such other action as it deems appropriate.

[(Emphasis added).]

While dismissals or defaults for failure to appear at trial should normally be sanctions of last resort, Irani v. K-MartCorp., 281 N.J. Super. 383, 387 (App. Div. 1995), we find no abuse of discretion in the court's ordering that sanction in the circumstances shown by this record. See Kohn's Bakery, Inc. v.Terracciano, 147 N.J. Super. 582, 585 (App. Div. 1977). Defendant offered no valid excuse for his failure to attend court on June 16, although he had been informed directly by the judge of that trial schedule just days earlier. If, as defendant claims, he was later misled that the court had ordered the deposition of plaintiff's representative for the morning of June 16, he has provided no explanation for failing to respond to counsel's letter of June 14, or to her phone call on the morning of June 16. He also has not given any reason for failing to inquire of counsel or the court by phone when no one appeared for the deposition he attempted to conduct.

Most important for our appellate purposes, defendant has not provided the transcript of the relevant proceedings in the Chancery Division on June 16, as required by Rule 2:5-3(a). Presumably, that transcript would reveal the reasons for the trial court's ruling entering default and dismissing his counterclaim. In addition, defendant has been deceptive in his arguments on appeal as to the availability of such a transcript. Although he argued in his brief that the court reporter indicated no proceedings were held on June 16, his transcript request form did not seek a transcript of proceedings on that date.

We find no reason to disturb the trial court's determination that defendant had no just excuse for failing to appear at the scheduled trial date and that the matter should proceed as an uncontested foreclosure action.

A

1 According to the complaint, defendant's wife also executed the mortgage as a "non-vested spouse." Although she was named as a defendant in this action, she is not involved in this appeal.

2 Although an appellate court does not ordinarily consider evidence that was not part of the record in the trial court, it has inherent power to accept such evidence in appropriate circumstances. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 452 (2007). Here, defendant first made representations in his appellate brief that were outside the record. Plaintiff should have a fair opportunity to respond.