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Wells Fargo Bank, NA v. Garner

416 N.J. Super. 520, 6 A.2d 481 (App. Div. 2010)

FORECLOSURES; APPEALS — An order granting summary judgment in a foreclosure matter and returning the matter to the Office of Foreclosure is “interlocutory,” and cannot be appealed until after the Office of Foreclosure enters a judgment of foreclosure.

A homeowner executed a note and mortgage. The mortgagee was named as Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for a named company. It was recorded. The borrower defaulted and three days before the foreclosure complaint was filed, MERS assigned the note and mortgage to a bank. The borrower did not dispute her payment default, but filed a contesting answer raising issues “such as the lack of enforceability of the note due to claimed violations of numerous federal statutes.” Her contesting answer was deferred to a judge who granted summary judgment in the bank’s favor. The judge also struck the borrower’s contesting answer, entered a default, and “transferred the matter back to the Office of Foreclosure” to be treated as uncontested.

The borrower “subsequently filed a ‘motion to vacate default’ which was treated by the [lower court] as a motion for reconsideration.” It was denied. The borrower appealed, but the Appellate Division, considering the lower court’s decision as not being a final disposition, dismissed the appeal as “interlocutory.” It did so “because these orders only address[ed] issues relating the mortgagee’s right to foreclose and [did] not resolve any potential issues concerning the amount due.” Consequently, as an interlocutory appeal, the Court would only review the ruling of the lower court if that ruling raised “an important unresolved question of law.” Even though the interlocutory appeal was dismissed, the Court confirmed that the borrower would have permission to “dispute the amount due after she receive[d] the notice of motion for judgment containing proof of the amount due.” At that point, the borrower would have the right to “file an objection with the Office of Foreclosure which [would] refer the dispute for resolution to the [lower court] in the same manner as her contesting answer.”


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