BAYVIEW LOAN SERVICING LLC v. THOMAS RAUCH

NOT FOR PUBLICATION WITHOUT THE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-4384-18T1

BAYVIEW LOAN SERVICING,
LLC,

          Plaintiff-Respondent,

v.

THOMAS RAUCH and DAWN
RAUCH f/k/a DAWN FAIVRE,

     Defendants-Appellants.
______________________________

                    Submitted March 17, 2020 – Decided April 1, 2020

                    Before Judges Fisher and Accurso.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Bergen County, Docket No. F-
                    023621-17.

                    Law Offices of Ian J. Hirsch & Associates, LLC,
                    attorneys for appellants (Ian J. Hirsch and Borce
                    Martinoski, on the brief).

                    Schiller, Knapp, Lefkowitz & Hertzel, LLP, attorneys
                    for respondent (Richard A. Gerbino, on the brief).

PER CURIAM
        Defendants Thomas and Dawn Rauch appeal a post-judgment order

entered in this foreclosure action.           The order under review denied

reconsideration of an earlier order by which, among other things, the chancery

judge refused to continue restraints that barred transfer of the property to the

purchaser at a sheriff's sale.     Defendants argue that the judge abused her

discretion by refusing to vacate the sheriff's sale and by failing to conduct a

hearing into defendants' allegation of an agreement to reinstate the mortgage.

We disagree and affirm.

        Plaintiff Bayview Loan Servicing, LLC, the assignee of a mortgage on

property then owned by defendants in New Milford, commenced this foreclosure

action in October 2017. After defendants defaulted, plaintiff applied for entry

of a final judgment.

        In late July 2018, while plaintiff's application for final judgment was still

pending, defense counsel requested from plaintiff's counsel a reinstatement

amount; plaintiff's counsel wrote to advise the reinstatement amount was

$43,709.88, if paid prior to August 15, 2018. No payment was made by that

time.

        Final judgment was entered on August 10, 2018.           Later that month,

defense counsel requested an updated reinstatement amount. Plaintiff's counsel


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wrote on September 5, 2018, advising a reinstatement amount of $49,087.93, if

received by September 24, 2018. No payment was made by that date but, on

October 16, 2018, defense counsel forwarded to plaintiff's counsel a check in

the amount of $36,000. Defense counsel's cover letter stated that "[t]he balance

should be forthcoming." Plaintiff's counsel, however, returned the check with a

letter explaining that partial payment was unacceptable. An updated

reinstatement letter was sent to defense counsel a few days later.

        In December 2018, defense counsel again sought an updated reinstatement

figure, and within days of receiving that information, defense counsel requested

a payoff figure.     Anticipating a payoff of the outstanding debt, plaintiff

postponed the February 1, 2019 sheriff's sale until March 1, 2019. On February

1, defense counsel requested another updated reinstatement amount, which was

provided.

        When defendants failed to make any payment, the March 1 sheriff's sale

went forward and the property was struck off to the highest bidder. After the

sale, defense counsel again sought an updated reinstatement amount; defense

counsel was then advised that the property had been sold at the March 1 sheriff's

sale.




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      At the end of March, defendants applied for an order to show cause. After

hearing from both sides, and on notice to the third-party purchaser, the chancery

judge correctly determined that defendants had no right to reinstate the loan once

judgment was entered. The judge also recognized that defendants were given

notice of the scheduled February 1 sheriff's sale and that sale was adjourned in

light of defendants' apparent interest at that time in reinstating or paying off the

loan, but plaintiff's counsel had failed to give notice to defense counsel of the

new date – March 1, 2019 – for the sheriff's sale. To remedy the harm caused

by plaintiff's inadvertence, the judge deemed it equitable not only to delay the

recording of the sheriff's deed but also to extend the right of redemption. As a

result, the judge entered an order on April 2, 2019 that: temporarily stayed the

recording of the sheriff's deed; temporarily enjoined the purchaser's efforts to

obtain possession of the New Milford property; extended the redemption period

for ten days; and scheduled a conference for ten days later.

      The day before the April 12 conference, however, defendants filed a

motion for reconsideration that resulted in the judge's decision to extend the

restraints on the third-party purchaser for thirty days and to allow for

consideration of defendants' claim that they were entitled to reinstate the

mortgage even after entry of final judgment. The judge directed defendants to


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submit a supplemental brief in support no later than April 19, 2019. Defendants

did not comply. Instead, six days after that due date, defendants submitted a

letter brief that argued the post-judgment communications between counsel

regarding a reinstatement amount gave rise to an actionable claim under the

Consumer Frauds Act,  N.J.S.A. 56:8-1 to -20.          Throughout this time, the

restraints imposed by the April 2, 2019 order remained in place, and the time for

redemption remained open. In a thorough oral decision rendered on May 14,

2019, the chancery judge denied defendants' motion for reconsideration.

      Defendants appeal, arguing the judge abused her discretion by failing to

conduct a hearing or by otherwise refusing to vacate the sheriff's sale or to

recognize some implicit agreement to reinstate the mortgage.             We find

insufficient merit in defendants' arguments to warrant further discussion in a

written opinion. R. 2:11-3(e)(1)(E). We add only a few additional comments.

      Defendants' argument that the sheriff's sale should have been vacated

because notice was not given of the March 1 sheriff's sale is mistaken. The

February 1 sheriff's sale was duly noticed, and defendants do not argue

otherwise. The only defect in all the steps plaintiff took in this matter was its

inadvertence in failing to provide defendants with the March 1 date when

plaintiff adjourned the February 1 sheriff sale. Plaintiff was not required to give


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formal notice or republish the notice in a local newspaper. It merely had to

advise defendants of the new date. Indeed, it only adjourned the sheriff's sale

because of defendants' ostensible interest in taking some action regarding this

property.   Under these circumstances, the judge balanced the equities by

preserving the sheriff's sale while enjoining any further action by the third-party

purchaser and, more importantly, extending the right of redemption so as to

ameliorate any harm caused to defendants by the lack of informal notice of the

new sale date. U.S. ex rel. USDA v. Scurry,  193 N.J. 492, 505-07 (2008). In

fact, in light of the last-minute motion for reconsideration filed by defendants,

that right of redemption was extended for an extra month; still, defendants never

exercised that right.

      In rejecting defendants' claim to a right to reinstate that should have been

developed at an evidentiary hearing, we would simply note that defendants' right

to reinstate or cure their default on the loan ended with the entry of final

judgment. See  N.J.S.A. 2A:50-57(a) (recognizing a residential mortgagor's

right to cure a default "at any time, up to the entry of final judgment") . Even if

a court could entertain an argument that the right to reinstate or cure might be

permitted after entry of judgment – an issue we need not decide – we conclude




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that defendants have presented nothing to suggest that they were entitled to such

equitable relief from the consequences of  N.J.S.A. 2A:50-57(a).

      Affirmed.




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