BANK OF AMERICA, N.A. v. ENRIQUE ENCARNACION

NOT FOR PUBLICATION WITHOUT THE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-3448-16T3

BANK OF AMERICA, N.A.,

        Plaintiff-Respondent,

v.

ENRIQUE ENCARNACION and MR.
RAMIREZ, husband of MARYLYN
RAMIREZ,

        Defendants,

and

MARLYN RAMIREZ,

     Defendant-Appellant.
______________________________

              Submitted May 8, 2018 – Decided May 23, 2018

              Before Judges Reisner and Gilson.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Hudson County, Docket No.
              F-039826-15.

              Marlyn Ramirez, appellant pro se.

              Parker McCay, PA, attorneys for respondent
              (Gene Mariano, of counsel; Stacy L. Moore,
              Jr., on the brief).

PER CURIAM
       In this foreclosure case, defendant Marlyn Ramirez1 appeals

from the January 11, 2017 final judgment of foreclosure in favor

of plaintiff Bank of America, N.A. (BANA).              Defendant also appeals

from    the   following     interlocutory         orders:   April    15,     2016,

dismissing defendant's counterclaims; July 26, 2016, granting

summary judgment and striking defendant's contesting answer and

affirmative defenses; August 9, 2016, denying defendant's cross-

motion to dismiss the complaint as untimely; February 23, 2017,

remanding the case to the Office of Foreclosure to consider

plaintiff's motion for final judgment; March 31, 2017, denying

defendant's motion to transfer the case to mediation.                 We affirm.

                                      I

       In support of its summary judgment motion, plaintiff filed a

certification of an assistant bank vice president, based on her

personal knowledge.        Copies of all documents referenced in the

certification    were     attached    as       exhibits.    According      to   the

certification,    on      August     19,       2010,   defendant    and    Enrique

Encarnacion (collectively, borrowers) borrowed $256,545 from the

First National Bank of Chester County, secured by a note and a

mortgage on their house in Kearny.               The mortgage was assigned to



1
   Marlyn Ramirez is the only appellant.               We will refer to her as
"defendant."

                                           2                               A-3448-16T3
plaintiff BANA on April 10, 2015.             BANA had the note in its

possession when it later filed the foreclosure complaint.                  The

borrowers defaulted on the mortgage on February 1, 2015. Plaintiff

sent the borrowers a Notice of Intent to Foreclose (NOI), dated

July 16, 2015, setting forth a detailed list of the arrears.

Plaintiff filed a foreclosure complaint on December 10, 2015.

     Defendant filed an answer to the complaint.            She also filed

a counterclaim, setting forth claims under the Truth in Lending

Act, the Fair Foreclosure Act, the National Housing Act, the

Federal Fair Credit Reporting Act, and the Federal Fair Debt

Collection Practices Act, as well as general allegations of fraud

and breach of contract with no specific factual support.                   The

entire counterclaim appeared to be boilerplate.                  In response,

plaintiff filed a motion to dismiss the counterclaims. Plaintiff's

motion was supported by a brief setting forth in detail the reasons

why the counterclaims were barred by the statute of limitations,

based on a statute that did not give rise to a private cause of

action, or otherwise without merit.          On April 15, 2016, the trial

court granted the motion to dismiss, noting that the order was

entered for the reasons stated in plaintiff's motion brief.

     On   July   26,   2016,   the   trial    court    granted    plaintiff's

unopposed summary judgment motion, and struck defendant's answer.

In a written statement of reasons, the                court explained that

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plaintiff's proofs established that it was in possession of the

note and mortgage, and that defendant was in default and had not

interposed any viable defenses to the foreclosure.

     On August 9, 2016, the trial court denied defendant's cross-

motion to dismiss the complaint, noting that the cross-motion and

defendant's opposition to plaintiff's summary judgment motion were

filed out of time, and that summary judgment had been granted on

July 22, 2016.

        On February 23, 2017, the trial court denied defendant's

motion to fix the amount due and for other relief, and returned

the case to the Office of Foreclosure to consider plaintiff's

motion for final judgment.    In a written statement of reasons, the

court explained that defendant's motion was based on her mistaken

belief that plaintiff was seeking reimbursement for $42,198.88 for

tax payments made by plaintiff.   As the judge indicated, plaintiff

was only seeking reimbursement for $11,023.27 for tax payments,

which was actually less than the amount defendant claimed was due.

     The final judgment of foreclosure was entered on January 11,

2017.    Defendant filed a motion for court-ordered mediation on

January 30, 2017.     On March 31, 2017, the trial court denied the

motion as untimely.     The court noted that the motion should have

been filed within sixty days after the service of the foreclosure



                                  4                          A-3448-16T3
complaint,      and   defendant       had   not   cited     any   exceptional

circumstances for the late filing.

                                      II

     On this appeal, defendant raises these arguments: (1) the

trial   court   failed   to    make    findings   of   fact   supporting   the

dismissal of the counterclaim; (2) summary judgment should not

have been granted because plaintiff lacked standing to file the

foreclosure complaint;        (3) summary judgment should not have been

granted because there was insufficient evidence that plaintiff

served defendant with the NOI; (4) summary judgment should not

have been granted because there was insufficient evidence that the

borrowers defaulted on the loan; (5) the trial court should have

considered defendant's cross-motion; and (6) plaintiff submitted

insufficient evidence in support of its motion for final judgment.

     We review the grant of summary judgment de novo.                Davis v.

Brickman Landscaping, Ltd., 
219 N.J. 395, 405 (2014).               Arguably,

defendant waived her arguments concerning the summary judgment

motion when she failed to file timely opposition.                 However, we

have considered her arguments.          Based on our de novo review of the

record, her contentions are without merit, and we affirm for the

reasons cogently stated by the trial court in its statement of

reasons.     Defendant's arguments are without sufficient merit to

warrant further discussion.           R. 2:11-3(e)(1)(E).

                                        5                             A-3448-16T3
     We affirm the order remanding the case to the Office of

Foreclosure, for the reasons stated by the trial court.            We find

no abuse of the trial court's discretion in declining to consider

defendant's untimely cross-motion.

     Ordinarily, a trial court should issue a statement of reasons

rather    than   incorporating   by   reference    arguments    made   in   a

litigant's brief.     See G.M. v. C.V., 
453 N.J. Super. 1, 17 (App.

Div. 2018). However, in this case, there was no doubt or ambiguity

about the reasons, which were clearly stated in plaintiff's brief,

and thus we have no difficulty in engaging in appellate review of

the trial court's decision.      Defendant's counterclaim was a litany

of boilerplate, untethered to the facts of the case, and her claims

were clearly without merit.      R. 2:11-3(e)(1)(E).

     In summary, the borrowers have not paid the mortgage since

February 2015, and they have no valid defenses to the foreclosure

action.      Plaintiff   submitted    legally     competent    evidence     to

establish its standing to file the foreclosure complaint, the

borrowers' default, the amount due, and plaintiff's entitlement

to a judgment of foreclosure.

     Affirmed.




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