DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. WAYNE PASCHALL (F-020036-15, GLOUCESTER COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 8, 2018
• Docket: A-1828-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1828-16T4

DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee for the Registered Holder of Morgan Stanley Home Equity Loan Trust 2007-2 Mortgage Pass Through Certificates, Series 2007-2,

Plaintiff-Respondent,

v.

WAYNE PASCHALL and MRS. PASCHALL, unknown spouse of WAYNE PASCHALL,

Defendants-Appellants. ________________________________

Argued April 24, 2018 – Decided June 8, 2018

Before Judges Hoffman and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. F-020036-15.

Wayne Paschall, appellant, argued the cause pro se.

Dana M. Carrera argued the cause for respondent (McGlinchey Stafford, attorneys; Dana M. Carrera and Victor L. Matthews, on the brief). PER CURIAM

Defendant Wayne Paschall appeals from a December 2, 2016

Chancery Division order denying his motion to return this

foreclosure case to mediation. For the following reasons, we

affirm.

In November 2006, defendant borrowed $252,000 from Wilmington

Finance, Inc. and executed a mortgage on his home in Deptford. In

June 2013, the lender assigned the mortgage to plaintiff Deutsche

Bank National Trust Company, as Trustee for the Registered Holder

of Morgan Stanley Home Equity Loan Trust 2007-2 Mortgage Pass-

Through Certificates, Series 2007-2.

Defendant defaulted on the mortgage in March 2013. As a

result, plaintiff filed a foreclosure complaint in June 2015.

Defendant did not file an answer but, instead, filed a request for

mediation under New Jersey's Foreclosure Mediation Program (FMP),

which the court granted in August 2015. Before mediation began,

plaintiff requested entry of default in October 2015.

The parties held nine mediation sessions between December

2015 and October 2016. During mediation, plaintiff offered

defendant two streamline modifications and another modification

under the Home Affordable Modification Program (HAMP

modification), all of which defendant rejected. Defendant claimed

2 A-1828-16T4 he could not afford the payments offered. In October 2016, the

mediator terminated mediation, giving defendant the option to re-

apply for a modification if his financial circumstances changed.

Meanwhile, the trial court entered a final judgment of foreclosure

on August 9, 2016. Defendant did not appeal from that judgment.

Two days after mediation ended, defendant filed a motion to

compel plaintiff to return to mediation. The trial court heard

oral argument and denied defendant's motion on December 2, 2016.

The order states, "Mediation has taken place and a loan

modification was offered but not accepted. Reasons on record."

However, plaintiff failed to provide us with a copy of the December

2, 2016 transcript.

Defendant appealed the December 2, 2016 order, and at the

same time, filed a motion for reconsideration with the trial court.

The trial court denied the reconsideration motion on February 17,

2017. The court did, however, grant defendant a stay of a

sheriff's sale pending this appeal.

On appeal, defendant argues plaintiff's first two offers were

"illegitimate" and the third offer mistakenly used his wife's

entire income despite the fact that she is a non-borrower. He

contends the first two offers were streamline offers, and he did

not request that type of offer. The third offer was a HAMP

modification, which he requested, but he contends the calculation

3 A-1828-16T4 of the offer should have used only half of his wife's income

because that is what she agreed to contribute.

Preliminarily, we note defendant failed to provide us with

the transcript from the trial court's December 2, 2016 decision

being appealed. Defendant did provide the transcript from the

court's February 17, 2017 decision denying reconsideration;

however, defendant did not appeal from the reconsideration order.

The court rules require an appellant to provide a transcript of

relevant court proceedings, so we can appropriately review the

appeal. R. 2:5-3(a). Although we do not have the trial court's

reasoning for the order appealed, the brief statement on the order

and the reasoning for the denial of reconsideration provide insight

into the December 2, 2016 decision. Therefore, we elect to review

the merits of defendant's appeal.

Defendant's appeal challenges the Chancery judge's exercise

of discretion in denying defendant's motion to compel plaintiff

to return to mediation. We will not overturn a decision denying

such a motion absent an abuse of discretion. U.S. Bank Nat'l

Ass'n v. Williams, 415 N.J. Super. 358, 365 (App. Div. 2010).

The FMP was established to help homeowners through the

foreclosure crisis. Id. at 368. "However, an order to participate

in mediation does not mandate that one party accept the proposed

resolution offered by the other." Id. at 373. "The main factor

4 A-1828-16T4 affecting the likelihood of achieving a loan workout is

affordability, that is the homeowner's ability to satisfy the

modified obligation." Id. at 371.

Here, the trial court granted defendant’s request for

mediation, the parties participated in nine sessions, and

plaintiff offered three loan modifications. Plaintiff was under

no obligation to offer the precise modification defendant wanted,

and the calculation of any offer is outside the scope of our

review. The mediator gave the parties ample opportunity to work

out a compromise, and only terminated mediation after defendant

rejected the last modification plaintiff offered, claiming he

could not afford to accept the offer, despite a reduction of nearly

$350 in monthly payments. Accordingly, we see no abuse of

discretion in the trial court's decision not to order continued

mediation.

Furthermore, on August 9, 2016, the trial court entered a

final judgment of foreclosure, which defendant failed to appeal.

Defendant did not specifically request we vacate the final

judgment; regardless, we discern no basis under Rule 4:50-1 to

disturb that judgment.

Affirmed.

5 A-1828-16T4