DITECH FINANCIAL, LLC v. DOMINIC J. RUGGIERO

NOT FOR PUBLICATION WITHOUT THE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 NO. A-2143-16T3


DITECH FINANCIAL, LLC,

        Plaintiff-Respondent,

v.

DOMINIC J. RUGGIERO,

        Defendant-Appellant,

and

RUBY RUGGIERO, GATEWAY
PARK CONDOMINIUM, and
JP MORGAN CHASE BANK, N.A.,

        Defendants.

_______________________________

              Submitted January 22, 2018 – Decided March 6, 2018

              Before Judges Messano and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Monmouth County, Docket
              No. F-040989-14.

              John J. Hopkins, III, attorney for
              appellant.

              Pluese, Becker & Saltzman, LLC, attorneys
              for respondent (Robert F. Thomas, on the
              brief).
PER CURIAM

    In this residential mortgage foreclosure action, defendant

Dominic J. Ruggiero appeals from a January 20, 2017 order

denying his motion to stay the sheriff's sale on the mortgaged

premises and to vacate the final judgment in foreclosure.     We

affirm.

                                 I

    We glean the following from the record.    In 2005, defendant

borrowed $99,500 from Mortgage Electronic Registration Systems,

Inc. (MERS), nominee for GMAC Mortgage Corporation (GMAC), and

executed a mortgage in MERS' favor using his recently acquired

condominium as collateral.   In 2012, MERS assigned its interest

in the mortgage to GMAC.

    In March 2013, defendant made his last mortgage payment.

Plaintiff, then doing business as Green Tree Servicing, LLC, was

the servicer of the loan.    In May 2013, plaintiff sent defendant

a Notice of Default and Intent to Foreclose, but to no avail.

The notice states plaintiff was both the servicer of the loan

and the lender.   In June 2013, GMAC assigned the mortgage to

plaintiff.   In September 2014, plaintiff filed a complaint

against defendant to foreclose upon the mortgage.



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    On April 21, 2015, the Federal Trade Commission and the

Consumer Fraud Protection Bureau filed a complaint against

plaintiff in the United States District Court, District of

Minnesota, alleging, among other things, that it had engaged in

deceptive and aggressive collection tactics, and had failed to

adequately advise borrowers of loss mitigation options.

    Two days later, on April 23, 2015, the district court

issued a permanent injunction against plaintiff and ordered it

to pay a fine of forty-eight million dollars.   In addition to

other measures, the court ordered plaintiff to implement a plan

to provide "affected consumers" loss mitigation options.     In the

interim, plaintiff was ordered to suspend any pending

foreclosure sales to the extent necessary to permit such

consumers to be solicited and considered for loss mitigation

options.

    Defendant fit the definition of "affected consumer."

However, the record reveals that between March 2013 and July

2016, plaintiff sent defendant thirteen letters advising him

that he might be eligible for mortgage modification assistance.

Notwithstanding these solicitations, defendant declined to

follow through and determine if any mortgage modification plan

was suitable to him.


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       On June 26, 2015, plaintiff prevailed on its motion for

summary judgment.    Defendant's cross motion to dismiss the

complaint was denied.    It is not clear from the record the

specific grounds defendant asserted in support of his motion to

dismiss the complaint.

       In August 2015, plaintiff was renamed Ditech Financial,

LLC.   On June 10, 2016, a final judgment in foreclosure was

entered in plaintiff's favor in the amount of $99,246.32, plus

counsel fees of $1142.46.    Thereafter, on January 20, 2017, the

court entered an order denying defendant's motion to stay the

sheriff's sale and to vacate the final judgment in foreclosure.

       We discern from the court's findings denying the motion

that defendant asserted the same arguments he had raised in his

prejudgment motion to dismiss the complaint, plus two additional

arguments.    Those two new arguments were: (1) plaintiff violated

a federal statute, two federal regulations, and the April 23,

2015 order of injunction for allegedly failing to make loan

modification assistance programs available to its customers; and

(2) defendant was not permitted into the court's mediation

program.

       Because the arguments were the same, the court declined to

reconsider any argument that had been raised and decided in

defendant's motion to dismiss the complaint.    In essence, the
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court found defendant failed to provide any basis to reconsider

its decisions on such arguments.    See R. 4:49-2.

    The court rejected defendant's argument plaintiff failed to

provide mortgage modification assistance to defendant in

accordance with the injunction order, finding the record

demonstrated plaintiff had sent defendant thirteen letters

advising him of loss mitigation options and offered two trial

modification plans.   With respect to defendant's claim he had

not been permitted into the court's mediation program, the court

noted defendant failed to apply for mediation.

                                    II

    Defendant appeals from the January 20, 2017 order.1     Despite

the trial court's limited rulings, defendant raises a host of

arguments for our consideration:

         POINT I: PURSUANT TO THE FEDERAL SUPREMACY
         CLAUSE OF THE UNITED STATES CONSTITUTION
         AND ITS APPLICATION, EVERY STATE COURT MUST


1
   In his brief, defendant asserts he is appealing from "all
orders, judgments and writs entered after April 23, 2015," but
his notice and amended notice of appeal reflect he is appealing
from only the January 20, 2017 order. "[I]t is only the
judgments or orders or parts thereof designated in the notice of
appeal which are subject to the appeal process and review."
Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R.
2:5-1 (2018); see also Campagna ex rel. Greco v. American
Cyanamid Co., 
337 N.J. Super. 530, 550 (App. Div. 2001)
(refusing to consider an order not listed in the notice of
appeal).

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                                                           A-2143-16T3
        GIVE DEFERENCE TO A FEDERAL STAY WHICH HAS
        BEEN ENTERED AGAINST THIS PLAINTIFF.

        POINT II: THE TRIAL JUDGE VIOLATED THE
        HOLDINGS UNDER THE NEW JERSEY FAIR
        FORECLOSURE ACT BY ALLOWING A SERVICING
        COMPANY TO PROCEED WITH A FORECLOSURE.

        POINT III: THE PLAINTIFF HAS VIOLATED
        FEDERAL LAW IN ITS ADMINISTRATION OF
        FORECLOSURE PROCEEDINGS BY FAILING TO
        PARTICIPATE IN THE LOAN MODIFICATION PROGRAM
        AS REQUIRED UNDER THE DODD-FRANK ACT AND
        REGULATION Z WHICH IS ALSO A VIOLATION OF
        THE FAIR FORECLOSURE ACT (FFA).

        POINT IV: THE PLAINTIFF GREEN TREE FAILED TO
        FOLLOW THE DOCTRINE OF SUBSTANTIAL
        COMPLIANCE TO CURE THE BLATANT DEFECTS IN
        THEIR FORECLOSURE COMPLAINT.

        POINT V: THE PLAINTIFF IS NOT THE MORTGAGE
        HOLDER AND THEREFORE THIS COMPLAINT MUST BE
        DISMISSED.

     Here, the only decisions subject to challenge are those

the court made when it denied defendant's motion to stay the

sheriff's sale and to vacate the final judgment.   Those

decisions are: (1) declining to reconsider any argument

defendant raised in his motion to dismiss the complaint; (2)

rejecting defendant's claim plaintiff violated the order of

injunction by failing to provide him with mortgage modification

assistance; and (3) rejecting defendant's claim he had not been

permitted to participate in the court's mediation program.



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                                                           A-2143-16T3
    It is well settled an application to vacate a foreclosure

judgment is subject to an abuse of discretion standard.     United

States v. Scurry, 
193 N.J. 492, 502-03 (2008) (citing

Wiktorowicz v. Stesko, 
134 N.J. Eq. 383, 386 (E. & A. 1944)).

An abuse of discretion occurs where a decision was "made without

a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis."     Flagg v. Essex

County Prosecutor, 
171 N.J. 561, 571 (2002) (citation omitted).

Our courts also review the denial a motion to stay under this

standard.   See Avila v. Retailers & Mfrs. Distribution, 
355 N.J.

Super. 350, 354 (App. Div. 2002).

    To the extent any of the arguments defendant asserts on

appeal were considered by the court at the time defendant moved

to dismiss the complaint, we do not address them.    As previously

noted, when the court considered defendant's motion to stay the

sheriff's sale and to vacate the final judgment of foreclosure,

it observed that all but two of defendant's arguments had been

asserted when defendant moved for dismissal of the complaint; at

that time, defendant's arguments were considered and rejected.

When confronted with the same arguments in the motion that led

to the entry of the January 20, 2017 order, the court indicated

there was no reason to reconsider and decide any of those

decisions anew.
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                                                           A-2143-16T3
    On appeal, defendant does not assert the trial court erred

by failing to reconsider such decisions.   Even if he had,

defendant appeals from only the January 20, 2017 order and not

the order denying his motion to dismiss the complaint.    See W.H.

Industries, Inc. v. Fundicao Balancins, Ltda, 
397 N.J. Super.
 455, 458-59 (App. Div. 2008) (considering only the order denying

reconsideration because it was the only order designated in the

notice of appeal); see also Fusco v. Bd. of Educ. of City of

Newark, 
349 N.J. Super. 455, 461-62 (App. Div. 2002) (reviewing

only the denial of the plaintiff's motion for reconsideration

and refusing to review the original grant of summary judgment

because that order was not designated in the notice of appeal).

    Even if the court erred by not reconsidering and changing

any of its prior decisions, defendant failed to identify what

those previous decisions were and, more importantly, did not

provide a copy of the court's oral or written statement of

reasons on such decisions.   See R. 2:6-1(a)(1)(I) (the appendix

must contain parts of the record "essential to the proper

consideration of the issues.").   Without a statement of reasons,

we would have been unable to evaluate the trial court's

reasoning for those decisions.

    Defendant argues plaintiff violated the law by failing to

participate in a loan modification program.   We find no merit in
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this contention.    First, defendant does not provide the citation

to those laws or, more importantly, the specific provisions he

claims plaintiff violated.    See R. 2:6-2(a) (requiring a legal

argument be supported with reference to legal authority).

Second, defendant fails to set forth any argument articulating

how the trial court erred when it found the record established

plaintiff had participated in such programs and offered

defendant loss mitigation options.    Accordingly, we reject this

argument.

    The remaining arguments either were not raised before the

trial court or, for the reasons previously stated, were not

addressed by it.    As for the former, "[g]enerally, an appellate

court will not consider issues, even constitutional ones, which

were not raised below."    State v. Galicia, 
210 N.J. 364, 383

(2012) (citing Deerfield Estates, Inc. v. E. Brunswick, 
60 N.J.
 115, 120 (1972)).    As for the latter, defendant does not

challenge the court's decision to decline reconsidering its

previous decisions.

    Affirmed.




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