WELLS FARGO BANK, N.A. VS. NHIN DANG (F-014747-12, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5635-14T1

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

NHIN DANG,

Defendant-Appellant,

and

MRS. NHIN DANG,

Defendant.
_______________________________

Submitted March 9, 2017 – Decided May 10, 2017

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Atlantic County, Docket No.
F-014747-12.

Law Offices of David J. Khawam, L.L.C.,
attorneys for appellant (Mr. Khawam, on the
brief).

Reed Smith, L.L.P., attorneys for respondent
(Henry F. Reichner, on the brief).

PER CURIAM
 Defendants, Nhin Dang and his wife, Mrs. Nhin Dang, appeal

from a June 4, 2015 final judgment in a residential mortgage

foreclosure action.1 For the reasons that follow, we affirm.

Defendants borrowed $190,400 from Cardinal Financial Company,

L.P. (Cardinal), on November 15, 2007, in connection with the

purchase of a residential property. Defendants agreed to monthly

payments of $1203.46, with a fixed interest rate of 6.5% annually.

A note payable over thirty years secured the loan. Defendants

executed a mortgage to secure the note, naming Mortgage Electronic

Registration Systems, Inc. (MERS) as the nominee for Cardinal, its

successors, and assigns.

The note was subsequently endorsed to Franklin American

Mortgage Company, who then endorsed the note to plaintiff Wells

Fargo Bank, N.A. around the same time defendants defaulted on the

loan in June 2011. Plaintiff sent notices of intention to

foreclose on July 3, 2011, and December 19, 2011. MERS assigned

the mortgage to plaintiff on September 1, 2011, and the Atlantic

County Clerk recorded the assignment on September 8, 2011.

Plaintiff filed a foreclosure complaint against defendants

on July 27, 2012. Defendants filed an answer and counterclaims

1 The final judgment refers to both Mr. and Mrs. Nhin Dang. We
refer to Mrs. Nhin Dang here generically, as Mr. Nhin Dang is the
only signature on the mortgage application, despite her being a
party in the action.

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on September 18, 2012. Plaintiff moved to strike defendants'

answer and dismiss the counterclaims, which the court treated as

unopposed, because counsel for defendants did not send any

opposition until the day before the hearing. Finding no basis for

defendants' counterclaims, the trial judge granted plaintiff's

motion and the case went back to the Office of Foreclosure.

Plaintiff and defendants entered into mediation in January

2013, but by March, defendants ceased communicating and the

mediation terminated. On December 20, 2013, the court issued a

foreclosure dismissal notice, informing the parties the case would

be dismissed for lack of prosecution under Rule 4:64-8 unless

plaintiff took steps to either litigate the matter or file a

certification of exceptional circumstances. Plaintiff mailed a

notice pursuant to of the Fair Foreclosure Act (FFA), N.J.S.A.

2A:50-58, to defendants on January 8, 2014.

On January 17, 2014, plaintiff filed an updated certification

of exceptional circumstances and mailed a notice of motion for

final judgment to defendants. The trial court found no exceptional

circumstances and dismissed plaintiff's action without prejudice

for lack of prosecution, pursuant to Rule 4:64-8, subject to

reinstatement for good cause shown.

It was not until December 17, 2014, that plaintiff moved to

reinstate the case to active status. Plaintiff's motion was

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unopposed, and on January 13, 2015, the trial judge ordered the

matter reinstated upon the filing of a motion for final judgment

with the Office of Foreclosure within 120 days. Defendants moved

for reconsideration, which the court denied on March 10, 2015.

Plaintiff moved for final judgment on April 30, 2015. On

June 4, 2015, the trial judge ordered defendants to pay plaintiff

$244,889.78 at an interest rate of 6.5%, along with attorney's

fees of $2598.90, and ordered the mortgaged property sold to

satisfy the debt.

This appeal followed. We begin by noting defendants' notice

of appeal (NOA) only addresses the June 4, 2015 final judgment,

but defendants' arguments on appeal challenge the January 13, 2015

motion to reinstate the foreclosure complaint and the March 10,

2015 denial of defendants' motion for reconsideration. Rule 2:5-

1(f)(3)(A) provides, "[I]t is only the judgments or orders or

parts thereof designated in the [NOA] which are subject to the

appeal process and review." Pressler & Verniero, Current N.J.

Court Rules, cmt. 6.1 on R. 2:5-1 (2011). We will consider orders

not referenced in the NOA if the civil case information statement

(CIS) places the adversary on notice of the intended scope of

appeal. See Ahammed v. Logandro, 394 N.J. Super. 179, 187-88

(App. Div. 2007).

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 We may also consider an order not identified in the NOA where

"the basis for the motion judge's ruling on [an order and

subsequent order] may be the same. In such cases, an appeal [from

the subsequent order] may be sufficient for an appellate review

of the [earlier order], particularly where those issues are raised

in the CIS," Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455,

461 (App. Div.), certif. denied, 174 N.J. 544 (2002), by "clearly

indicat[ing]" the earlier order is "one of the primary issues

presented by the appeal." Synnex Corp. v. ADT Sec. Servs., Inc.,

394 N.J. Super. 577, 588 (App. Div. 2007).

The civil CIS herein does not clearly provide plaintiff with

notice defendants are appealing from the January 13, 2015 order

reinstating the complaint and the March 10, 2015 denial of

defendants' motion for reconsideration, nor are the aforementioned

motions based primarily on the same reasoning as the June 4, 2015

final judgment. Our review is therefore limited to entry of the

June 4, 2015 final judgment.

Defendants' argue the final judgment must be vacated because

plaintiff failed to comply with the requirements of the FFA,

specifically, the notice requirement. We disagree.

The FFA was designed to ensure homeowners were given

opportunity to pay their mortgages and keep their homes. N.J.S.A.

2A:50-54. A central component of the FFA requires lenders to

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provide timely and clear notice to homeowners of an impending

foreclosure action. US Bank Nat'l Ass'n. v. Guillaume, 209 N.J.

449, 470 (2012). N.J.S.A. 2A:50-56(a) requires homeowners be

given notice of the lender's intention to foreclose at least thirty

days in advance of the commencement of the action. The notice

must be in writing, mailed to the debtor by registered or certified

mail, and must "clearly and conspicuously state in a manner

calculated to make the debtor aware of the situation." N.J.S.A.

2A:50-56(b) and (c).

Defendants argue, because the foreclosure complaint was

dismissed without prejudice for lack of prosecution pursuant to

Rule 4:64-8 on February 7, 2014, plaintiff should have filed

another thirty-day notice of its intention to foreclose pursuant

to N.J.S.A. 2A:50-56 when it submitted its motion to reinstate the

complaint in December 2014.

There is no case law or statutory authority to support

defendants' position. The initial notice of intention to foreclose

satisfied N.J.S.A. 2A:50-56, and the complaint was not dismissed

due to a deficiency in notice; the complaint was dismissed for a

lack of prosecution pursuant to Rule 4:64-8. Rule 4:64-8 states,

when a foreclosure matter has been pending for
twelve months without any required action
having been taking therein, the . . . Court
shall issue written notice to the parties
advising that the matter as to . . . defendant

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 will be dismissed without prejudice [thirty]
days following the date of the notice.

The matter may be reinstated after dismissal on a motion for good

cause shown. Ibid. The "dismissal of a foreclosure action,

without prejudice, has no effect on the underlying contractual

obligations of the parties and 'does not bar reinstitution of the

same claims in a later action.'" EMC Mortg. Corp. v. Chaudri, 400

N.J. Super. 126, 140 (App. Div. 2008) (quoting Woodward-Clyde

Consultants v. Chem. & Pollution Scis., Inc., 105 N.J. 464, 472

(1987)).

Defendants' obligation to pay their mortgage continued after

dismissal of the initial complaint. The original notice of

intention to foreclose provided defendants sufficient notice,

pursuant to N.J.S.A. 2A:50-56, of plaintiff's intention to

foreclose. The dismissal of the initial complaint did not forego

defendants' contractual obligations to plaintiff. Defendants also

had notice of plaintiff's motion to reinstate the complaint in

December 2014, which they did not oppose. No statutory authority

or case law requires plaintiff to provide defendant with a second

notice of intention to foreclose prior to moving to reinstate the

complaint after dismissal without prejudice for lack of

prosecution pursuant to Rule 4:64-8.

Affirmed.

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