21ST MORTGAGE CORPORATION v. FRANK J. REED, III

NOT FOR PUBLICATION WITHOUT THE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-5370-15T3

21ST MORTGAGE CORPORATION,

        Plaintiff-Respondent,

v.

FRANK J. REED, III, his/her
heirs, devisees, and personal
representatives, and his, her,
their or any of their successors
in right, title and interest,

        Defendant-Appellant,

and

CHRISTINA A. REED, his/her
heirs, devisees, and personal
representatives, and his, her,
their or any of their successors
in right, title and interest,
TD BANK, f/k/a TD BANK, N.A.,
AMERICAN EXPRESS CENTURION BANK,
NEW CENTURY FINANCIAL SERVICES,
INC., UNSATISFIED CLAIM AND
JUDGMENT FUND, STATE OF NEW JERSEY,
UNITED STATES OF AMERICA,

     Defendants.
___________________________________

              Submitted January 29, 2018 - Decided March 14, 2018

              Before Judges Accurso and O'Connor.
         On appeal from Superior Court of New Jersey,
         Chancery Division, Burlington County, Docket
         No. F-008034-14.

         Frank J. Reed, III, appellant pro se.

         Diane Bradshaw (Helfand & Helfand), attorney
         for respondent.

PER CURIAM

    Defendant Frank J. Reed, III, appeals from the entry of

final judgment in this contested mortgage foreclosure action,

contending a prior dismissed foreclosure by plaintiff's

predecessor "hindered [him] from performing his obligations

under the subject note and mortgage."   Reed claims that had

plaintiff's predecessor "complied with its contractual and

statutory obligations before preemptively filing the prior

foreclosure" when Reed defaulted on his $1,000,000 mortgage

loan, he "would have brought the note current" and "continued to

pay off his mortgage."

    "It is [d]efendant's position in this current foreclosure

that [p]laintiff 21st Mortgage Corporation, as a successor

entity, is liable for and/or subject to, as a matter of set-off,

its predecessor's wrongful acts under New Jersey law."    We

disagree, and our review of the record convinces us that none of

Reed's arguments in support of that position is of sufficient




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merit to warrant discussion in a written opinion.   R. 2:11-

3(e)(1)(E).

    Reed borrowed $1,000,000 from Metrocities Mortgage, LLC in

2006, secured by residential property in Moorestown.    Engaged in

the business "of buying, improving and selling homes," Reed

claims, as "not unusual for a person engaged in a real estate

'flipping' business," he had "multiple mortgages and lines of

credit" then in effect, "and was involved in multiple

simultaneous home improvement projects with contractors for the

properties that he owned."   When Reed "was late on two or three

payments" in 2008, GMAC, then holder of Reed's mortgage, filed a

foreclosure complaint and lis pendens.   That action was

dismissed without prejudice several months later for GMAC's

failure to comply with the pre-suit notice requirements of New

Jersey's Fair Foreclosure Act, 
N.J.S.A. 2A:50-56.   Reed

contends, however, that the damage to "his cash flow and

liquidity" had already been done, causing "a chain reaction of

consequences."

    When plaintiff 21st Mortgage filed the current action in

2014, Reed had not made a mortgage payment since the loan went

into default in February 2008.   Reed answered the complaint,

pleading seventeen affirmative defenses, twelve counterclaims,

and a third-party complaint against Zucker, Goldberg and

                                 3                         A-5370-15T3
Ackerman, the law firm representing 21st Mortgage and which

filed the first foreclosure action on behalf of plaintiff's

predecessor.

    Judge Suter heard argument on a series of motions over the

course of two years, eventually entering summary judgment in

favor of plaintiff, dismissing defendant's counterclaims and

third-party complaint, striking his affirmative defenses and

referring the case to the foreclosure unit for the entry of

final judgment.   In a comprehensive eighteen page opinion, she

carefully explained her reasons for dismissing defendant's

claims of consumer fraud, negligence, breach of contract,

conversion, unjust enrichment, equitable estoppel, violation of

the Fair Debt Collections Practices Act, slander of title,

malicious prosecution, fraud on the court and quiet title, most

of which were time-barred or not properly pled against 21st

Mortgage.    She likewise explained her reasons for dismissing

defendant's third-party claim against plaintiff's lawyers and

striking his affirmative defenses.

    Defendant filed two motions for reconsideration and leave

to file an amended answer, each of which was denied for reasons

explained in written opinions, first by Judge Suter and then by

Judge Dow.   The court heard argument on defendant's opposition

to the entry of final judgment and, in another written opinion,

                                 4                          A-5370-15T3
found the "one valid objection" he raised to the form of the

notice of motion had been cured with no prejudice to him.

    Following entry of final judgment in June 2016 and several

months after defendant filed notice of appeal, he filed an

emergent motion appealing the trial court's refusal to stay

execution on the judgment, which we denied, finding no

probability of success on the merits.   We also noted the

continuing harm to plaintiff by a stay, as defendant had not

made a mortgage payment since 2008 and had resided in the

property since that time without any contribution to its

carrying costs.

    Eight months later in August 2017, we granted defendant's

motion to stay the sheriff's sale and remand to allow him to

petition the court to participate in the court's foreclosure

mediation program.   The trial court on remand approved the case

for mediation and directed defendant to file a completed

foreclosure mediation checklist, financial worksheet and his

"foreclosure prevention proposal" by October 3, 2017.    Plaintiff

voluntarily adjourned the sale to permit mediation to proceed.

Defendant, however, never submitted a completed mediation

package.   The property apparently went to sale at the end of

October.   The remand having concluded, we put the appeal back on

our calendar.

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    Having now reviewed the record and considered each of

defendant's claims of error, we affirm, substantially for the

reasons expressed by Judges Suter and Dow in their several

written opinions in this matter.   There is no question on this

record but that plaintiff proved execution, recording and non-

payment of the note on the undisputed facts, thereby

establishing its right to foreclose the mortgage.   Thorpe v.

Floremoore Corp., 
20 N.J. Super. 34, 37 (App. Div. 1952).     The

loan having been in default for ten years, while defendant has

remained in possession of the property without payment of the

costs of taxes or insurance, equity does not demand a different

result.

    Affirmed.




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