NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1294-13T3
GMAC MORTGAGE, LLC,
Plaintiff-Respondent,
v.
TAMILYNN WILLOUGHBY,
Defendant-Appellant.
__________________________________
Argued December 17, 2014 – Decided April 8, 2015
Before Judges Waugh and Carroll.
On appeal from the Superior Court of New
Jersey, Chancery Division, General Equity
Part, Monmouth County, Docket No. F-19159-
06.
Meghan Chrisner-Keefe argued the cause for
appellant (Denbeaux & Denbeaux, attorneys;
Ms. Chrisner-Keefe and Joshua W. Denbeaux,
on the brief).
Jaime R. Ackerman argued the cause for
respondent (Zucker, Goldberg & Ackerman,
LLC, attorneys; Ms. Ackerman, of counsel and
on the brief).
PER CURIAM
Defendant Tamilynn Willoughby appeals from orders of the
General Equity Part concerning the foreclosure of the mortgage
on her residence by plaintiff GMAC Mortgage, LLC., and its
successor in interest. We affirm.
I.
We discern the following facts and procedural history from
the record on appeal.
Willoughby purchased a residential property in Union Beach
in 2001. In February 2006, she refinanced her mortgage and
obtained a new loan from Security Atlantic Mortgage Corporation,
Inc. She signed a note in the amount of $183,000, as well as a
new mortgage. The note and mortgage were subsequently assigned
to GMAC.
Willoughby defaulted on the note in June 2006, when she
failed to make a monthly installment payment. She continued to
miss payments until GMAC commenced this foreclosure in October
2006. In August 2007, a final judgment of foreclosure was
entered in favor of GMAC in the amount of $205,915.30.
In September 2009, Willoughby sought an order to show cause
(OTSC) seeking to stay the sheriff's sale. The sale was
adjourned and the judge allowed Willoughby to file an
application for mediation.
On May 25, 2010, the parties mediated and agreed upon a
provisional mortgage modification plan. On the same date, they
memorialized the material terms of the agreement in a settlement
memorandum. The agreement required Willoughby to make "a down
payment of $6,000" by June 7, 2010. GMAC was to adjourn the
sale for six weeks, on receipt of the first payment, followed by
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further adjournments of twenty-eight days upon each subsequent
payment.
On June 7, 2011, AMS Servicing, LLC, (AMS), GMAC's
servicing agent, sent Willoughby an offer to enter into a
permanent modification, together with the documents to
effectuate acceptance of the offer. The proposal called for the
first payment by June 24, and established a modified maturity
date of March 1, 2036. Willoughby did not accept this offer.
On December 5, AMS sent Willoughby a second offer of
modification with slightly different terms. Willoughby again
failed to accept the offer. Finally, in May 2012, AMS sent its
final offer for modification, again with slightly different
terms, and again Willoughby failed to accept it.
In the interim, Willoughby continued to make monthly
payments in the amount of $1814.78. On August 30, however, AMS
sent Willoughby a letter returning her mortgage check and
notifying her that it was referring the mortgage for foreclosure
because she had failed to accept the permanent modification.
On September 12, Willoughby filed a pro se motion seeking
enforcement of the May 2010 interim agreement. On September 28,
the trial judge declined to enforce the 2010 agreement and
ordered the parties to reenter mediation. At the mediation on
October 4, GMAC made the following offer to Willoughby:
The following terms have been offered today:
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unpaid principle balance $181,783.82,
interest rate of 6.125%, 360 month term.
Payments to begin on December 1, 2012 in
approximate amount of $1805. By November 1,
borrower to make down payment of approx.
$3630 (representing the 2 returned
payments). If 24 consecutive on time
payments are made, lender would waive
approx. $18,000 in interest. This would not
be a balloon [modification], but approx.
$2500 due on maturity in interest. Approx.
$10000 are being held in suspense, which
would be applied.
[(Emphasis added.)]
During the mediation, Willoughby made the following counter
offer:
I will accept a permanent modification offer
with the following terms.
Application of $10,800 +/— suspense to
escrow [balance].
No down payment.
[Principle balance] 181,783.82
Interest Rate 5%
Term 360 mos
First payment due 12/1/2012
Waiver of $78k interest Upon Signing No 24
[Month] Trial
Balloon at end of 360 months $24k w/o
interest
Once modified lender will contact all credit
bureaus to [correct] borrowers credit.
[(Emphasis added.)]
Willoughby subsequently described the five percent interest rate
in her counteroffer as the most important term for her.
The parties agreed that they would have until November 21
to respond to their respective offers. If an offer were
accepted, implementing documents would be sent to Willoughby by
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December 11. The parties agreed that there would be no further
mediation.
GMAC declined Willoughby's counteroffer via email.
Willoughby did not respond to GMAC's offer. Although Willoughby
sought to make a counteroffer on December 3, it was rejected
based on the agreement that there would be no further
negotiations.
On December 6, Willoughby went to the office of GMAC's
attorney, seeking to accept GMAC's offer. She offered two
cashier's checks, each in the amount of $1814.78. The attorney
told her the modification documents would be sent to her home.
Her acceptance of GMAC's offer was memorialized in an email sent
by GMAC's attorney to the court and all interested parties. The
documents were prepared and sent to Willoughby. However,
Willoughby failed to execute them. GMAC then rescinded the
offer.
In January 2013, GMAC filed a motion to substitute FRT2001-
1 Trust (Trust) as the plaintiff, and to allow the sheriff's
sale to proceed. Willoughby filed a cross-motion seeking to
collect the proceeds of an insurance claim resulting from
Superstorm Sandy and to enforce settlement. She attached an
agreement purporting to be the final modification document sent
to her by GMAC's attorney as an exhibit to her motion. However,
the terms of the document submitted by Willoughby differed
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significantly from the modification agreement Willoughby had
accepted.
On February 22, the trial judge scheduled a plenary hearing
to determine whether Willoughby was entitled to the insurance
proceeds and to enforce the settlement. He also allowed the
sheriff's sale to proceed, following compliance with the filing
of a certificate of diligent inquiry by the Trust. The plenary
hearing was adjourned several times, and ultimately did not take
place.
On August 23, the parties appeared for oral argument before
a new General Equity judge. Willoughby argued for enforcement
of the May 2010 provisional agreement, rather than enforcement
of the permanent modification agreement attached to her motion
papers. The judge found that there was no permanent mortgage
modification because Willoughby had failed to sign the
implementing documents. The judge also denied Willoughby's
application to enforce the provisional agreement, which by its
terms was to have been replaced by a permanent modification of
the mortgage. Finally, the judge denied Willoughby's
application for payment of the insurance proceeds to her.
Willoughby moved for reconsideration, again seeking
enforcement of the May 2010 provisional agreement. The judge
heard argument on October 25, and determined that there was no
basis to reconsider the prior decision because a settlement had
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not been reached and because Willoughby sought enforcement of a
different agreement than she had sought in her underlying
motion. The judge also denied Willoughby's request for an
accounting of the loan, determining that the request was not
properly before her.
The sheriff's sale was scheduled for November 4. The
Trust's attorney sent Willoughby a letter notifying her of the
sale date. Willoughby's attorney sought to file an OTSC to stay
the sale, but failed to pay the required filing fee. Willoughby
applied to us for emergent relief, which we denied on November
4. The sale proceeded as scheduled.
Willoughby's statutory redemption period was to expire on
November 14. On November 11, she filed a motion objecting to
the sale. Willoughby then withdrew the motion, and sought entry
of an OTSC setting aside the sale. On November 20, the judge
held an initial hearing on the application. She granted no
interim relief, but scheduled the return date of the OTSC for
December 19. The judge denied Willoughby's request for an
extension of her redemption period, which relief was not
contained in her application for the OTSC.
The judge held oral argument on December 19. She rejected
Willoughby's argument that she did not have proper notice of the
date of the sale and that the sale price was inadequate. The
judge found that Willoughby had not presented any evidence
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warranting vacation of the sheriff's sale. The judge determined
that "It is obvious to me and it's clear to me that [Willoughby]
knew what the sale date was. She was notified by the sheriff.
She was notified by the plaintiff. And she chose not to appear
or she chose not to do something." On January 14, 2014, the
judge entered an order denying the relief sought in Willoughby's
OTSC. This appeal follows.
II.
Willoughby argues on appeal that the General Equity judge
erred in determining that there was no mortgage modification
agreement, in failing to hold a plenary hearing, in refusing to
order an accounting, and in denying her application to set aside
the sheriff's sale.
We conclude that there was no need for a plenary hearing.
A trial or factfinding hearing is only required when there are
genuine issues of material fact. "The inquiry is 'whether the
evidence presents a sufficient disagreement to require
submission to a [trier of fact] or whether it is so one-sided
that one party must prevail as a matter of law.'" Liberty
Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46
(2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 536 (1995)).
The provisional agreement was not enforceable on a
permanent basis because it was, as its name implies, a temporary
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agreement to be replaced by a permanent mortgage modification
signed by the parties. It is clear from the record that
Willoughby never accepted GMAC's offer of a permanent loan
modification. She never signed the documents tendered by GMAC
to implement its offer, although she had several opportunities
to do so. Instead, she made counteroffers seeking terms more
favorable to her, particularly with respect to the interest
rate. A "counteroffer operates as a rejection because it
implies that the offeree will not consent to the terms of the
original offer and will only enter into the transaction on the
terms stated in the counteroffer." Berberian v. Lynn, 355 N.J.
Super. 210, 217 (App. Div. 2002). There was never a meeting of
the minds with respect to the essential terms of a permanent
modification agreement. Weichert Co. Realtors v. Ryan, 128 N.J.
427, 435 (1992). Because we find no error with respect to the
judge's initial decision, the motion for reconsideration was
properly denied.
The Chancery Division has the authority to set aside a
sheriff's sale and order a resale of the property in the
exercise of its discretion, based on considerations of equity
and justice. First Trust Nat'l Assoc. v. Merola, 319 N.J.
Super. 44, 49 (App. Div. 1999). "The general rule is that when
insufficient notice of a sheriff's sale is given, the preferred
remedy is that which restores the status quo ante to the
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greatest extent possible." New Brunswick Sav. Bank v.
Markouski, 123 N.J. 402 (1991). The court may void the sale if
the party seeks relief promptly, was unaware of the pending
sale, and no innocent third parties would be prejudiced. Ibid.
A judicial sale may be set aside for fraud, accident, surprise,
mistake, irregularities in the conduct of the sale, or for other
equitable considerations. Merola, supra, 319 N.J. at 50.
Willoughby acknowledges that she received notice from the
sheriff that the sale would occur on November 4, 2013. Counsel
for plaintiff also notified Willoughby of the November 4 date.
The sale took place on that date.
We find no error in the judge's refusal to grant relief
based on a screenshot allegedly taken from the Monmouth County
Sheriff's Department website showing a December 9 sale date.
The website clearly states that the Sheriff's Office "does not
warrant the accuracy, completeness, or timeliness of [the
posting]." In addition, Willoughby did not contend that she had
been notified of a December 9 date by the Sheriff or the Trust.
She also acknowledges that, on November 4, the sale was listed
for that day on the Sheriff's Office website. We find it
telling that Willoughby's application for an OTSC was not
accompanied by a certification signed by her and alleging that
she would have appeared at the sale on November 4 but did not do
so because she believed the date had been adjourned, or
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asserting that she had sufficient funds to bid at the sale
whenever it was held.
Willoughby also argues that the sale price at the sheriff's
sale was inadequate. We have held that "inadequacy of price is
not sufficient alone to justify equitable relief." Ibid.
The remaining issues raised on appeal are without merit and
do not warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
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