BANCOF AMERICA FUNDING CORPORATION MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2007-C, U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE v. KAP YEON JUN and WON SOON CHOI wife and husband

NOT FOR PUBLICATION WITHOUT THE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-4202-15T2

BANC OF AMERICA FUNDING
CORPORATION MORTGAGE PASS-
THROUGH CERTIFICATES, SERIES
2007-C, U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE,

        Plaintiff-Respondent,

v.

KAP YEON JUN and WON SOON CHOI,
wife and husband,

     Defendants-Appellants.
___________________________________

              Submitted September 18, 2017 – Decided February 20, 2018

              Before Judges Sabatino and Ostrer.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Bergen County, Docket No.
              F-003274-15.

              Law Offices of Park & Kim, LLC, attorneys for
              appellants (Kyungjoo Park, on the brief).

              Sandelands Eyet LLP, attorneys for respondent
              Banc of America Funding Corporation Mortgage
              Pass-Through Certificates, Series 2007-C,
              U.S. Bank National Association, as Trustee
              (Raymond Kim, on the brief).

              Parker McCay PA, respondent pro se (Gene
              Mariano, of counsel; Stacy L. Moore, Jr., on
              the brief).
PER CURIAM

      This appeal arises out of a voluntarily dismissed foreclosure

complaint.    The court dismissed the complaint and counterclaims

without prejudice.         The trial court thereafter denied, on a motion

for reconsideration, defendants' request for sanctions.                  We affirm

that order on appeal.

      Shortly after defendant Kap Yeon Jun filed her answer and

counterclaim, plaintiff sought leave of court to dismiss its

complaint without prejudice.              Plaintiff did so after its newly

substituted counsel confirmed what Jun had been saying, with

documentary       support,    since      she   successfully   moved   to    vacate

default: plaintiff had assigned the mortgage to another bank months

before it filed suit.              Plaintiff sought dismissal, although it

claimed to still possess the note.

      Jun and her husband, co-defendant Won Soon Choi, objected to

the dismissal.      They complained that predecessor counsel had acted

unethically in failing to diligently examine the title records;

failed to comply with Rules 1:4-8(a), 1:5-6(c)(1)(E), and 4:64-1;

and ignored their evidence of the mortgage assignment.                         They

alleged that a document execution specialist for the mortgage

servicer was also delinquent.             They sought sanctions against the

prior attorneys and their firm, and the bank employee, including

an   award   of    fees,     and    an   order   barring   them   from   handling

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foreclosure matters.      Defendants also complained that plaintiff

had failed to respond to their pending discovery demands. Finally,

they objected to the form of the dismissal order, noting that the

mortgage assignee was improperly substituted in as plaintiff.

      The court entered two orders dismissing the complaint and the

counterclaims without prejudice and without costs.              The second

amplified and corrected the first order, by substituting the

original plaintiff in the caption as opposed to the assignee, and

by noting that defendants' pending discovery motion was dismissed

as moot.

      Defendants thereafter sought reconsideration.             In renewing

their argument for sanctions, they added reference to the frivolous

litigation statute, 
N.J.S.A. 2A:15-59.1; the court's inherent

powers; and, by analogy, the power to award fees to plaintiffs

under Rule 4:42-9(a)(4).        Defendants also cited an unpublished

appellate opinion which had affirmed the award of fees and costs

in   connection   with   the   voluntary   dismissal   of   a   foreclosure

complaint where the plaintiff lacked a valid assignment.           In doing

so, however, defendants did not refer to Rule 4:37-1, although

that was the basis for the award in that other case.

      During argument, defendants' counsel confirmed that he did

not send a so-called "safe harbor letter" under Rule 1:4-8(b)(1).

The court explored whether dismissal of the counterclaims could

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prejudice defendants, and if a statute of limitations defense

could be raised upon revival of the claims.        The court learned the

counterclaims   raised   causes    of     action   pertaining   to    the

origination of the loan in 2007.       Thus, absent a tolling argument,

the limitations period had already passed.

     The judge set forth his reasons for denying the motion in a

written statement, which we quote a length:

               Defendants have not shown a palpably
          incorrect basis for the Court's entry of the
          January 4, 2016 Order. Nor was there a showing
          that the Court failed to consider the
          significance of competent probative evidence.
          Additionally, Defendants are arguing for an
          award of attorney fees claiming the original
          filing was frivolous.

               Defendants allege they are entitled to
          attorney's fees under the unpublished decision
          . . . .    The decision . . . however, only
          recognized that in permitting a voluntary
          dismissal pursuant to R. 4:37-1 a court could
          under the Rule condition the relief upon
          payment of defendant's attorney's fees. Such
          a condition is in the discretion of the court.
          This Court notes that such a condition was not
          requested by Defendants nor imposed when the
          voluntary dismissal of the foreclosure action
          was permitted.

               Defendants further argued that Plaintiff
          did not have a prima facie right to foreclose.
          See Thorpe v. Floremoore Corp., 20 N.J. Super.
          34, 37 (App. Div. 1952). As such the filing
          of the complaint was frivolous warranting an
          award of fees. Defendants challenge the chain
          of assignment of the mortgage arguing that
          Plaintiff does not have standing. However, a
          defendant, who is not a party to the

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assignment of a mortgage, does not have
standing to challenge that assignment.     See
Bank of New York v. Raftogianis, 
418 N.J.
Super. 323, 350-51 (Ch. Div. 2010). Here, the
Court thoroughly addressed the issue of
standing. Whether Plaintiff had standing to
foreclose was raised in the initial motion and
Defendants have offered nothing new that would
warrant reconsideration.

     Defendants also argue that attorney's
fees should be imposed as the original
Complaint was frivolous. However, sanctions
are not warranted. First, because Defendants
failed to comply with R. 1:4-8's safe harbor
provision.    Defendants never provided the
notice required under R. 1:48(b).     Even if
Defendants complied with the procedural
requirements,     Defendants     have      not
demonstrated that Plaintiff's foreclosure
complaint constituted a frivolous action.

N.J.S.A. 2A:15-59 provides that a complaint
is frivolous if "commenced, used or continued
in bad faith, solely for the purpose of
harassment, delay or malicious injury."     In
this matter, Plaintiff's Complaint on its face
establishes to the satisfaction of the Court
that this case was not filed for an improper
purpose.   Therefore, Defendants' motion for
sanctions is denied.

     As   to   the   issue    of   Defendants'
counterclaims,   originally,   the   voluntary
dismissal was entered by the Court through an
order dated December 11, 2015. Following the
entry of that order, Defendants objected to
the form.       Defendants[] noted to two
administrative errors.      First, Defendants
stated that "the first part of Plaintiff's
name is not 'Bank' but 'Banc,'" and, second,
that "Kivitz McKeever Lee, P.C." should be
replaced with "KML Law Group, PC."       As a
result, Plaintiff's counsel submitted a
revised [] December 11, 2015 Order.        The
revised order reflected the two administrative

                      5                          A-4202-15T2
             errors noted by Defendants, but was otherwise
             identical in substance.     The Court received
             no objection to the form of the proposed order
             and entered it on January 4, 2016. The January
             4, 2016 and December 11, 2015 Orders both
             state "all claims and counterclaims in this
             matter    are    hereby    dismissed   without
             prejudice." Therefore, there is no basis to
             reconsider the Court's Order to dismiss
             without prejudice the counterclaim along with
             Plaintiff's Complaint. If Defendants wish to
             pursue their claims, they can bring them in
             the Law Division.

      On    appeal,    defendants      essentially     renew   arguments        they

presented to the trial court with regard to sanctions under Rule

1:4-8, 
N.J.S.A. 2A:15-59.1, Rule 4:42-9(a)(4), and the court's

inherent powers.       Defendants for the first time expressly argue

that the court was obliged to condition dismissal upon the award

of   fees   under     Rule   4:37-1.         They   also   contend   that     their

counterclaims should not have been dismissed.

      We affirm, substantially for the reasons set forth in the

trial court's opinion, subject to the following brief comments

regarding voluntary dismissal of actions after service of an

answer.     Rule 4:37-1(b) provides that a plaintiff may voluntarily

dismiss its complaint only by "leave of court and upon such terms

and conditions as the court deems appropriate."                Furthermore, if

a counterclaim had been previously filed, as was here, "the action

shall not be dismissed against the defendant's objection unless



                                         6                                  A-4202-15T2
the counterclaim can remain pending for independent adjudication

by the court."        Ibid.

      The   court     is   empowered    to   award   a   defendant      fees   as   a

condition of a voluntary dismissal without prejudice to protect

the defendant against duplication of costs. See Mack Auto Imports,

Inc. v. Jaguar Cars, Inc., 
244 N.J. Super. 254, 260 (App. Div.

1990).     On the other hand, when the prospect of renewed litigation

is slight, a court may deem a fee award unnecessary.                     See Union

Carbide Corp. v. Litton Precision Prods., Inc., 
94 N.J. Super.
 315, 317-18 (Ch. Div. 1967) (applying R. 4:42-1(b), predecessor

to Rule 4:37-1(b)).

      The award of fees as a condition of dismissal, as with counsel

fee   awards    generally,      is    left   to   the    trial    court's      sound

discretion, which we shall disturb "on the rarest occasions, and

then only because of a clear abuse . . . ."                Rendine v. Pantzer,


141 N.J. 292, 317 (1995).            A reviewing court intervenes when the

trial court relies on "irrelevant or inappropriate factors" or

engages in a "clear error in judgment . . . ."                   Garmeaux v. DNV

Concepts, Inc., 
448 N.J. Super. 148, 155-56 (App. Div. 2016).

      It    appears    likely   that    defendants       will    face   a   revived

foreclosure complaint, as plaintiff submits that defendants have

failed to make any payments on their mortgage note for several

years.     Nonetheless, we shall not disturb the trial court's denial

                                         7                                  A-4202-15T2
of defendants' motion.          Defendants failed to submit a timely

request for fees as a condition of voluntary dismissal under Rule

4:37-1.     Defendants omitted any reference to the Rule in their

initial opposition to the voluntary dismissal, instead seeking

sanctions pursuant to Rule 1:4-8 and 
N.J.S.A. 2A:15-59.1, among

other grounds.

      Notably, defendants represented themselves in the initial

proceedings, including Choi's answer, Jun's motion to vacate, and

her subsequent answer and counterclaims.         Even upon their motion

for reconsideration, defendants did not file a certification of

services from counsel, which would have enabled the trial court

to determine what portion of fees were likely to be duplicated

upon the revival of the suit.         Presumably, if a second lawsuit is

brought, a party will not incur the full amount of fees borne in

the first case, to the extent previously drafted documents may be

recycled without significant revision.

      In sum, we discern no error in the trial court's denial of

defendants' newly minted effort to secure fees under Rule 4:37-

1(b) on their motion for reconsideration.

      We also acknowledge that the court's order of voluntary

dismissal deviated from the command in Rule 4:37-1(b) to preserve

previously pending counterclaims.          Instead, the court's January

4,   2016   order   dismissed   the   counterclaims   without   prejudice.

                                       8                           A-4202-15T2
However, defendants did not raise this issue in their brief in

support of their motion for reconsideration.

     We may "decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a

presentation is available unless the questions so raised on appeal

go to the jurisdiction of the trial court or concern matters of

great public interest."   Nieder v. Royal Indem. Ins. Co., 
62 N.J.
 229, 234 (1973) (internal quotation marks and citation omitted).

Neither the court's jurisdiction, nor a great public interest is

at stake.   However, to avoid any potential prejudice from the

court's dismissal of the counterclaims, we order that if defendants

revive the counterclaims as a free-standing action against the

initial plaintiffs within sixty days (or if they have already

filed such an action or filed the counterclaims in a revived

foreclosure action), the filing shall relate back to the date of

filing of the original counterclaims.

     Affirmed.




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