THE BANK OF NEW YORK MELLON v. MARGARET NOEL

NOT FOR PUBLICATION WITHOUT THE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-2558-16T2

THE BANK OF NEW YORK
MELLON, f/k/a THE BANK OF
NEW YORK AS TRUSTEE FOR THE
CERTIFICATE HOLDERS OF THE
CWABS, INC., ASSET-BACKED
CERTIFICATES SERIES 2006-14,

        Plaintiff-Respondent,

v.

MARGARET NOEL and MICHAEL
NOEL,

     Defendants-Appellants.
________________________________

              Submitted January 31, 2018 – Decided March 19, 2018

              Before Judges Koblitz and Manahan.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Ocean County, Docket No.
              F-002766-15.

              Margaret Noel, appellant pro se.

              Pluese, Becker & Saltzman, LLC, attorneys for
              respondent (Stuart H. West, on the brief).

PER CURIAM
       In this mortgage foreclosure matter, defendants Margaret and

Michael Noel (collectively, the Noels) appeal from an order

entered by the Chancery Division denying a motion to transfer the

foreclosure action to the Law Division.              The Noels argued before

the Chancery Division that despite filing what was deemed to be

a "non-contesting" answer by the Office of Foreclosure, and

despite a denial of their motion to dismiss the complaint based

upon    lack    of   standing,   they       never   had   their   defenses   and

counterclaims adjudicated.        We disagree and affirm.

       As we write for the parties who are familiar with the factual

and procedural history, we briefly recite the following.               On July

25, 2006, the Noels executed a 6.875% adjustable rate note in the

amount of $405,000 in favor of Countrywide Home Loans, Inc.

(Countrywide).       To secure payment, the Noels delivered to MERS,

as nominee for Countrywide, a mortgage encumbering real property

located in Point Pleasant, New Jersey.                The mortgage was duly

recorded on August 10, 2006, in the Ocean County Clerk's Office.

       In September 2008, MERS executed an Assignment of Mortgage

(AOM) into The        Bank of New York (BNY), as trustee for the

certificate holders of CWABS, Inc., Asset-Backed Certificates

(CWABS).       The AOM was thereafter recorded on September 18, 2008.

On November 6, 2014, a corrective AOM was executed from MERS to

The Bank of New York Mellon f/k/a the BNY, as trustee for the

                                        2                               A-2558-16T2
    certificate holders of CWABS.         The corrective AOM added the words

    in italics and was recorded on November 24, 2014.                       As of that

    date, BNY was the mortgagee of record.

         After two years of payments, the Noels applied for and

    received a loan modification.           Commencing on December 1, 2009,

    the Noels failed to make the contractually due payment pursuant

    to   the    note,   mortgage    and     modification,          or     any   payments

    thereafter.

         On June 3, 2013, notices of intent to foreclose were sent to

    the Noels.     BNY elected to exercise its contractual right to

    accelerate    the   balance    due    under       the   note    and    mortgage     by

    instituting the underlying foreclosure on January 23, 2015.

         The Noels filed an answer on March 6, 2015 that was deemed

    "non-contesting" by the Office of Foreclosure.1                 On June 26, 2015,

    the Noels filed a motion to dismiss the complaint based upon BNY's

    alleged lack of standing.           That motion was denied on August 14,

    2015.

         On the date of the sheriff's sale, the Noels used their

    statutory    adjournment      and    filed    a    motion      to   "[g]rant[]      an



1
   An answer in foreclosure is deemed non-contesting if "none of
the pleadings responsive to the complaint either contest the
validity or priority of the mortgage or lien being foreclosed or
create an issue with respect to plaintiff's right to foreclose
it[.]" R. 4:64-1(c)(2).

                                           3                                     A-2558-16T2
exception to the Entire Controversy Doctrine and permit[] the

[d]efendant [Margaret Noel] to pursue her claims in the Law

Division[.]"    The BNY opposed the motion.         On February 17, 2017,

the Chancery judge denied the motion by order of the same date.

On appeal, the Noels argue that it was error to deny them the

relief sought by their motion.

    Having considered the record on appeal in light of the

arguments   raised   by   defendants,   we   find    the   arguments   lack

sufficient merit to warrant discussion in a written opinion.              R.

2:11-3(e)(1)(E).     We add only that the Noels were provided with

the opportunity to challenge the foreclosure action.           They filed

a non-contesting answer and challenged BNY's standing, which

relief, as noted, was denied.

    Finally, as we recently held, the failure to raise a germane

claim in a foreclosure action bars that claim.             Adelman v. BSI

Fin. Servs., ___ N.J. Super. ___, ___ (App. Div. 2018)(slip op.

at 1).

    Affirmed.




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