Newrez, LLC v. William Velazquez

• Court: New Jersey Superior Court Appellate Division
• Decided: November 24, 2025
• Docket: A-0330-24
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0330-24

NEWREZ, LLC, d/b/a SHELLPOINT MORTGAGE SERVICING,

Plaintiff-Respondent,

v.

WILLIAM VELAZQUEZ, individually and as Administrator of the ESTATE OF ALBERTO VELAZQUEZ, a/k/a ALBERTO VELAZQUEZ LOZADA, and JOSEFINA TORRES,

Defendants-Appellants,

and

GREAT SENECA FINANCIAL CORP., MERCHANTS COMMERCIAL CREDIT, on behalf of PNC BANK, RAB PERFORMANCE RECOVERIES LLC, STATE OF NEW JERSEY, and UNITED STATES OF AMERICA,

Defendants,

ROBERT AND SARA BARNETT, Defendants/Intervenors- Respondents. _________________________________

Submitted October 14, 2025 – Decided November 24, 2025

Before Judges Walcott-Henderson and Bergman.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-010090-23.

William Velazquez and Josefina Torres, self- represented appellants.

Hill Wallack LLP, attorneys for respondent (Mark A. Roney, of counsel and on the brief).

Kessler Law, LLC, attorneys for intervenors- respondents (Adam S. Kessler, on the brief).

PER CURIAM

Defendants William Velazquez and Josefina Torres appeal from a

Chancery court order granting summary judgment to plaintiff, NewRez LLC

d/b/a Shellpoint Mortgage Servicing, in a residential mortgage foreclosure

action and entering a final judgment of foreclosure against them. Having

considered the arguments in light of the record and applicable legal principles,

we affirm.

A-0330-24 2 I.

We recite the underlying facts and procedural history from the record

which are relevant to our opinion. In 2005, Alberto Lozado executed and

delivered to Extraco Mortgage 1 an adjustable rate note in the principal amount

of $235,000, secured by a mortgage on the subject property in Lakewood. The

mortgage was recorded, and through valid assignments, ultimately transferred

to plaintiff.

Lozado died intestate in February 2015. Defendants, as his heirs,

continued to make payments on the subject loan after his death and eventually

title to the property was transferred to them through the estate's administration.

Around April 2016, an escrow account was established consistent with the terms

of the mortgage for payment of taxes and insurance on the property. Defendants

made escrow payments for several years after Lozado's passing. However, in

April 2022, defendants failed to make payment of the full amount then due; their

payment of $1,800 was less than the required $2,031.53 and was held by

plaintiff's as "unapplied." Subsequent payments remained insufficient, and late

charges were applied for April, May, and June 2022. By February 2023,

1 Extraco Mortgage is a loan originator and not a party to the underlying action or this appeal. A-0330-24 3 defendants were two months behind on the loan, with the payment received in

February only satisfying the payment due for December 2022.

On June 8, 2023, plaintiff mailed a Notice of Intention to Foreclose

("NOI") via certified mail to the property's address, listing Lozado as the

"Borrower" under the "Note," and advising of the default beginning with the

payment due February 1, 2023. Confirmation of receipt for the certified letter

was never signed by defendants. Thereafter, plaintiff filed its foreclosure

complaint on August 24, 2023.

Defendants filed a contesting answer and plaintiff moved for summary

judgment on February 28, 2024. At defendants' request, the motion was

adjourned and the trial court ordered opposition to be filed no later than April

12, 2024. Defendants failed to file timely opposition but instead filed a cross-

motion to dismiss the complaint on April 19, 2024—a week late.

On April 26, 2024, the trial court granted summary judgment to plaintiff,

and denied the cross-motion as untimely. In its oral opinion, the court stated the

motion was granted "for the reasons set forth in the certification and the

[briefing] of the moving party." Defendants' subsequent motions to fix the

amount due and to stay the sheriff's sale were denied.

A-0330-24 4 Robert and Sara Barnett purchased the subject property at the Sheriff's

sale, were granted intervention by the trial court and participated in the post -

judgment proceedings below. We granted an order permitting them to intervene

in this appeal and have considered their merits brief.

On appeal, defendants assert the trial court erred by: (1) failing to advance

findings of fact and conclusions of law when granting summary judgment and

denying defendants' cross-motion; (2) finding defendants defaulted under the

terms of the loan; (3) finding defendants were provided a valid Notice of

Intention to Foreclose ("NOI"), N.J.S.A. 2A:50-56, under the New Jersey Fair

Foreclosure Act ("FFA"), N.J.S.A. 2A:50-53 to -82; and (4) rejecting their

assertion that plaintiff's imposition of late fees violated the New Jersey Home

Ownership Security Act of 2002 ("HOSA"), N.J.S.A. 46:10B-22 to -35.

II.

In our review of a grant of summary judgment, we apply the same legal

standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We

must determine whether there is a "genuine issue as to any material fact" when

the evidence is "viewed in the light most favorable to the non-moving party."

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (first quoting

R. 4:46-2(c); and then quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

A-0330-24 5 520, 540 (1995)). The "trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference" and are reviewed de novo. Est. of Hanges v. Metro. Prop. & Cas.

Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting City of Atl. City v. Trupos, 201

N.J. 447, 463 (2010)).

A.

Initially, we address defendants' contention that the court failed to render

adequate findings supporting its grant of summary judgment to plaintiff. Rule

1:7-4(a) requires that "the court shall, by an opinion or memorandum decision,

either written or oral, find the facts and state its conclusions of law thereon ."

Compliance may be satisfied where the decision relies explicitly on reasons

advanced in the moving papers. In re Trust Created by Agreement Dated Dec.

20, 1961, 399 N.J. Super. 237, 253 (App. Div. 2006).

The record shows the court stated orally on the record that plaintiff's

motion was granted "for the reasons set forth in the certification and the briefing

of the moving party." We conclude this explicit reference was held to satisfy

Rule 1:7-4(a), since it makes plain the basis for decision and permits meaningful

appellate review. Ibid. Here, plaintiff's certifications in support of its motion

set forth the basis for summary judgment and were undisputed as to the terms of

A-0330-24 6 the note, mortgage, assignments, and defendants' default. We see no abuse of

discretion by the trial court on this point as it rendered sufficient findings of fact

and conclusions of law concerning foreclosure pursuant to the rule which we

substantively address hereafter.

B.

We now turn to defendants' contention that the court erred by finding

defendants defaulted under the terms of the loan. Defendants did not oppose the

plaintiff's motion for summary judgment and therefore did not raise these

arguments before the trial court. The trial court granted defendants' request to

adjourn the motion and set a deadline for defendants to respond to plaintiff's

summary judgment motion. Defendants failed to timely file their cross-motion

for dismissal or opposition to the motion and, therefore, the motion was decided

on an unopposed basis. We conclude the failure to timely file a response rests

on defendants alone, as they were clearly advised of plaintiff's motion by the

trial court at the time the court granted their adjournment request and required

opposition be filed by a set date. Nevertheless, even when considering

defendants' arguments on their merits, they fail.

In a mortgage foreclosure proceeding, the court must determine three

issues: (1)"the validity of the mortgage[;][(2)] the amount of the indebtedness"

A-0330-24 7 and default; and (3) the right of the plaintiff to foreclose on the mortgaged

property. Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993),

aff'd, 273 N.J. Super. 542 (App. Div. 1994).

Plaintiff's certification in support of its default request included a loan

history which established that the February 1, 2023 mortgage payment was not

paid until July 11, 2023, resulting in a delinquency. Since at least April 2022,

defendants' payments consistently failed to satisfy the full monthly obligation,

as they underpaid on the amounts due, resulting in the application of late charges

and accumulation of unpaid balances over time.

Further, the mortgage terms expressly permitted the lender to require

escrow payments for taxes and insurance and to obtain force-placed insurance

if proof of private insurance was not provided by borrowers. Plaintiff was not

obligated to accept partial payments as "timely" under the note and mortgage.

Payment is an affirmative defense, and defendants bore the burden to provide

admissible documentary proof contesting plaintiff's proofs. See Federal Deposit

Ins. Corp. v. Miller, 130 N.J.L. 626, 628 (E. & A. 1943).

Our review of the record establishes there was no dispute at the time of

the summary judgment motion that payments were not made, which were due

March 1, 2023, or thereafter, clearly placing defendants in default status for

A-0330-24 8 failing to make the required payments. Because there was substantial, credible

evidence in the record supporting the trial court's finding, we conclude there is

no merit to defendants' argument they were not in default at the time the

foreclosure complaint was filed and prosecuted.

C.

We now address defendants' contention they were not served with the

required NOI before plaintiff commenced foreclosure proceedings, in violation

of both the mortgage agreement at Sections 20 and 22 and the FFA.

The FFA applies to residential foreclosures and mandates mailing of an

NOI to the residential mortgage debtor before filing the foreclosure complaint.

N.J.S.A. 2A:50-56(a) to (b). The statute requires only that the NOI be mailed

by certified mail, return receipt requested; actual receipt or proof of delivery is

not necessary. EMC Mortg. Corp. v. Chaudri, 400 N.J. Super. 126, 140 (App.

Div. 2008).

The FFA provides:

(a) Upon failure to perform any obligation of a residential mortgage by the residential mortgage debtor and before any residential mortgage lender may accelerate the maturity of any residential mortgage obligation and commence any foreclosure or other legal action to take possession of the residential property which is the subject of the mortgage, the residential mortgage lender shall give [an NOI], which shall

A-0330-24 9 include a notice of the right to cure the default . . . at least 30 days, but not more than 180 days, in advance of such action as provided in this section, to the residential mortgage debtor. . . . (b) [An NOI] shall be in writing, . . . sent to the debtor by registered or certified mail, return receipt requested, at the debtor's last known address, and, if different, to the address of the property which is the subject of the residential mortgage. The notice is deemed to have been effectuated on the date the notice is delivered in person or mailed to the party. . . .

[N.J.S.A. 2A:50-56 (emphasis added).]

An NOI is a mandatory prerequisite to the filing of the foreclosure

complaint under the FFA. Spencer Savs. Bank, SLA v. Shaw, 401 N.J. Super.

1, 7 (App. Div. 2008). Notably, the FFA does not require proof of receipt.

Instead, proof that a plaintiff requested a return receipt of the NOI is sufficient

to meet the statutory requirements.

Under the plain language of N.J.S.A. 2A:50-56(b), notice is "effectuated

on the date the notice is delivered in person or mailed to the party." The statute

does not require proof of delivery. New Jersey courts "have recognized a

presumption that mail properly addressed, stamped, and posted was received by

the party to whom it was addressed." SSI Med. Servs., Inc. v. State Dept. of

Hum. Serv., 146 N.J. 614, 621 (1996).

A-0330-24 10 We have held that a foreclosing plaintiff satisfies the FFA when it sends

the statutory NOI by first class and certified mail, return receipt requested. EMC

Chaudhri, 400 N.J. Super. at 143. In Chaudhri, the foreclosing plaintiff provided

sufficient proof of compliance because it presented evidence that the certified

mail notice was sent to the defendant and that the first-class mail had not been

returned. Id. at 140. The court concluded that the "simultaneous use of certified

mail and first-class mail satisfies the statutory requirements of N.J.S.A. 2A:50-

56. Nothing more is required." Ibid.

Defendants rely upon our unpublished case of Nationstar Mortg., LLC v.

Armstrong for Est. of Armstrong, No. A-3795-16 (App. Div. Mar. 20, 2018)

(slip op. at 1), to support their argument. Armstrong held service of the NOI on

the mortgagor's estate administrator is mandatory prior to filing suit. Id. at 2.

Based on plaintiff's proofs in the summary judgment record, we conclude

the trial court properly found that plaintiff satisfied the notice requirements

under the FFA. Pursuant to the terms of the mortgage, plaintiff mailed the NOI

to the "Borrower" on June 8, 2023, at the "Mortgaged Property," which

defendants then owned through the estate's deed transfer to them, via certified

mail return receipt requested, advising of the payment default and providing the

opportunity to cure the default. Plaintiff certified that the mailing was returned

A-0330-24 11 as unclaimed due to defendants' refusal to accept delivery. Therefore,

defendants' assertion that they were not served the NOI is not supported by the

record considering plaintiff showed the required proof of mailing satisfying the

FFA's NOI requirements.

Defendants' reliance on Armstrong to support a defect in service of the

NOI occurred is unavailing. We conclude this argument is misplaced for two

reasons. First, we are not bound by Armstrong. See R.1:36-3 (stating no

unpublished opinion "shall constitute precedent or be binding upon any court.").

See also Badiali v. New Jersey Mfrs. Ins., 220 N.J. 544, 559 (2015) (reaffirming

the dictate of the rule). Defendants do not cite any published case that requires

a mortgagee to send an NOI to anyone other than the "residential mortgagor"

which was accomplished by plaintiff herein. Second, even if we were to

consider this argument, the cited case involved defective service by not sending

any NOI and did not address the sufficiency of an NOI mailed to a deceased

borrower like the matter before us. As a result, the trial court did not abuse its

discretion by finding plaintiff satisfied the requirements of N.J.S.A. 2A:50-56

because the NOI was sent to debtor's last known address, which was the

mortgaged premises via certified mail, return receipt requested.

A-0330-24 12 D.

We now address defendants' last contention that plaintiff violated HOSA

by improperly imposing late fees on timely principal and interest payments.

Defendants assert they made all principal and interest payments on time, as well

as timely payments for property taxes and hazard insurance directly to the

appropriate entities. Nevertheless, they assert plaintiff imposed late charges

based on its demand that taxes and insurance be escrowed—contrary to the loan

agreement—and failed to comply with HOSA's procedural requirements.

Defendants argue these violations entitle them to statutory damages and

penalties under N.J.S.A. 46:10B-29, totaling up to $281,530.15, and further

contend these damages result in a net amount owed to defendants and a

discharge of the mortgage is appropriate.

We conclude defendants' claim of a violation of the HOSA is without

merit. HOSA limits late charges on residential mortgages by capping them at

5% of the overdue payment, allowing assessment only if a payment is at least

fifteen days late, and prohibiting more than one late charge for a single missed

payment. N.J.S.A. 46:10B-25(d). The record exhibits that the note specifically

provides for a late charge of 5% of the overdue amount only if payment is

received fifteen days or more after the due date. The plaintiff's records and the

A-0330-24 13 affidavit of amount due submitted in support of its motion for summary

judgment confirm only a single 5% late charge per month was assessed.

Here, we determine the late charges were properly assessed because

defendants failed to make payment of the full amount due and owing within

fifteen days of the due date for the months at issue. As we have previously

determined, it is undisputed defendants fell behind in making their monthly

payments of principal, interest, and escrow. To this point, defendants were

paying taxes and insurance into escrow for approximately six years as part of

their monthly payments by the time they defaulted in their payments in April

2022. Thus, we determine their characterization of the late charges being

improperly assessed under HOSA for failing to pay taxes and insurance in 2022

is inaccurate based on the clear information showing otherwise in the record.

Indeed, there was no evidence in the record that defendants timely disputed the

imposition of the escrow at any time after April 2016, disputed the "force

placed" insurance applied in 2022 and 2023 or provided proof of insurance to

plaintiff. The record exhibits the imposition of the escrow and insurance to be

paid through the mortgage was in place for several years before defendants' first

missed payment and was not the reason for their default. We conclude no

genuine issue of material fact existed calling into question plaintiff's compliance

A-0330-24 14 with HOSA because it is undisputed that plaintiff did not charge a late fee for a

payment that was timely paid, nor did it charge duplicative late charges in a

single month on the loan.

To the extent we have not addressed any of defendants' remaining

arguments, we conclude those arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-0330-24 15