NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4714-16T3
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE6,
Plaintiff-Respondent,
v.
MICHAEL HOCHMEYER,
Defendant-Appellant,
and
MRS. HOCHMEYER, wife of MICHAEL HOCHMEYER, EMMA HOCHMEYER, WINNE BANTA HETHERINGTON BASRALIAN & KAHN,
Defendants. _________________________________
Submitted June 5, 2018 – Decided June 15, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-007791-16. Northeast Law Group, LLC, attorneys for appellant Michael Hochmeyer (Adam L. Deutsch, on the briefs).
Fein, Such, Kahn & Shepard, PC, attorneys for respondent (Ashleigh L. Marin and Douglas J. McDonough, on the brief).
PER CURIAM
Defendant Michael Hochmeyer appeals from a June 1, 2017 final
judgment of foreclosure. We affirm.
In May 2006, defendant executed a promissory note for $560,000
along with a mortgage in favor of Decision One Mortgage Company,
LLC (Decision One). The promissory note states, "If, on June 1,
2036, [defendant] still owe[s] amounts under this [n]ote,
[defendant] will pay those amounts in full on that date, which is
called the 'Maturity Date.'" The note also states that upon
default, plaintiff "may require [defendant] to pay immediately the
full amount of [p]rincipal that has not been paid and all the
interest [owed] on that amount." The mortgage states defendant
"has promised to pay . . . the debt in full not later than June
1, 2036."
Defendant defaulted on the loan in December 2006. Mortgage
Electronic Registration Systems (MERS), as nominee for Decision
One, filed a foreclosure complaint in August 2007. In that
complaint, MERS required defendant to pay the unpaid principal and
interest in full, pursuant to the acceleration clause. During the
2 A-4714-16T3 course of that litigation, Decision One transferred the loan to
plaintiff. In October 2009, the trial court entered final judgment
in favor of plaintiff for $707,265.97. In August 2013, plaintiff
voluntarily dismissed the complaint without prejudice. The record
does not indicate whether plaintiff also vacated the judgment.
In March 2016, plaintiff filed a second foreclosure complaint
against defendant. Plaintiff filed a motion for summary judgment
and defendant cross-moved for dismissal, arguing the statute of
limitations barred the claim. In January 2017, the trial court
granted plaintiff's motion for summary judgment and denied
defendant's cross-motion for dismissal. On May 12, 2017, the
court entered an order in favor of plaintiff for $1,202,880.86,
which it finalized in a judgment on June 1, 2017. Defendant
appeals from the June 1, 2017 final judgment.
On appeal, defendant makes two arguments. First, defendant
argues the statute of limitations bars plaintiff's March 2016
complaint. Second, defendant argues he is responsible only for
the amount of the first judgment, and not the additional amount
for the interest accrued and taxes and insurance paid since the
first judgment.
We review a ruling on summary judgment de novo, applying the
same standard governing the trial court. Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014). "If there is no
3 A-4714-16T3 genuine issue of material fact, we must then decide whether the
trial court correctly interpreted the law." DepoLink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325,
333 (App. Div. 2013) (citation omitted). We review issues of law
de novo and accord no deference to the trial judge's conclusions
on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Here, the first issue presented is a purely legal one, and
the underlying facts are undisputed. The parties agree defendant
defaulted, plaintiff's predecessor filed an initial foreclosure
complaint in August 2007 that stated "the whole unpaid
principal . . . with all unpaid interest . . . shall now be due,"
and plaintiff filed another foreclosure complaint in March 2016.
The issue is whether the filing of the initial complaint in August
2007 began the six-year statute of limitations period under
N.J.S.A. 2A:50-56.1(a).
N.J.S.A. 2A:50-56.1 provides:
An action to foreclose a residential mortgage shall not be commenced following the earliest of:
a. Six years from the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, bond, or other obligation secured by the mortgage, whether the date is itself set forth or may be calculated from information contained in the mortgage or note, bond, or other obligation, except that if the date fixed for the making of the last payment or the maturity
4 A-4714-16T3 date has been extended by a written instrument, the action to foreclose shall not be commenced after six years from the extended date under the terms of the written instrument;
b. Thirty-six years from the date of recording of the mortgage, or, if the mortgage is not recorded, [thirty-six] years from the date of execution, so long as the mortgage itself does not provide for a period of repayment in excess of [thirty] years; or
c. Twenty years from the date on which the debtor defaulted, which default has not been cured, as to any of the obligations or covenants contained in the mortgage or in the note, bond, or other obligation secured by the mortgage, except that if the date to perform any of the obligations or covenants has been extended by a written instrument or payment on account has been made, the action to foreclose shall not be commenced after [twenty] years from the date on which the default or payment on account thereof occurred under the terms of the written instrument.
In construing statutes, the Legislature has instructed "its
words and phrases 'shall be read and construed with their context,
and shall, unless inconsistent with the manifest intention of the
[L]egislature or unless another or different meaning is expressly
indicated, be given their generally accepted meaning . . . .'"
U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 471 (2012)
(quoting N.J.S.A. 1:1-1). "To the extent possible, the [c]ourt
must derive its construction from the Legislature's plain
language." Ibid. (citations omitted). "When construing a statute,
5 A-4714-16T3 '[l]egislative language must not, if reasonably avoidable, be
found to be inoperative, superfluous or meaningless.'" State v.
Regis, 208 N.J. 439, 449 (2011) (quoting Franklin Tower One, LLC
v. N.M., 157 N.J. 602, 613 (1999) (alteration in original)).
Defendant argues plaintiff accelerated the loan in August
2007, when its predecessor filed the first complaint and declared
the full amount due; as a result, the "last payment" became due
in August 2007 and the statute of limitations under N.J.S.A. 2A:50-
56.1(a) began to run. Because the statute of limitations period
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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-4714-16T3
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, IN TRUST FOR THE REGISTERED HOLDERS OF MORGAN STANLEY ABS CAPITAL I INC. TRUST 2006-HE6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-HE6,
Plaintiff-Respondent,
v.
MICHAEL HOCHMEYER,
Defendant-Appellant,
and
MRS. HOCHMEYER, wife of MICHAEL HOCHMEYER, EMMA HOCHMEYER, WINNE BANTA HETHERINGTON BASRALIAN & KAHN,
Defendants. _________________________________
Submitted June 5, 2018 – Decided June 15, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-007791-16. Northeast Law Group, LLC, attorneys for appellant Michael Hochmeyer (Adam L. Deutsch, on the briefs).
Fein, Such, Kahn & Shepard, PC, attorneys for respondent (Ashleigh L. Marin and Douglas J. McDonough, on the brief).
PER CURIAM
Defendant Michael Hochmeyer appeals from a June 1, 2017 final
judgment of foreclosure. We affirm.
In May 2006, defendant executed a promissory note for $560,000
along with a mortgage in favor of Decision One Mortgage Company,
LLC (Decision One). The promissory note states, "If, on June 1,
2036, [defendant] still owe[s] amounts under this [n]ote,
[defendant] will pay those amounts in full on that date, which is
called the 'Maturity Date.'" The note also states that upon
default, plaintiff "may require [defendant] to pay immediately the
full amount of [p]rincipal that has not been paid and all the
interest [owed] on that amount." The mortgage states defendant
"has promised to pay . . . the debt in full not later than June
1, 2036."
Defendant defaulted on the loan in December 2006. Mortgage
Electronic Registration Systems (MERS), as nominee for Decision
One, filed a foreclosure complaint in August 2007. In that
complaint, MERS required defendant to pay the unpaid principal and
interest in full, pursuant to the acceleration clause. During the
2 A-4714-16T3 course of that litigation, Decision One transferred the loan to
plaintiff. In October 2009, the trial court entered final judgment
in favor of plaintiff for $707,265.97. In August 2013, plaintiff
voluntarily dismissed the complaint without prejudice. The record
does not indicate whether plaintiff also vacated the judgment.
In March 2016, plaintiff filed a second foreclosure complaint
against defendant. Plaintiff filed a motion for summary judgment
and defendant cross-moved for dismissal, arguing the statute of
limitations barred the claim. In January 2017, the trial court
granted plaintiff's motion for summary judgment and denied
defendant's cross-motion for dismissal. On May 12, 2017, the
court entered an order in favor of plaintiff for $1,202,880.86,
which it finalized in a judgment on June 1, 2017. Defendant
appeals from the June 1, 2017 final judgment.
On appeal, defendant makes two arguments. First, defendant
argues the statute of limitations bars plaintiff's March 2016
complaint. Second, defendant argues he is responsible only for
the amount of the first judgment, and not the additional amount
for the interest accrued and taxes and insurance paid since the
first judgment.
We review a ruling on summary judgment de novo, applying the
same standard governing the trial court. Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 405 (2014). "If there is no
3 A-4714-16T3 genuine issue of material fact, we must then decide whether the
trial court correctly interpreted the law." DepoLink Court
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325,
333 (App. Div. 2013) (citation omitted). We review issues of law
de novo and accord no deference to the trial judge's conclusions
on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Here, the first issue presented is a purely legal one, and
the underlying facts are undisputed. The parties agree defendant
defaulted, plaintiff's predecessor filed an initial foreclosure
complaint in August 2007 that stated "the whole unpaid
principal . . . with all unpaid interest . . . shall now be due,"
and plaintiff filed another foreclosure complaint in March 2016.
The issue is whether the filing of the initial complaint in August
2007 began the six-year statute of limitations period under
N.J.S.A. 2A:50-56.1(a).
N.J.S.A. 2A:50-56.1 provides:
An action to foreclose a residential mortgage shall not be commenced following the earliest of:
a. Six years from the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note, bond, or other obligation secured by the mortgage, whether the date is itself set forth or may be calculated from information contained in the mortgage or note, bond, or other obligation, except that if the date fixed for the making of the last payment or the maturity
4 A-4714-16T3 date has been extended by a written instrument, the action to foreclose shall not be commenced after six years from the extended date under the terms of the written instrument;
b. Thirty-six years from the date of recording of the mortgage, or, if the mortgage is not recorded, [thirty-six] years from the date of execution, so long as the mortgage itself does not provide for a period of repayment in excess of [thirty] years; or
c. Twenty years from the date on which the debtor defaulted, which default has not been cured, as to any of the obligations or covenants contained in the mortgage or in the note, bond, or other obligation secured by the mortgage, except that if the date to perform any of the obligations or covenants has been extended by a written instrument or payment on account has been made, the action to foreclose shall not be commenced after [twenty] years from the date on which the default or payment on account thereof occurred under the terms of the written instrument.
In construing statutes, the Legislature has instructed "its
words and phrases 'shall be read and construed with their context,
and shall, unless inconsistent with the manifest intention of the
[L]egislature or unless another or different meaning is expressly
indicated, be given their generally accepted meaning . . . .'"
U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 471 (2012)
(quoting N.J.S.A. 1:1-1). "To the extent possible, the [c]ourt
must derive its construction from the Legislature's plain
language." Ibid. (citations omitted). "When construing a statute,
5 A-4714-16T3 '[l]egislative language must not, if reasonably avoidable, be
found to be inoperative, superfluous or meaningless.'" State v.
Regis, 208 N.J. 439, 449 (2011) (quoting Franklin Tower One, LLC
v. N.M., 157 N.J. 602, 613 (1999) (alteration in original)).
Defendant argues plaintiff accelerated the loan in August
2007, when its predecessor filed the first complaint and declared
the full amount due; as a result, the "last payment" became due
in August 2007 and the statute of limitations under N.J.S.A. 2A:50-
56.1(a) began to run. Because the statute of limitations period
under section (a) is six years, defendant asserts any complaint
filed after August 2013 is barred.
Plaintiff argues filing a foreclosure complaint does not
accelerate the "last payment" date for purposes of section (a).
Therefore, section (c) applies and the statute of limitations
expires twenty years after the default. Since the default occurred
on December 1, 2006, plaintiff asserts any complaint filed before
December 1, 2026 conforms to the statute of limitations.
Because the statute itself does not make clear which section
applies when the lender files a foreclosure complaint accelerating
the loan, we look to the legislative intent. See Guillaume, 209
N.J. at 471. First, the legislative history states the purpose
of the statute was to "address some of the problems caused by the
presence on the record of residential mortgages which have been
6 A-4714-16T3 paid or which are otherwise unenforceable. These mortgages
constitute clouds on title which may render real property titles
unmarketable and delay real estate transactions." S. Commerce
Comm. Statement to S. 250, 1 (May 8, 2008); Assemb. Fin. Insts. &
Ins. Comm. Statement to S. 250, 1 (May 8, 2008). Importantly, in
summarizing section (a), both committees use only the phrase "date
of maturity" and not "last payment date," and analogize that
section to the six-year statute of limitations for contracts.
Ibid.
Second, the legislative history makes clear that for a
default, the intent was to set a twenty-year statute of limitations
from the date of default.
The bill, in part, codifies the holding in Security National Partners Limited Partnership v. Mahler, 336 N.J. Super. 101 (App. Div. 2000), which applied a [twenty]- year statute of limitations to a residential mortgage foreclosure action based on a default due to nonpayment. In its decision, the court noted that since there is currently no statute of limitations expressly applicable to mortgage foreclosures in these situations, courts have resorted to drawing analogies to adverse possession statutes which bar rights of entry onto land after [twenty] years. This bill would resolve the uncertainties surrounding this area of law by providing a specific statute of limitations of [twenty] years from the date of the default by the debtor.
7 A-4714-16T3 [S. Commerce Comm. Statement to S. 250, 1 (May 8, 2008); Assemb. Fin. Insts. & Ins. Comm. Statement to S. 250, 1-2 (May 8, 2008).]
Here, neither the note nor mortgage states that an
acceleration of the debt changed the maturity date. The note
itself expressly defines the maturity date: "If, on June 1, 2036,
I still owe amounts under this note, I will pay those amounts in
full on that date, which is called the 'Maturity Date.'"
Moreover, this is not a case where there is a cloud on the
title rendering the property unmarketable. This is a case of
default, where the lender is entitled to foreclose. The record
reflects no dispute that defendant stopped paying the mortgage in
2006 and that plaintiff has paid all carrying costs for the
property since that time. As a result, dismissal of plaintiff's
March 2016 complaint would provide an inequitable result because
defendant would receive a windfall at plaintiff's expense.
Accordingly, we affirm the trial court's decision to apply the
twenty-year statute of limitations from the date of default as the
Legislature intended.
Defendant also argues awarding plaintiff $495,614.89 more
than the first final judgment amount of $707,265.97 results in a
windfall to plaintiff. We disagree.
Rule 4:64-1(d)(3) provides, "Any party . . . who disputes the
correctness of the affidavit of amount due may file with the Office
8 A-4714-16T3 of Foreclosure an objection stating with specificity the basis of
the dispute and asking the court to fix the amount due." Although
defendant objected to plaintiff's calculation of the final
judgment, the trial court found defendant did not object "with
specificity" because he failed to support his objection with any
proofs of his own, or offer an alternative to plaintiff's
calculation. The $1,202,880.86 final judgment entered on June 1,
2017 consisted of $559,448.67 in unpaid principal, $436,325.46 in
interest, $149,287.21 in taxes, $57,166.52 in insurance, and $653
in property inspection costs. The interest was calculated from
the date of the last payment made to March 3, 2017.
Defendant made no specific objections to plaintiff's
calculations. Rather, defendant argues plaintiff delayed
enforcement of the October 2009 judgment and the court should not
reward plaintiff for that delay. However, defendant's argument
again ignores the fact that plaintiff paid all of the carrying
costs on the property, including taxes and insurance, while
defendant lived there payment-free. Equity dictates the court
grant plaintiff a judgment for its reasonable expenditures. See
Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 320
(App. Div. 2012) ("In foreclosure matters, equity must be applied
to plaintiffs as well as defendants."). Accordingly, we affirm
9 A-4714-16T3 the trial court's final judgment in the full amount of
$1,202,880.86.
Affirmed.
10 A-4714-16T3