PNC BANK, NATIONAL ASSOCIATION v. YOEL OSHRI,

NOT FOR PUBLICATION WITHOUT THE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-5121-15T4

PNC BANK, NATIONAL
ASSOCIATION,

           Plaintiff-Respondent,

v.

YOEL OSHRI, a/k/a JOEL
OSHRI,

          Defendant/Third-Party
          Plaintiff-Appellant,

and

HIGH POINT AT LAKEWOOD
CONDOMINIUM
ASSOCIATION INC.,

           Defendant,

v.

MATTLEMAN, WEINROTH &
MILLER PC, MARTIN S.
WEINBERG, ESQ., and ALICIA M.
SANDOVAL, ESQ.,

     Third-Party Defendants.
______________________________
            Argued October 2, 2018 – Decided October 16, 2018

            Before Judges Geiger and Firko.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Ocean County, Docket No. F-
            015407-14.

            Yoel Oshri, appellant, argued the cause pro se.

            Robert W. Williams argued the cause for respondent
            (Mattleman, Weinroth & Miller, PC, attorneys; Robert
            W. Williams, of counsel and on the brief).

PER CURIAM

      Defendant/third-party plaintiff Yoel Oshri appeals from a series of orders

and final judgment in this residential mortgage foreclosure action. Specifically,

he appeals orders: granting summary judgment to plaintiff PNC Bank, National

Association (PNC); striking defendant's answer and affirmative defenses;

entering default; returning the case to the Office of Foreclosure to proceed as an

uncontested matter; dismissing defendant's counterclaim and third-party

complaint; dismissing defendant's order to show cause with prejudice; denying

reconsideration; and the final judgment entered against him. For the reasons

that follow, we affirm.

      On August 20, 2004, Oshri borrowed the sum of $65,000 from PNC and

executed a variable interest rate promissory note, with an initial rate of 5.490

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percent, payable in 180 monthly installments. To secure payment of the note,

Oshri executed a mortgage in favor of PNC affecting his residence in Lakewood,

New Jersey. The mortgage was recorded on September 7, 2004. PNC is the

original lender and remains the holder of the note and mortgage which were not

assigned.

      Oshri defaulted on the note and mortgage by failing to make the payment

due on January 5, 2013. As a result, the entire outstanding principal amount,

plus interest, fees, costs, and advances, was accelerated and fell due.

      PNC filed its complaint on April 21, 2014. Oshri filed a contesting answer

alleging PNC improperly seized funds from his depository account that had been

established to pay the mortgage loan. He claims the seizure of those funds

caused the resulting payment default.

      The parties engaged in discovery, with Oshri propounding interrogatories

and a demand for production of documents. Oshri moved to compel answers to

discovery and to extend discovery. Determining that PNC provided adequate

responses to discovery demands, the trial court denied the motion to compel

discovery but granted a sixty-day extension of discovery.

      Thereafter, Oshri sought to depose three bank representatives.         PNC

objected to the depositions. Oshri moved to compel further discovery responses


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and the three depositions. PNC cross-moved for a protective order to quash the

deposition notice, claiming the individuals sought to be deposed were not

involved in the servicing or handling of the mortgage account. Oshri's motion

to compel was denied and PNC's motion for a protective order was granted.

      Oshri filed an untimely amended answer, counterclaim, and third-party

complaint without PNC's consent or leave of the court. PNC moved to dismiss

the counterclaims and to strike defendant's contesting answer. The trial court

granted PNC's motions, dismissing his counterclaims, striking his answer as

non-contesting, entering default against him, and transferring the case to the

foreclosure unit as an uncontested matter. The trial court denied Oshri's motion

for reconsideration. Final judgment of foreclosure was entered against Oshri in

the amount of $47,113.36. This appeal followed.

      In a prior civil action, High Point at Lakewood Condominium

Association, Inc. (High Point) sued Oshri, a unit owner in the condominium

complex, to collect unpaid fees and other accrued charges (Docket No. L-1670-

06). Oshri counterclaimed against High Point and filed a third-party complaint

against the law firm of Honig & Greenberg, LLC, principally alleging violations

of the Fair Debt Collection Protection Act (FDCPA), 15 U.S.C. §§ 1692 to -

1692p. PNC was not a party in that case.


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      The facts and procedural history in that case are set forth in High Point at

Lakewood Condo. Ass'n v. Oshri, Docket No. A-4355-08 (App. Div. December

17, 2010). The trial court dismissed the third-party complaint and, following a

two-day proof hearing, entered an amended judgment against Oshri in the

amount of $9902, plus $1980.40 in amended counsel fees and costs (Judgment

No. J-313128-2006). Id. (slip op. at 2, 4). After filing liens against Oshri's

property by invocation of  N.J.S.A. 46:8B-17, PNC retained the firm of Honig &

Greenberg to pursue collection of the judgment. Id. at 3. In that case, Oshri did

not dispute he had not paid the charges imposed by High Point , but instead

maintained the charges were unjustified and that High Point had not fulfilled its

contractual obligations.     Ibid.   The appellate panel affirmed the amended

judgment and dismissal of the third-party complaint, holding Oshri's numerous

arguments manifestly lacked merit and did not warrant discussion in a written

opinion.   Id. at 4.       The panel vacated and remanded dismissal of the

counterclaim. Id. at 16.

      Subsequently, High Point obtained a writ of execution on its judgment

under Docket No. L-1670-06, and had the Ocean County Sheriff levy on Oshri's

depository bank account at PNC, allegedly rendering him unable to remit the

mortgage payments. At the time of the levy, the sum of $2724.23 was on deposit


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in the account. On November 28, 2012, PNC Bank put a hold on the account

until further instruction from the court.    Thereafter, High Point moved for

turnover of funds. Oshri moved to quash the writ of execution. The trial court

ordered PNC Bank to turn over the sum of $2724.23 levied upon to the Sheriff,

denied Oshri's motion to quash the writ of execution, and denied the other relief

sought by Oshri. Although Oshri was successful in obtaining a stay of any

turnover order, the record does not indicate he was successful in setting aside

the levy on his bank account.

      High Point also attempted to enforce its judgment through a sheriff's sale.

Oshri filed an interlocutory appeal and obtained several orders from the

Appellate Division holding High Point should not have been permitted to take

action in aid of execution because the matter was not ripe for execution until the

counterclaim was resolved.

      Oshri raises numerous arguments, some of which are undiscernible. Oshri

argues the writ of execution served on PNC was fraudulent and defective; the

Sheriff had no authority when he served the defective writ; the trial court erred

by granting the motion to strike the contesting answer and affirmative defenses

and entering default because the motion did not comply with Rule 4:46-1; he

was denied due process by not being permitted to depose three essential


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employees of PNC; and the trial court erred by dismissing his counterclaim

which alleged violations of the FDCPA.

      We affirm the orders and judgment on appeal substantially for the reasons

expressed by the trial court. We add the following comments.

      We review orders limiting discovery for an abuse of discretion.

Pomerantz Paper Corp. v. New Cmty. Corp.,  207 N.J. 221, 371 (2011) (citing

Bender v. Adelson,  187 N.J. 411, 428 (2006)). "That is, '[w]e generally defer to

a trial court's disposition of discovery matters unless the court has abused its

discretion or its determination is based on a mistaken understanding of the

applicable law.'" Ibid. (quoting Rivers v. LSC P'ship,  378 N.J. Super. 68, 80

(App. Div. 2005)). We discern no abuse of discretion by the trial court in

sustaining PNC's objection to the deposition of the three PNC employees who

had no knowledge of the mortgage account or the foreclosure proceedings.

      Oshri argues the trial court erred by granting the motions to dismiss his

counterclaims and strike his contesting answer and affirmative defenses because

the motions were returnable only two days before the November 12, 2015

scheduled trial date, in violation of Rule 4:46-1, which requires summary

judgment motions to be made returnable not less than thirty days before the trial

date. Oshri did not oppose the merits of the motions or object to the timeliness


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of the motions. Accordingly, the motions were properly deemed unopposed.

We further note PNC filed and served its motions at least twenty-eight days

before the return dates. See R. 4:46-1.

      Oshri first objected to the timeliness of PNC's motions in his motion for

reconsideration. A motion for reconsideration "is properly denied if based on

facts known to the movant prior" to the return date of the underlying motion or

if "based on new legal arguments that were not presented to the court in the

underlying motion." Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on

R. 4:49-2 (2019) (citations omitted).

      In any event, Oshri has not demonstrated any prejudice resulting from the

motion return dates. The trial court is not precluded from deciding a dispositive

motion returnable less than thirty days before the scheduled trial date. Indeed,

the rule provides an escape valve requiring applications for trial adjournments

to be liberally granted if the motion decision is not rendered at least ten days

before the trial date. R. 4:46-1. Here, of course, there was no trial as the motions

were granted.

      Oshri attempts to exonerate his nonpayment default by claiming the writ

of execution leading to the levy on his depository bank account was fraudulent




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and defective and that the Sheriff had no authority to impose the levy when he

served the defective writ. We are unpersuaded by these arguments.

      PNC was not a party to the collection action brought by High Point against

Oshri. "When a levy is made on a bank account, 'the funds levied are technically

no longer the bank's or debtor's to control.'" Pitney Bowes Bank, Inc. v. ABC

Caging Fulfillment,  440 N.J. Super. 378, 385 (App. Div. 2015) (quoting Sylvan

Equip. Rental Corp. v. C. Washington & Son, Inc.,  292 N.J. Super. 568, 574

(Law Div. 1995)). "They are under the dominion of a court officer." Sylvan,

 292 N.J. Super. at 574.

      PNC was obligated to honor the sheriff's levy on Oshri's bank account

unless the levy was vacated, the funds were deemed exempt, or the court ordered

turnover of the funds. Had PNC not honored the sheriff's levy, it would have

been liable to High Point. Ibid. Oshri's purported inability to remit mortgage

payments to PNC as a result of the levy is not a defense to the foreclosure.

      Appellant's remaining arguments are without sufficient merit to warrant

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

      Affirmed.




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