VALLEY NATIONAL BANK v. 561 BROADWAY, LLC

NOT FOR PUBLICATION WITHOUT THE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 NOS. A-1664-16T4
                                                                  A-4203-16T4

VALLEY NATIONAL BANK,

       Plaintiff-Respondent,

v.

561 BROADWAY, LLC, ROBERT
SCHROEDER, WESTEX LENDING,
INC., BEECH TREE CORP., and
STEVEN L. WONG,

       Defendants,

and

GRACE WONG,

     Defendant-Appellant.
_________________________________

                Argued October 15, 2018 – Decided October 24, 2018

                Before Judges Haas and Mitterhoff.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Bergen County, Docket No. F-
                028187-12.
              Grace S. Wong, appellant, argued the cause pro se.

              James F. Forte argued the cause for respondent (Saiber,
              LLC, attorneys; James H. Forte and John M. Losinger,
              on the brief).

PER CURIAM

      In these two back-to-back appeals, which we now consolidate for purposes

of this opinion, defendant Grace Wong (defendant) appeals from the Chancery

Division's December 2, 2016 order denying her motion for reconsideration of

the court's prior order that determined plaintiff Valley National Bank's mortgage

was a purchase money mortgage, first in priority in this foreclosure action.

Defendant also challenges the court's April 21, 2017 order denying her motion

to vacate the writ of execution plaintiff obtained after the final judgment of

foreclosure was issued. We affirm.

      The parties are fully familiar with the lengthy procedural history of this

matter that is fully set forth in the thorough opinions rendered by Judge Robert

Contillo concerning both orders. Therefore, we summarize only the most salient

facts here.

      On May 21, 2004, defendant 561 Broadway LLC (Broadway) executed a

note in the amount of $500,000 to plaintiff. To secure payment of the note,

Broadway executed a mortgage to plaintiff, and this mortgage was recorded on


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                                         2 June 2, 2004. Broadway used the mortgage funds to purchase a commercial

property in Westwood.        Defendant Robert Schroeder (Schroeder) was a

guarantor of the mortgage.

      On November 7, 2011, Broadway executed a second mortgage to

defendant Steven Wong (Steven), 1 and that mortgage was recorded on January

6, 2012. After Broadway and Schroeder defaulted on the mortgage, plaintiff

brought a foreclosure action against them. 2 Steven filed a contesting answer to

the complaint, and alleged that even though his mortgage was recorded eight

years after plaintiff's mortgage, it had first priority. Because Steven's mortgage

was clearly in second position, the court granted plaintiff's motion for summary

judgment on September 12, 2013, and confirmed that plaintiff's mortgage had

first priority. Steven then assigned all his rights in his mortgage to defendant.

      Plaintiff filed an amended foreclosure complaint because it had

mistakenly failed to identify its mortgage as a purchase money mortgage in its



1
  Steven is defendant's husband. Because Steven and defendant share the same
surname, we refer to Steven by his first name to avoid confusion. In doing so,
we intend no disrespect.
2
  Plaintiff also named two other companies, Westex Lending, Inc. and Beech
Tree Corp., as defendants because they allegedly held mortgages on the property
that were subordinate to plaintiff's mortgage. However, the trial court
subsequently determined that these mortgages were void.
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original complaint. After plaintiff sought the entry of a final judgment of

foreclosure, defendant filed a motion to vacate the September 12, 2013 summary

judgment order on the priority issue. On October 9, 2015, Judge Contillo denied

this motion, and found that defendant had failed to cite any legal basis for

vacating the order.

      Thereafter, defendant continued to oppose plaintiff's efforts to conclu de

the action, and insisted that the mortgage she had obtained from Steven had

priority over plaintiff's mortgage, which had been recorded eight years earlier.

Eventually, plaintiff filed another summary judgment motion seeking a ruling

that its mortgage had priority over defendant's lien, and that its mortgage was a

purchase money mortgage.

      On August 19, 2016, Judge Contillo granted summary judgment to

plaintiff "as to all issues other than [p]laintiff's claim that its mortgage is a

purchase money mortgage." The judge then conducted a one-day bench trial on

that issue and, on October 19, 2016, determined that plaintiff's mortgage was a

purchase money mortgage that had first priority in the foreclosure action.

      Turning to the orders that are the subject of this appeal, defendant then

filed a motion for reconsideration, arguing that the judge "overlooked probative

evidence and factual contentions" in making his rulings. She claimed that


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                                       4
because Steven was now involved in a bankruptcy proceeding, the foreclosure

litigation should be stayed, even though Steven assigned the mortgage to

defendant years before he filed his bankruptcy action. She also alleged that an

order issued in another appeal involving different parties 3 had some relevance

to her action and that the judge erred by failing to consider it.

      After oral argument on December 2, 2016, Judge Contillo rendered a

cogent oral opinion denying defendant's motion for reconsideration. He found

that defendant's allegations were "a restatement of arguments considered and

rejected by the [c]ourt at the trial." He also observed that the October 17, 2016

order in the unrelated appeal was simply not relevant to the matter currently

before the court.

      Plaintiff thereafter obtained a final judgment of foreclosure and a writ of

execution. Defendant filed a motion to vacate the writ, and asserted that plaintiff

had failed to file and serve a signed copy of the judgment of foreclosure. On

April 21, 2017, Judge Contillo denied defendant's motion. In a thorough written

decision, the judge found that plaintiff had submitted a signed judgment of

foreclosure to the court, and that all of the required documents were properly


3
  This order was issued on October 17, 2016 in a case called Kearney Federal
Savings Bank v. 100 West Street LLC, Robert Schroeder, Docket No. A-0993-
15.
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                                         5
e-filed through the Automated Case Management System (ACMS).                 These

appeals followed.

      On appeal, defendant argues that Judge Contillo erred by denying her

motion for reconsideration and her application to vacate the writ of execution.

We have considered defendant's contentions in light of the record and applicable

legal principles and conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for

the reasons expressed by Judge Contillo in his thoughtful oral and writ ten

opinions. We add the following brief comments.

      We review the denial of a motion for reconsideration to determine whether

the trial court abused its discretion. Cummings v. Bahr,  295 N.J. Super. 374,

389 (App. Div. 1996). "Reconsideration cannot be used to expand the record

and reargue a motion." Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi,

 398 N.J. Super. 299, 310 (App. Div. 2008). A motion for reconsideration is

meant to "seek review of an order based on the evidence before the court on the

initial motion . . . not to serve as a vehicle to introduce new evidence in order to

cure an inadequacy in the motion record." Ibid. (citation omitted).

      For these reasons, reconsideration should only be granted in "those cases

which fall into that narrow corridor in which either 1) the [c]ourt has expressed


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                                         6
its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious

that the [c]ourt either did not consider, or failed to appreciate the significance

of probative, competent evidence." Cummings,  295 N.J. Super. at 384 (quoting

D’Atria v. D’Atria,  242 N.J. Super. 392, 401-02 (Ch. Div. 1990)). Therefore,

we have held that "the magnitude of the error cited must be a game-changer for

reconsideration to be appropriate." Palombi v. Palombi,  414 N.J. Super. 274,

289 (App. Div. 2010).

      Here, Judge Contillo properly concluded that plaintiff's mortgage,

recorded in June 2004, clearly had first priority over defendant's mortgage,

which was not recorded until January 2012. Sovereign Bank v. Gillis,  432 N.J.

Super. 36, 43 (App. Div. 2013) (noting that "New Jersey is a 'race-notice'

jurisdiction, meaning that when two parties are competing for priority over each

other's mortgage, the party that recorded its mortgage first will normally

prevail"). It was equally clear that plaintiff proved that its June 2004 mortgage

was a purchase money mortgage because, among other reasons, the document

specifically stated on page twenty-one, directly above the parties' signatures,

that it was "a purchase money mortgage in that funds secured by this Mortgage

[were] being used to acquire" the property that Broadway purchased after it

received those funds.


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      In her motion for reconsideration of the judge's reasoned decision,

defendant raised the exact same contentions that were previously unsuccessful.

Under those circumstances, Judge Contillo did not abuse his discretion by

denying the motion. Cummings,  295 N.J. Super. at 389.

      We also discern no basis for disturbing the judge's denial of defendant's

motion to vacate the writ of execution. The final judgment of foreclosure was

e-filed and, therefore, did not need to be physically stamped "filed." In addition,

Judge Contillo reviewed the records contained in ACMS and determined that all

of the required documents had been properly entered in the record. Therefore,

defendant's contentions on this point plainly lack merit.

      Affirmed.




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