LIBERTY BELL BANK v. LUIS G. ROGERS (F-047214-13, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 1, 2022
• Docket: A-3487-18
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3487-18

LIBERTY BELL BANK,

Plaintiff-Respondent,

v.

LUIS G. ROGERS,

Defendant-Appellant,

and

MARY E. ROGERS, WELLS FARGO BANK, NA, PROVIDENT SAVINGS BANK, JP MORGAN CHASE & CO., ALERT AMBULANCE SERVICE, and THE STATE OF NEW JERSEY,

Defendants. _____________________________

Submitted February 14, 2022 – Decided March 1, 2022

Before Judges Vernoia and Firko. On appeal from the State of New Jersey, Chancery Division, Burlington County, Docket No. F-047214-13.

Luis G. Rogers, appellant pro se.

Spector Gadon Rosen Vinci, PC, attorneys for respondent (Daniel J. Dugan, on the brief).

PER CURIAM

In this residential mortgage foreclosure action, defendant Luis G. Rogers

appeals from a March 1, 2019 judgment of foreclosure and order overruling his

objections to plaintiff Liberty Bell Bank's proof of claim for the amount due.

We affirm.

I.

We derive the following facts from the record. Defendant owned and

operated Lease Group Resources, Inc. (LGR), an equipment leasing company.

LGR purchased copying machines, then leased them to private businesses and

governmental entities. In 2005, plaintiff began providing financing to LGR to

purchase equipment secured by equipment leases. LGR also secured loans from

Susquehanna Bank and Roma Bank. Plaintiff secured its loans by requiring

defendant to execute promissory notes providing for the repayment of the

business loans.

A-3487-18 2 In the spring of 2013, plaintiff "and other banks with which LGR did

business" learned defendant, through LGR, engaged in a "check-kiting"

scheme.1 By May of 2013, defendant and LGR owed plaintiff the sum of

$3,713,704.52. On May 10, 2013, defendant executed a commercial guarantee

whereby he guaranteed the payment of the indebtedness of LGR to plaintiff. On

the same date, defendant and his spouse executed and delivered a mortgage to

secure the guarantee to plaintiff, encumbering residential property located at 123

Colonia Road in Edgewater Park. The mortgage was recorded in the Burlington

County Clerk's office on May 20, 2013. "Indebtedness" is defined in the

mortgage document as:

all principal, interest, and other amounts, costs and expenses payable under the [n]ote or [r]elated [d]ocuments, together with all renewals of, extensions of, modifications of, consolidations of and substitutions for the [n]ote or [r]elated [d]ocuments and any amounts expended or advanced by [plaintiff] to discharge [defendant]'s obligations or expenses incurred by [plaintiff] to enforce [defendant]'s obligations under this mortgage, together with interest on such amounts as provided in this [m]ortgage.

1 Check-kiting is a form of check fraud. According to Black's Law Dictionary , check-kiting is the "practice of writing a check against a bank account with insufficient funds to cover the check, in the hope that the funds from a previously deposited check will reach the account before it debits the amount of the outstanding check." Black's Law Dictionary (11th Ed. 2019). A-3487-18 3 The mortgage, which was not a purchase money mortgage, limited the

lien's maximum amount to $3,713,704.52, the amount owed, and no interest or

other charges were to accrue.2 Defendant defaulted on his obligation "by

refusing to provide the full value of the collateral called for by the" guarantee

and failing to make the September 13, 2013 payment or any payments thereafter.

On December 17, 2013, plaintiff filed a foreclosure complaint against

defendant3 in compliance with the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-

53. On January 24, 2014, defendant's counsel filed a contesting answer with

affirmative defenses and counterclaims. Defendant's counsel then filed a motion

to withdraw from the matter, which the trial court granted on March 19, 2014.

Thereafter, plaintiff moved to deem defendant's answer non-contesting and to

strike his answer, affirmative defenses, and counterclaims. Defendant opposed

plaintiff's motion. The trial court granted plaintiff's motion and entered an order

on June 30, 2014, deeming defendant's answer non-contesting.

On July 17, 2014, defendant moved to vacate the June 20, 2014 order.

The court denied the motion on August 12, 2014. Thereafter, we denied

2 Although the mortgage referenced an "accompanying promissory note," no such note was executed since the mortgage secured defendant's debt to plaintiff. 3 The complaint also named other defendants believed to be holders of an interest subordinate to plaintiff's mortgage lien. A-3487-18 4 defendant's motion for leave to appeal the August 12, 2014 order on December

1, 2014. Liberty Bell Bank v. Rogers, No. AM-0098-14 (App. Div. Dec. 1,

2014). After a series of motions were filed by plaintiff to reinstate its complaint,

on April 28, 2017, it moved for entry of final judgment. Defendant opposed the

motion and argued "there [was] a clear dispute in the amount of the claims" but

failed to specifically address any inaccuracies. Following oral argument on June

23, 2017, the trial court granted plaintiff's motion and entered judgment against

defendant. Plaintiff consented to reducing its originally requested amount of

$3,713,704.52 by $747,963.69 in order to "resolve" defendant's objection to the

amount plaintiff claimed was due. On August 2, 2017, the trial court entered

final judgment in favor of plaintiff and against defendant in the reduced amount

of $2,965,740.83.

On October 19, 2017, after learning of additional judgment creditors,

plaintiff moved to vacate the final judgment and sought leave to file and serve

an amended complaint to include the additional creditors. No new claims were

asserted against defendant. Defendant had filed an appeal of the August 2, 2017

judgment, and we remanded the matter to the trial "court for disposition in light

of the motion to vacate [final] judgment." Liberty Bell Bank v. Rogers, No. A-

0218-17 (App. Div. Mar. 23, 2018). On March 2, 2018, the trial court entered

A-3487-18 5 an order vacating the final judgment and granted plaintiff's motion for leave to

file and serve an amended complaint.

The record shows plaintiff filed a complaint against defendant and LGR

in the United States District Court for the District of New Jersey in 2013,

alleging violations of the Racketeer Influenced and Corrupt Organizations Act

(RICO), 18 U.S.C. §§ 1961-68, and fraud. Liberty Bell v. Rogers, Civ. No. 13-

7418 NLH/KMW, 2015 U.S. Dist. LEXIS 126245 (D.N.J. Sept. 22, 2015). On

January 28, 2016, plaintiff obtained a $10,632,186.57 judgment against

defendant. The United States Court of Appeals for the Third Circuit affirmed

the award on February 13, 2018. The Third Circuit held defendant "committed

bank fraud using a check-kiting scheme and obtained loans from [plaintiff] using

leases as collateral that either did not exist or had been pledged to more than one

bank." See Liberty Bell Bank v. Rogers, 726 Fed. App'x 147, 153, 155-56 (3d

Cir. 2018).

On May 25, 2018, defendant filed an answer with counterclaims to

plaintiff's amended complaint in the matter under review. However, the Office

of Foreclosure deemed defendant's pleadings non-contesting on August 1, 2018.

Defendant's fee waiver application was denied, and no filing fee was paid,

prompting the trial court to return the matter to the Office of Foreclosure for

A-3487-18 6 disposition on August 6, 2018. The matter was then transferred back to the

vicinage for disposition of defendant's counterclaims only.4

On November 2, 2018, plaintiff moved for summary judgment on

defendant's counterclaims asserting conversion, unjust enrichment, negligence,

and undue influence. The trial court found "[d]efendant's claims are . . . barred

by collateral estoppel" because "the issues relating to the financial dispute

between defendant and plaintiff [were] the subject of the suit instituted by

plaintiff in the federal courts." In adjudicating the motion, the court highlighted

that defendant did not proffer any credible evidence to defeat plaintiff's motion

and noted "the counterclaims do not reference the mortgage being foreclosed

upon."

On January 28, 2019, plaintiff moved for final judgment and again

demanded "judgment for the maximum amount secured by the mortgage,

$3,713,704.52." Defendant opposed plaintiff's motion and the matter was

referred to the trial court by the Office of Foreclosure. The trial court conducted

oral argument on March 1, 2019. The court found defendant "did not provide

facts for the [trial] [c]ourt to examine" and granted the final judgment for

4 It is unclear from the record if defendant ever paid the required filing fee. A-3487-18 7 $2,965,740.83 because plaintiff agreed to reduce the amount owed. A

memorializing order was entered that day, which is the subject of this appeal.

On appeal, defendant argues the trial court erred in granting plaintiff

summary judgment and overruling his objections to plaintiff's proof of claim for

the amount due in the foreclosure action and the final judgment. Specifically,

defendant claims he provided sufficient evidence to demonstrate plaintiff's proof

of claim as to the amount due was incorrect. We disagree.

II.

From the outset, we note defendant's brief fails to divide his legal

arguments under appropriate and distinctive point headings in violation of Rule

2:6-2(a)(6).5 Therefore, we are not obliged to address any argument improperly

briefed under Rule 2:6-2(a). See, e.g., State v. D.F.W., 468 N.J. Super. 422, 447

(App. Div. 2021) (holding the Appellate Division is "not obliged to address an

argument" briefed in violation of Rule 2:6-2(a)(b)). Nonetheless, we will

address the merits of defendant's arguments.

We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 349

5 "The legal argument for the appellant . . . shall be divided, under appropriate point headings, distinctively printed or typed, into as many parts as there are points to be argued." R. 2:6-2(a)(6). A-3487-18 8 (2016). "Summary judgment is appropriate where the evidence fails to show a

genuine issue as to any material fact challenged and the moving party is entitled

to judgment as a matter of law." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,

299 (App. Div. 2009) (citing R. 4:46-2(c)). In reviewing summary judgment

motions, we "view the 'evidential materials . . . in the light most favorable to the

non-moving party.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div.

2014) (alteration in original) (quoting Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995)). However, "an adverse party may not rest upon the

mere allegations or denials of the pleading . . . [to] show[] that there is a genuine

issue for trial." R. 4:46-5(a).

Further, it is "well settled that '[b]are conclusions in the pleadings without

factual support in tendered affidavits, will not defeat a meritorious application

for summary judgment.'" Cortez, 435 N.J. Super. at 606 (alteration in original)

(quoting Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div.

1999)). Additionally, all sufficiently supported material facts will be deemed

admitted for purposes of the motion "unless specifically disputed" by the party

opposing the motion. R. 4:46-2(b). In uncontested mortgage foreclosure cases,

"[t]he application for entry of judgment shall be accompanied by proofs as

A-3487-18 9 required by" [Rule] 4:64-2(a). Under Rule 4:64-2(a), the proofs "may be

submitted by affidavit, unless the court otherwise requires."

Rule 4:64-2(b) specifically delineates the required contents of the

"affidavit of amount due" filed by plaintiff in support of the entry of final

judgment, which "affidavit may be supported by computer-generated entries."

Rule 4:64-2(c) requires the affiant to certify "that he or she is authorized to make

the affidavit on behalf of the plaintiff or the plaintiff's mortgage loan servicer;"

"that the affidavit is made based on a personal review of business records of the

plaintiff or the plaintiff's mortgage loan servicer, which records are maintained

in the regular course of business;" "that the financial information contained in

the affidavit is accurate; and" "that the default remains uncured."

Any objections to the amount due must state "with specificity the basis of

the dispute." R. 4:64-1(d)(3). See also Mony Life Ins. Co. v. Paramus Parkway

Bldg., Ltd., 364 N.J. Super. 92, 106 (App. Div. 2003) (concluding that no

hearing was warranted where defendant failed to offer conflicting proof or

establish a contested fact to be resolved). After a careful review of the record,

we find no merit to any of defendant's arguments and affirm substantially for

the reasons set forth by the trial court in its comprehensive and well-reasoned

decisions.

A-3487-18 10 Here, the Office of Foreclosure deemed defendant's answer to plaintiff's

amended foreclosure complaint non-contesting. On January 28, 2018, in

compliance with Rules 4:64-1(d)(1) and 4:64-2(b), plaintiff submitted a certified

affidavit of the amount due with a schedule detailing the amount's components

when it moved for entry of final judgment. Plaintiff's proofs "included copies

of the original documents such as the mortgage, evidence of indebtedness, and

the [c]ertification of Stephen Gin," who is employed as a Vice President

Commercial Loan Officer for plaintiff. The record reveals Gin reviewed

plaintiff's records that were maintained in the ordinary course of its business and

had knowledge of the amounts due on defendant's obligation.

As the trial court emphasized, "[i]n an objection to amount due, a

defendant is required to address, with specificity, what amounts in plaintiff's

proof of amount due is incorrect and provide evidence to the [trial] court to

support the objection." Defendant reiterates on appeal, "[i]t is obvious that

millions of dollars were paid to [p]laintiff . . . that [were] never reconciled or

accounted for." But, defendant's repeated argument is flawed and devoid of

merit. As explained by the trial court:

[D]efendant fails to present, with specificity, objections to the amount due as certified to by plaintiff. The information presented by defendant relates, for the most part, to his dissatisfaction with the prior orders of

A-3487-18 11 [the] [trial] court and the District Court[] and is an attempt to relitigate the issues. None of the financial data provided by defendant is sufficient to establish an objection to the amount claimed to be due from defendant; nothing presented confirms that payments were made, or what is owed.

On appeal, defendant merely provides copies of unauthenticated and

incomplete documents, such as emails and bank statements, that he submitted to

the trial court. Moreover, defendant's brief references exhibits that are not

contained in his appendix, which is largely comprised of pleadings and court

orders. Defendant has not provided a certification or a scintilla of evidence in

support of his claims. The trial court found "[t]he documentation provided by

defendant is questionable at best and fails to provide any specific objection to

the amount due." Thus, there was no genuine issue of material fact presented to

the trial court to preclude the grant of summary judgment to plaintiff.

We are also unpersuaded by defendant's contention that the trial court

judges abdicated their responsibilities by relying on the District Court's finding,

as affirmed by the Third Circuit Court of Appeals. The record shows plaintiff

supplied all of the required Rule 4:62 documents at the time it filed its motion,

including:

• notice of motion for entry of final judgment

• proof of service of notice of motion for entry of final judgment

A-3487-18 12 • certification in support of motion for entry of final judgment

• request and certification of default

• certification of default

• proof of service of the summons and amended complaint on the United States of America

• notice to the State of New Jersey

• certification of mailing filed default

• certification of non-military service

• certification of costs to be taxed

• certification of mailing of FFA notice and no response

• certification of mailing mediation documents

• writ of execution

Defendant does not state what the correct amount due should be. And, plaintiff's

concession to reduce the amount defendant owed it renders his argument moot.

Plaintiff has satisfied all the necessary requirements for an entry of final

judgment. Defendant failed to provide the trial court with any documentation

to support his objections. Accordingly, the final judgment was properly entered,

and defendant's objection to its entry was properly denied.

Affirmed.

A-3487-18 13