GMAC Mortgage, LLC v. Tamilynn Willoughby (076006) (Monmouth and Statewide

• Court: Supreme Court of New Jersey
• Decided: July 31, 2017
• Docket: A-97-15
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1294-13T3

GMAC MORTGAGE, LLC,

Plaintiff-Respondent,

v.

TAMILYNN WILLOUGHBY,

Defendant-Appellant.

__________________________________

Argued December 17, 2014 – Decided April 8, 2015

Before Judges Waugh and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Monmouth County, Docket No. F-19159- 06.

Meghan Chrisner-Keefe argued the cause for appellant (Denbeaux & Denbeaux, attorneys; Ms. Chrisner-Keefe and Joshua W. Denbeaux, on the brief).

Jaime R. Ackerman argued the cause for respondent (Zucker, Goldberg & Ackerman, LLC, attorneys; Ms. Ackerman, of counsel and on the brief).

PER CURIAM

Defendant Tamilynn Willoughby appeals from orders of the

General Equity Part concerning the foreclosure of the mortgage

on her residence by plaintiff GMAC Mortgage, LLC., and its

successor in interest. We affirm. I.

We discern the following facts and procedural history from

the record on appeal.

Willoughby purchased a residential property in Union Beach

in 2001. In February 2006, she refinanced her mortgage and

obtained a new loan from Security Atlantic Mortgage Corporation,

Inc. She signed a note in the amount of $183,000, as well as a

new mortgage. The note and mortgage were subsequently assigned

to GMAC.

Willoughby defaulted on the note in June 2006, when she

failed to make a monthly installment payment. She continued to

miss payments until GMAC commenced this foreclosure in October

2006. In August 2007, a final judgment of foreclosure was

entered in favor of GMAC in the amount of $205,915.30.

In September 2009, Willoughby sought an order to show cause

(OTSC) seeking to stay the sheriff's sale. The sale was

adjourned and the judge allowed Willoughby to file an

application for mediation.

On May 25, 2010, the parties mediated and agreed upon a

provisional mortgage modification plan. On the same date, they

memorialized the material terms of the agreement in a settlement

memorandum. The agreement required Willoughby to make "a down

payment of $6,000" by June 7, 2010. GMAC was to adjourn the

sale for six weeks, on receipt of the first payment, followed by

2 A-1294-13T3 further adjournments of twenty-eight days upon each subsequent

payment.

On June 7, 2011, AMS Servicing, LLC, (AMS), GMAC's

servicing agent, sent Willoughby an offer to enter into a

permanent modification, together with the documents to

effectuate acceptance of the offer. The proposal called for the

first payment by June 24, and established a modified maturity

date of March 1, 2036. Willoughby did not accept this offer.

On December 5, AMS sent Willoughby a second offer of

modification with slightly different terms. Willoughby again

failed to accept the offer. Finally, in May 2012, AMS sent its

final offer for modification, again with slightly different

terms, and again Willoughby failed to accept it.

In the interim, Willoughby continued to make monthly

payments in the amount of $1814.78. On August 30, however, AMS

sent Willoughby a letter returning her mortgage check and

notifying her that it was referring the mortgage for foreclosure

because she had failed to accept the permanent modification.

On September 12, Willoughby filed a pro se motion seeking

enforcement of the May 2010 interim agreement. On September 28,

the trial judge declined to enforce the 2010 agreement and

ordered the parties to reenter mediation. At the mediation on

October 4, GMAC made the following offer to Willoughby:

The following terms have been offered today:

3 A-1294-13T3 unpaid principle balance $181,783.82, interest rate of 6.125%, 360 month term. Payments to begin on December 1, 2012 in approximate amount of $1805. By November 1, borrower to make down payment of approx. $3630 (representing the 2 returned payments). If 24 consecutive on time payments are made, lender would waive approx. $18,000 in interest. This would not be a balloon [modification], but approx. $2500 due on maturity in interest. Approx. $10000 are being held in suspense, which would be applied.

[(Emphasis added.)]

During the mediation, Willoughby made the following counter

offer:

I will accept a permanent modification offer with the following terms. Application of $10,800 +/— suspense to escrow [balance]. No down payment. [Principle balance] 181,783.82 Interest Rate 5% Term 360 mos First payment due 12/1/2012 Waiver of $78k interest Upon Signing No 24 [Month] Trial Balloon at end of 360 months $24k w/o interest Once modified lender will contact all credit bureaus to [correct] borrowers credit.

Willoughby subsequently described the five percent interest rate

in her counteroffer as the most important term for her.

The parties agreed that they would have until November 21

to respond to their respective offers. If an offer were

accepted, implementing documents would be sent to Willoughby by

4 A-1294-13T3 December 11. The parties agreed that there would be no further

mediation.

GMAC declined Willoughby's counteroffer via email.

Willoughby did not respond to GMAC's offer. Although Willoughby

sought to make a counteroffer on December 3, it was rejected

based on the agreement that there would be no further

negotiations.

On December 6, Willoughby went to the office of GMAC's

attorney, seeking to accept GMAC's offer. She offered two

cashier's checks, each in the amount of $1814.78. The attorney

told her the modification documents would be sent to her home.

Her acceptance of GMAC's offer was memorialized in an email sent

by GMAC's attorney to the court and all interested parties. The

documents were prepared and sent to Willoughby. However,

Willoughby failed to execute them. GMAC then rescinded the

offer.

In January 2013, GMAC filed a motion to substitute FRT2001-

1 Trust (Trust) as the plaintiff, and to allow the sheriff's

sale to proceed. Willoughby filed a cross-motion seeking to

collect the proceeds of an insurance claim resulting from

Superstorm Sandy and to enforce settlement. She attached an

agreement purporting to be the final modification document sent

to her by GMAC's attorney as an exhibit to her motion. However,

the terms of the document submitted by Willoughby differed

5 A-1294-13T3 significantly from the modification agreement Willoughby had

accepted.

On February 22, the trial judge scheduled a plenary hearing

to determine whether Willoughby was entitled to the insurance

proceeds and to enforce the settlement. He also allowed the

sheriff's sale to proceed, following compliance with the filing

of a certificate of diligent inquiry by the Trust. The plenary

hearing was adjourned several times, and ultimately did not take

place.

On August 23, the parties appeared for oral argument before

a new General Equity judge. Willoughby argued for enforcement

of the May 2010 provisional agreement, rather than enforcement

of the permanent modification agreement attached to her motion

papers. The judge found that there was no permanent mortgage

modification because Willoughby had failed to sign the

implementing documents. The judge also denied Willoughby's

application to enforce the provisional agreement, which by its

terms was to have been replaced by a permanent modification of

the mortgage. Finally, the judge denied Willoughby's

application for payment of the insurance proceeds to her.

Willoughby moved for reconsideration, again seeking

enforcement of the May 2010 provisional agreement. The judge

heard argument on October 25, and determined that there was no

basis to reconsider the prior decision because a settlement had

6 A-1294-13T3 not been reached and because Willoughby sought enforcement of a

different agreement than she had sought in her underlying

motion. The judge also denied Willoughby's request for an

accounting of the loan, determining that the request was not

properly before her.

The sheriff's sale was scheduled for November 4. The

Trust's attorney sent Willoughby a letter notifying her of the

sale date. Willoughby's attorney sought to file an OTSC to stay

the sale, but failed to pay the required filing fee. Willoughby

applied to us for emergent relief, which we denied on November

4. The sale proceeded as scheduled.

Willoughby's statutory redemption period was to expire on

November 14. On November 11, she filed a motion objecting to

the sale. Willoughby then withdrew the motion, and sought entry

of an OTSC setting aside the sale. On November 20, the judge

held an initial hearing on the application. She granted no

interim relief, but scheduled the return date of the OTSC for

December 19. The judge denied Willoughby's request for an

extension of her redemption period, which relief was not

contained in her application for the OTSC.

The judge held oral argument on December 19. She rejected

Willoughby's argument that she did not have proper notice of the

date of the sale and that the sale price was inadequate. The

judge found that Willoughby had not presented any evidence

7 A-1294-13T3 warranting vacation of the sheriff's sale. The judge determined

that "It is obvious to me and it's clear to me that [Willoughby]

knew what the sale date was. She was notified by the sheriff.

She was notified by the plaintiff. And she chose not to appear

or she chose not to do something." On January 14, 2014, the

judge entered an order denying the relief sought in Willoughby's

OTSC. This appeal follows.

II.

Willoughby argues on appeal that the General Equity judge

erred in determining that there was no mortgage modification

agreement, in failing to hold a plenary hearing, in refusing to

order an accounting, and in denying her application to set aside

the sheriff's sale.

We conclude that there was no need for a plenary hearing.

A trial or factfinding hearing is only required when there are

genuine issues of material fact. "The inquiry is 'whether the

evidence presents a sufficient disagreement to require

submission to a [trier of fact] or whether it is so one-sided

that one party must prevail as a matter of law.'" Liberty

Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46

(2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 536 (1995)).

The provisional agreement was not enforceable on a

permanent basis because it was, as its name implies, a temporary

8 A-1294-13T3 agreement to be replaced by a permanent mortgage modification

signed by the parties. It is clear from the record that

Willoughby never accepted GMAC's offer of a permanent loan

modification. She never signed the documents tendered by GMAC

to implement its offer, although she had several opportunities

to do so. Instead, she made counteroffers seeking terms more

favorable to her, particularly with respect to the interest

rate. A "counteroffer operates as a rejection because it

implies that the offeree will not consent to the terms of the

original offer and will only enter into the transaction on the

terms stated in the counteroffer." Berberian v. Lynn, 355 N.J.

Super. 210, 217 (App. Div. 2002). There was never a meeting of

the minds with respect to the essential terms of a permanent

modification agreement. Weichert Co. Realtors v. Ryan, 128 N.J.

427, 435 (1992). Because we find no error with respect to the

judge's initial decision, the motion for reconsideration was

properly denied.

The Chancery Division has the authority to set aside a

sheriff's sale and order a resale of the property in the

exercise of its discretion, based on considerations of equity

and justice. First Trust Nat'l Assoc. v. Merola, 319 N.J.

Super. 44, 49 (App. Div. 1999). "The general rule is that when

insufficient notice of a sheriff's sale is given, the preferred

remedy is that which restores the status quo ante to the

9 A-1294-13T3 greatest extent possible." New Brunswick Sav. Bank v.

Markouski, 123 N.J. 402 (1991). The court may void the sale if

the party seeks relief promptly, was unaware of the pending

sale, and no innocent third parties would be prejudiced. Ibid.

A judicial sale may be set aside for fraud, accident, surprise,

mistake, irregularities in the conduct of the sale, or for other

equitable considerations. Merola, supra, 319 N.J. at 50.

Willoughby acknowledges that she received notice from the

sheriff that the sale would occur on November 4, 2013. Counsel

for plaintiff also notified Willoughby of the November 4 date.

The sale took place on that date.

We find no error in the judge's refusal to grant relief

based on a screenshot allegedly taken from the Monmouth County

Sheriff's Department website showing a December 9 sale date.

The website clearly states that the Sheriff's Office "does not

warrant the accuracy, completeness, or timeliness of [the

posting]." In addition, Willoughby did not contend that she had

been notified of a December 9 date by the Sheriff or the Trust.

She also acknowledges that, on November 4, the sale was listed

for that day on the Sheriff's Office website. We find it

telling that Willoughby's application for an OTSC was not

accompanied by a certification signed by her and alleging that

she would have appeared at the sale on November 4 but did not do

so because she believed the date had been adjourned, or

10 A-1294-13T3 asserting that she had sufficient funds to bid at the sale

whenever it was held.

Willoughby also argues that the sale price at the sheriff's

sale was inadequate. We have held that "inadequacy of price is

not sufficient alone to justify equitable relief." Ibid.

The remaining issues raised on appeal are without merit and

do not warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

11 A-1294-13T3