U.S. Bank National Association, as Trustee for The

130 A.3d 1269, 444 N.J. Super. 94

• Court: New Jersey Superior Court Appellate Division
• Decided: February 1, 2016
• Docket: A-2649-13T4
• Status: Published

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2649-13T4

U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, 2006-EQ1, APPROVED FOR PUBLICATION Plaintiff-Respondent, February 1, 2016 v. APPELLATE DIVISION JOANN L. CURCIO,

Defendant-Appellant,

and

MR. CURCIO, husband of Joann L. Curcio,

Defendant. ________________________________________

Submitted September 16, 2015 – Decided February 1, 2016

Before Judges Reisner, Hoffman and Leone.

On appeal from the Superior Court of New Jersey, Chancery Division, Warren County, Docket No. F-008037-12.

Joseph A. Chang & Associates, LLC, attorneys for appellant (Joseph A. Chang, of counsel and on the briefs; Jeffrey Zajac, on the briefs).

Reed Smith, LLP, attorney for respondent (Henry F. Reichner, of counsel; Alex G. Gross, on the brief). The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Joann L. Curcio appeals from a final judgment of

foreclosure and an order denying her motion to vacate the

judgment. In considering her appeal, we review differences

between the various Court Rules governing personal and mailed

service of process and proof of service. Based on our

construction of the current versions of those Rules, we find no

merit in defendant's argument that service was improper, or in

any of her other contentions. Accordingly, we affirm.

I.

Defendant executed a promissory note in favor of EquiFirst

Corporation in the amount of $240,500 in 2006. Defendant

simultaneously executed a non-purchase money mortgage in favor

of EquiFirst. The mortgage encumbered a single-family residence

located in Bloomsbury, Greenwich Township, in Warren County,

where it was recorded. The mortgage named Mortgage Electronic

Registration Systems, Inc. (MERS) as mortgagee in a nominee

capacity for EquiFirst.

In September 2010, defendant defaulted on the promissory

note. In January 2011, MERS assigned the mortgage to plaintiff

U.S. Bank National Association.

2 A-2649-13T4 On September 29, 2011, counsel for plaintiff sent defendant

a "Notice of Intention to Foreclose," addressed to the

encumbered property via regular mail and certified mail, return

receipt requested. On October 3, 2011, counsel for plaintiff

received the certified mail return receipt, which was apparently

signed by defendant. In April 2012, defendant requested and

received a reinstatement quote from plaintiff's counsel.

On May 2, 2012, plaintiff instituted a foreclosure action

in the Chancery Division. In May 2012, a private process server

attempted at least three times to make personal service of the

complaint and summons on defendant at the encumbered property,

without success.

As a result, plaintiff's counsel employed a private

investigator to locate defendant. As detailed in the

subsequently-filed Certification of Inquiry/Mailing, an inquiry

was made with the United States Postal Service (USPS) asking if

defendant still lived at the encumbered property. The

postmaster advised no change of address order was on file. The

investigator performed a "skip trace," which revealed that

defendant still resided at the encumbered property.1 Inquiries

1 Black's Law Dictionary defines a "skiptracing agency" as a "service that locates persons (such as delinquent debtors, missing heirs, witnesses, stockholders, bondholders, etc.) or (continued)

3 A-2649-13T4 to the Department of Motor Vehicles (DMV) and the Warren County

Tax Assessor's Office confirmed the same address.

Moreover, the private investigator prepared a report, which

detailed the investigator's efforts to locate defendant. The

investigator checked with defendant's creditors, the telephone

company's directory assistance database, the National Address

Database, and defendant's neighbors. Every inquiry indicated

that defendant still resided at the encumbered property.

As a result of the difficulties in effecting personal

service of the complaint and summons on defendant, on July 26,

2012, plaintiff mailed defendant the complaint and summons to

the encumbered property by regular mail and certified mail,

return receipt requested. The certified mail was returned

marked "unclaimed," and the regular mail was not returned.

Plaintiff set forth its unsuccessful efforts at effecting

personal service, its subsequent inquiries, and its successful

service by mail, in its Certification of Inquiry/Mailing, which

was filed on November 27, 2012. The Certification of

Inquiry/Mailing attached: the process server's affidavit of

unsuccessful personal service; the postmaster's finding of no

change of address; the results of the inquiries to the DMV and

(continued) missing assets (such as bank accounts)." Black's Law Dictionary, 1514 (9th ed. 2009).

4 A-2649-13T4 Tax Assessor's Office showing defendant still lived at the

encumbered property; the private investigator's report; and the

USPS "Track & Confirm" printout showing that the certified mail

was "[u]nclaimed."

On November 30, 2012, plaintiff filed a certification of

default, citing defendant's failure to file an answer to the

complaint. Default was entered the same day. In February 2013,

defendant's counsel contacted plaintiff's counsel and requested

that the default be vacated. Plaintiff denied this request.

Defendant failed to file a motion to vacate the default.

On April 22, 2013, plaintiff sent defendant a Notice of

Entry of Default by certified and regular mail to the encumbered

property. Plaintiff also sent a formal notice, as required by

N.J.S.A. 2A:50-58, advising defendant of her right to cure and

of plaintiff's intention to seek a final judgment. Defendant

failed to cure her default.

Plaintiff first moved for entry of final judgment in May

2013. On June 12, 2013, defendant filed opposition to

plaintiff's motion, arguing that plaintiff miscalculated the

interest on the loan and that she did not receive a Notice of

Intention to Foreclose that complied with the Fair Foreclosure

Act, N.J.S.A. 2A:50-53 to -68. Notably, defendant's opposition

5 A-2649-13T4 did not raise insufficiency of service. Defendant represents

that plaintiff's motion was denied.

On September 27, 2013, plaintiff filed a second motion for

entry of final judgment. Defendant did not oppose this motion.

On October 11, 2013, the Chancery Division entered a final

judgment of foreclosure in favor of plaintiff in the amount of

$292,780.85, awarded counsel fees of $3,077.81, and ordered a

sheriff's sale of the property.

On November 21, 2013, defendant moved to vacate the entry

of final judgment under Rule 4:50-1. By order dated January 21,

2014, the trial court denied defendant's motion to vacate the

final judgment, and found that plaintiff's three unsuccessful

attempts to effect personal service justified service by mail

pursuant to Rule 4:4-5(a).

II.

Defendant moved to vacate the entry of final judgment of

foreclosure under Rule 4:50-1(a) and (d). Rule 4:50-1 provides,

in pertinent part, that "[o]n motion, with briefs and upon such

terms as are just, the court may relieve a party or the party's

legal representative from a final judgment or order for the

following reasons: (a) mistake, inadvertence, surprise, or

excusable neglect; . . . [or] (d) the judgment or order is

void."

6 A-2649-13T4 "The decision whether to grant such a motion is left to the

sound discretion of the trial court[.]" Mancini v. EDS ex rel.

N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334

(1993). "The trial court's determination . . . warrants

substantial deference, and should not be reversed unless it

results in a clear abuse of discretion." US Bank Nat'l Ass'n v.

Guillaume, 209 N.J. 449, 467 (2012). We must hew to that

standard of review.

III.

Defendant first argues the final judgment of foreclosure

was void under Rule 4:50-1(d), because service of the summons

and complaint was insufficient. However, defendant was

indisputably aware of plaintiff's complaint in February 2013,

when her attorney contacted plaintiff and requested vacation of

the default. Nonetheless, she failed to challenge the

sufficiency of service in her June 12, 2013 opposition to the

entry of a final judgment. Indeed, defendant did not raise any

argument relating to the sufficiency of service until her

November 20, 2013 motion to vacate final judgment, nearly

sixteen months after the foreclosure complaint was served by

mail. Because of defendant's delay in raising this claim

despite having notice of the complaint, she "was not equitably

entitled to vacate the judgment." See Deutsche Bank Tr. Co. Am.

7 A-2649-13T4 v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012) (holding

the defendant's delay in raising the issue of plaintiff's

standing until a last-ditch Rule 4:50-1(d) motion barred

relief). In any event, plaintiff's service by mail complied

with New Jersey's Court Rules.

A.

"The primary method of obtaining in personam jurisdiction

over a defendant in this State is by causing the summons and

complaint to be personally served within this State pursuant to

R. 4:4-3[.]" R. 4:4-4(a). However, "in personam jurisdiction

may be obtained by mail under the circumstances and in the

manner provided by R. 4:4-3." R. 4:4-4(a).

Rule 4:4-3(a) provides, in pertinent part:

If personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7, service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant . . . . The party making service may, at the party's option, make service simultaneously by registered or certified mail and ordinary mail, and if the addressee refuses to claim or accept delivery of registered mail and if the ordinary mailing is not returned, the simultaneous mailing shall constitute effective service. . . . Return of service shall be made as provided by R. 4:4-7.

Rule 4:4-7 provides, in pertinent part:

8 A-2649-13T4 If service is made by mail, the party making service shall make proof thereof by affidavit which shall also include the facts of the failure to effect personal service and the facts of the affiant's diligent inquiry to determine defendant's place of abode, business or employment. With the proof shall be filed the affidavit or affidavits of inquiry, if any, required by R. 4:4-4 and R. 4:4-5.

Here, plaintiff filed a Certification of Inquiry/Mailing. See

R. 1:4-4(b) (allowing certifications instead of affidavits).

That certificate complied with all of the requirements set forth

in Rule 4:4-7.

Of course, "[s]ervice by mail is not effective" under Rule

4:4-3 "unless plaintiff first made 'a reasonable and good faith

attempt' to serve defendant personally." City of Passaic v.

Shennett, 390 N.J. Super. 475, 483 (App. Div. 2007) (quoting R.

4:4-3(a)). Here, plaintiff employed a private process server

who certified he/she unsuccessfully attempted, on at least three

separate occasions, to serve defendant with plaintiff's

complaint and summons in accordance with Rule 4:4-3.

Further, as "described with specificity in" the

Certification of Inquiry/Mailing, plaintiff made a "diligent

inquiry to determine defendant's place of abode" before making

mail service. R. 4:4-7. Plaintiff employed a private

investigator who relied on numerous sources, including the

postmaster, the DMV, telephone records, tax records, creditors,

9 A-2649-13T4 and a neighbor to determine defendant's correct address. Every

source indicated defendant continued to reside at the encumbered

property. Given plaintiff's repeated efforts at making personal

service and its subsequent diligent inquiries to confirm

defendant's address, service by mail was appropriate.

"Where service is made by registered or certified mail and

simultaneously by regular mail," the plaintiff must file "the

printout of the electronic confirmation of delivery," "provided

by the U.S. Postal Service," or proof that the registered or

certified mail was "unclaimed." R. 4:4-7. Here, plaintiff

included with its Certification of Inquiry/Mailing a copy of the

printout from the USPS website indicating the certified mail

went unclaimed. Ibid. This was sufficient proof.

Defendant contends that plaintiff was required to obtain a

court order before resorting to mail service under Rule 4:4-

3(a)(1). However, Rule 4:4-4 provides that "[i]f service can be

made by any of the modes provided by this rule, no court order

shall be necessary." R. 4:4-4(b)(3). Rule 4:4-4(a) permits

mail service pursuant to Rule 4:4-3. Rule 4:4-3(a) only

requires "a reasonable and good faith attempt" to effect

personal service before resorting to service by mail.

Defendant argues that plaintiff should have filed its

Certification of Inquiry/Mailing prior to resorting to mail

10 A-2649-13T4 service. However, the affidavit or certification must be filed

after the mailing, because it must memorialize not only the

diligent inquiry but also "proof of service," including "the

return receipt card, or the printout of the electronic

confirmation," stating whether the certified mail was delivered

or unclaimed. R. 4:4-7.

Rule 4:4-7 provides that "[p]roof of service shall be

promptly filed with the court within the time during which the

person served must respond thereto[.]" Thus, plaintiff should

have filed the Certification of Inquiry/Mailing "within 35 days

after service of the summons and complaint on that defendant."

R. 4:6-1(a).

Instead, plaintiff filed the Certification of

Inquiry/Mailing four months after effecting service by mail.

However, defendant did not challenge the untimely filing of the

certificate in the Chancery Division. Defendant fails to show

plain error. R. 2:10-2. "Failure to make proof of service does

not affect the validity of service." R. 4:4-7. Moreover,

plaintiff filed the Certification of Inquiry/Mailing before

entry of default, and five months before moving for entry of

default judgment. Thus, defendant had the certification

available to her when opposing entry of default judgment. She

has failed to show that the erroneous delay in filing the

11 A-2649-13T4 certification was "clearly capable of producing an unjust

result." R. 2:10-2.

Defendant next argues that the Certification of

Inquiry/Mailing was insufficient because plaintiff failed to

conduct various other searches, including a title search through

surrogate courts, a vital statistics search, a grantor-grantee

search, or a search of the New Jersey Department of Banking and

Insurance records. However, our Court Rules do not require

specific searches, but only require a "diligent inquiry" before

resorting to service by mail. R. 4:4-7. As set forth above,

plaintiff performed a diligent inquiry. Moreover, defendant

does not argue that such searches would have led to plaintiff

discovering a different address for defendant. Cf. M & D

Assocs. v. Mandara, 366 N.J. Super. 341, 354 (App. Div.)

(finding an inquiry insufficient where search of motor vehicle

and voting records would have disclosed an address for service),

certif. denied, 180 N.J. 151 (2004). Instead, defendant's

certification admits that she has resided at the encumbered

property for thirty-five years. Thus, we find no merit in

defendant's argument.

B.

Defendant contends service by mail had to be performed

under Rule 4:4-4(b)(1). Rule 4:4-4(b)(1) provides for service

12 A-2649-13T4 "[b]y mail or personal service outside the state." "Paragraph

(b)(1) is the long-arm provision, prescribing the modes of

service by which personal jurisdiction may be obtained over a

person not present in New Jersey," including by "mailed

service." Pressler & Verniero, Current N.J. Court Rules,

comment 3 on R. 4:4-4 (2016). Specifically, Rule 4:4-4(b)(1)(C)

allows out-of-state service by mail "[i]f it appears by

affidavit satisfying the requirements of R. 4:4-5(b) that

despite diligent effort and inquiry personal service cannot be

made in accordance with paragraph (a) of this rule[.]" Because

plaintiff served defendant within New Jersey, service by mail

was governed by Rule 4:4-3(a) rather than Rule 4:4-4(b)(1)(c).

Defendant also argues that plaintiff's service by mail

never became effective pursuant to Rule 4:4-4(c) because

defendant did not answer the complaint or otherwise appear

within sixty days. Rule 4:4-4(c) permits "[o]ptional mailed

service" without having to attempt personal service, "provided,

however, that such service shall be effective for obtaining in

personam jurisdiction only if the defendant answers the

complaint or otherwise appears in response thereto, and provided

further that default shall not be entered against a defendant

who fails to answer or appear in response thereto." However,

"[t]his prohibition against entry of default shall not apply to

13 A-2649-13T4 mailed service authorized by any other provision of these

rules." Ibid.

Here, "plaintiff did not serve defendant pursuant to [Rule

4:4-4(c)]." Citibank, N.A. v. Russo, 334 N.J. Super. 346, 351

(App. Div. 2000). Rather, plaintiff successfully made service

by mail pursuant to Rule 4:4-3(a) after attempting personal

service. Service by mail under Rule 4:4-3(a) "is valid even if

the defendant does not answer or appear," Russo, supra, 334 N.J.

Super. at 352, and "is as fully effective as personal service.

Thus, entry of default is permitted provided only that the

conditions of the rule are complied with." Pressler & Verniero,

Current N.J. Court Rules, comment on R. 4:4-3 (2016).

C.

The trial court found service proper under Rule 4:4-5(a).

Rule 4:4-5(a) is entitled "Methods of Obtaining In Rem

Jurisdiction." Rule 4:4-5(a)(2) permits "service by mail as

prescribed by R. 4:4-4(b)(1)(C)" in "actions affecting specific

property, or any interest therein, or any res within the

jurisdiction of the court," if "it shall appear by affidavit of

the plaintiff's attorney or other person having knowledge of the

facts, that a defendant cannot, after diligent inquiry as

required by this rule, be served within the State." R. 4:4-

5(a).

14 A-2649-13T4 We need not address when "service may" be made pursuant to

Rule 4:4-5(a) in an action for foreclosure under a mortgage. 2 It

is sufficient to note that service under Rule 4:4-5(a) was not

necessary here because defendant could be and was "served within

the State" by mail service under Rule 4:4-3(a). R. 4:4-5(a).

Where, as here, the sole owner of a property was not an absent

defendant and could be served within the State by mail as

authorized under Rule 4:4-3(a), there was no need to resort to

Rule 4:4-5(a)'s "provision for personal service outside this

State," "service by mail [outside the State] as prescribed by R.

4:4-4(b)(1)(A)," or service "by publication." R. 4:4-5(a)(1),

(2), (3). See M & D Assocs., supra, 366 N.J. Super. at 353

(service by publication under Rule 4:4-5 "is an alternative

method of service" that is only available when "the defendant is

not available for service within the State"); see also Montville

v. Block 69, Lot 10, 74 N.J. 1, 20 n.9 (1977) (service by

regular mail and certified mail, return receipt requested, "to

notify a landowner of the foreclosure proceeding," adequately

2 See De Sena v. Prudential Ins. Co., 117 N.J. Super. 235, 243 (App. Div. 1971) ("If the judgment sought will affect the interests of particular persons in designated property, the action is quasi in rem," and service may be effected under Rule 4:4-5); see also Highland Lakes Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99, 114 n.5 (2006) ("foreclosure is a quasi in rem action").

15 A-2649-13T4 "comports with various Court Rules which concurrently deal with

notice requirements," including Rule 4:4-5).

Because defendant was properly served under Rule 4:4-3(a),

an affidavit of inquiry, "if any, [was not] required by R. 4:4-4

and R. 4:4-5." R. 4:4-7. Thus, we need not determine whether

the Certification of Inquiry/Mailing met the requirements for

affidavits under those rules imposed by Rule 4:4-5(c).

D.

Defendant argues that the Chancery Division should have

held a plenary hearing to determine whether she was properly

served. We set aside a trial judge's decision to deny a plenary

hearing only if the judge abused his or her discretion. Colca

v. Anson, 413 N.J. Super. 405, 421-22 (App. Div. 2010). Here,

defendant never asked the Chancery Division to hold a plenary

hearing, and she raised no material issues of disputed fact for

which an evidentiary hearing was required. Her certification

that "I have never been served documents of foreclosure or

judgments against me" and "never knew about the judgments and

all of the prior proceedings until I retained my attorney" in

Spring 2011 does not deny that she received the summons and

complaint served by mail in July 2012. In any event, service by

mail was properly effected under Rule 4:4-3(a).

16 A-2649-13T4 Defendant argues that plaintiff's service by mail offends

constitutional due process requirements. "[T]he only

constitutional requirements of service of process" is "'notice

reasonably calculated, under all the circumstances, to apprise

interested parties of the pendency of the action and afford them

the opportunity to present their objections.'" O'Connor v.

Altus, 67 N.J. 106, 126 (1975) (quoting Mullane v. Cent. Hanover

Bank & Tr. Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed.

865, 873 (1950)). Here, due process was satisfied because

plaintiff made a diligent inquiry confirming defendant's

address, and then effected service to that address by regular

mail and certified mail, return receipt requested. "[C]ertified

mail, return receipt requested, is a mode of service meeting due

process requirements." Shannon v. Acad. Lines, Inc., 346 N.J.

Super. 191, 197 (App. Div. 2001). Indeed, where other service

is not possible, "due process is satisfied when a defendant, who

cannot be found for personal service but is a resident of the

State at the time of the actionable event, is served by ordinary

mail at his or her last known address." First Resolution Inv.

Corp. v. Seker, 171 N.J. 502, 514 (2002) (citing Feuchtbaum v.

Constantini, 59 N.J. 167, 181 (1971)).

17 A-2649-13T4 Service by mail was authorized by our Court Rules and did

not offend due process. Therefore, the judgment was not void

under Rule 4:50-1(d).

IV.

Defendant alternatively argues she showed excusable neglect

under Rule 4:50-1(a) for failing to challenge plaintiff's

complaint. "[A] defendant seeking to reopen a default judgment

[because of excusable neglect] must show that the neglect to

answer is excusable under the circumstances and that [s]he has a

meritorious defense." Mancini, supra, 132 N.J. at 335

(alterations in original) (citation omitted); see Intek Auto

Leasing, Inc. v. Zetes Microtech Corp., 268 N.J. Super. 426,

430-31 (App. Div. 1993).

Defendant argues that, although she received and responded

to plaintiff's first motion for default judgment, she was not

given proper notice of plaintiff's "second and third motions"

for final judgment. The record only contains two motions filed

by plaintiff, both of which were served by mail on defendant at

the encumbered property as authorized by Rule 1:5-2. There is

"a presumption that mail properly addressed, stamped, and posted

was received by the party to whom it was addressed." SSI Med.

Servs. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J.

614, 621 (1996). Plaintiff submitted certifications that it

18 A-2649-13T4 satisfied those requirements. Because defendant was properly

put on notice of the motions for final judgment, she cannot show

excusable neglect.

In addition, defendant has not shown a meritorious defense.

"[T]he only issues in a foreclosure action are the validity of

the mortgage, the amount of the indebtedness, and the right of

the mortgagee to resort to the mortgaged premises." Sun NLF

Ltd. P'ship v. Sasso, 313 N.J. Super. 546, 550 (App. Div.),

certif. denied, 156 N.J. 424 (1998). Defendant does not deny

that she entered into the mortgage agreement, nor does she

challenge the amount of indebtedness, or that her failure to

make the monthly payments on the mortgage gave plaintiff the

contractual right to foreclose.

Rather, defendant argues plaintiff had unclean hands.

"Foreclosure is an equitable remedy governed by the operation of

traditional equitable principles and is subject to the defense

of unclean hands." N.J. Bank v. Azco Realty Co., 148 N.J.

Super. 159, 166 (App. Div.), certif. denied, 74 N.J. 280 (1977).

The essence of the doctrine of unclean hands, "'which is

discretionary on the part of the court, is that a suitor in

equity must come into court with clean hands and he must keep

them clean after his entry and throughout the proceedings.'"

Marino v. Marino, 200 N.J. 315, 345 (2009) (citations omitted).

19 A-2649-13T4 Defendant argues that plaintiff initiated the foreclosure

action with unclean hands when it engaged in the practice of

"dual tracking." Dual tracking is the practice of a mortgagor

initiating foreclosure proceedings while also negotiating a

mortgage modification. Guillaume, supra, 209 N.J. at 468-69.

Our Supreme Court has held that practice is lawful in New

Jersey. Ibid.

In Guillaume, borrowers failed to appear in a foreclosure

action and a default judgment was subsequently entered. Id. at

460-61. The defendants attempted to vacate the final judgment

of foreclosure by arguing, among other things, that they were

confused because they were negotiating a "potential loan

modification at a time when the foreclosure action was

underway." Id. at 468. Our Supreme Court held that "[t]here

[was] no evidence that US Bank suggested to the Guillaumes that

it was unnecessary to respond to the foreclosure action; [and]

it expressly advised the Guillaumes that the foreclosure action

could not be ignored." Id. at 468-69.

Here, nothing in the record, including defendant's

certification, suggests that plaintiff misled defendant into

believing she did not have to respond to the foreclosure action.

Engaging in negotiations with defendant regarding a modification

to her mortgage did not preclude plaintiff from seeking

20 A-2649-13T4 foreclosure for defendant's failure to pay back the loan.

"Every [loan modification] application does not guarantee

acceptance." Nat'l Cmty. Bank of N.J. v. G.L.T. Indus., Inc.,

276 N.J. Super. 1, 4 (App. Div. 1994).

Defendant also argues that plaintiff engaged in predatory

lending by extending a mortgage she could not afford, and

tricking her into accepting an adjustable rate mortgage.

However, she does not provide evidence nor published New Jersey

cases to support her argument. Thus, "[w]e will not consider"

defendant's entirely unsupported and "conclusionary statement."

Miller v. Reis, 189 N.J. Super. 437, 441 (App. Div. 1983). In

any event, we note defendant signed documents which made clear

she was agreeing to an adjustable rate mortgage.

Affirmed.

21 A-2649-13T4