OCWEN LOAN SERVICING, LLC VS. ROBERT M. VARGAS(F-32025-14, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-0602-15T4

OCWEN LOAN SERVICING, LLC,

Plaintiff-Respondent,

v.

ROBERT M. VARGAS,

Defendant-Appellant.
___________________________________

Argued May 16, 2017 – Decided August 7, 2017

Before Judges Fisher and Ostrer.

On appeal from the Superior Court of New
Jersey, Chancery Division, Bergen County,
Docket No. F-32025-14.

Justin M. Gillman argued the cause for
appellant (Gillman and Gillman, LLC,
attorneys; Mr. Gillman, on the briefs).

Edward W. Chang argued the cause for
respondent (Blank Rome LLP, attorneys; Donna
M. Bates and David A. DeFlece, on the brief).

PER CURIAM

Defendant Robert M. Vargas appeals from the dismissal with

prejudice of counterclaims he filed in response to a foreclosure

action by plaintiff Ocwen Loan Servicing, LLC. Ocwen thereafter
voluntarily dismissed its foreclosure complaint. Because the

trial court failed to explain the basis for its dismissal, we

vacate the court's order and remand for a statement of reasons

pursuant to Rule 1:7-4.

The mortgage has been the subject of a longstanding dispute

over defendant's allegedly delinquent payments. GMAC Mortgage

Corporation of PA (GMAC) was the initial lender when the mortgage

originated in 1994. Defendant first fell behind on mortgage

payments in 1998. He filed for Chapter 13 bankruptcy the following

year. The amount owed GMAC was incorporated in his Chapter 13

plan. Defendant completed the plan in 2003 and received a

discharge from all debts.

This discharge did not end the dispute over payments, however.

GMAC and defendant engaged in at least three rounds of litigation

between 2004 and 2010 over subsequent alleged delinquencies. In

round one, defendant successfully argued before the bankruptcy

court that GMAC improperly sought payment on debts discharged in

the Chapter 13 bankruptcy and that he was current on payments. In

round two, GMAC voluntarily dismissed its action. In round three,

GMAC argued defendant had been in default since April 2006.

Defendant countered, again successfully, that GMAC initially

declared default in error and had thereafter refused to accept

payments, which defendant deposited in an escrow account instead.

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 In May 2012, GMAC itself filed for bankruptcy under Chapter

11. As part of GMAC's liquidation, Ocwen purchased GMAC's interest

in the mortgage. In April 2014, Ocwen sent defendant a notice of

intent to foreclose based on defendant's delinquency since 2006.

A foreclosure action followed in August.

Defendant conceded that payments had not been tendered to

either GMAC or Ocwen for several years. Yet, defendant challenged

Ocwen's foreclosure action by raising affirmative defenses and

seven counterclaims, alleging sweeping common law, state law and

federal law violations. Defendant asserted Ocwen had continued

GMAC's malfeasance and failed to cure GMAC's prior wrongs. Many

of the counterclaims mirrored those defendant raised in prior

proceedings and referenced actions by GMAC, not Ocwen.

In response, Ocwen moved to strike defendant's answer and

dismiss the counterclaims pursuant to Rule 4:6-2(e). In January

2015, the court issued an order mandating that (1) defendant’s

answer and affirmative defenses be stricken "except . . . [as]

related to date of default and amount due," and (2) all

counterclaims be dismissed with prejudice. The court appended

only a brief explanation of its broad dismissal:

The Court finds that there are genuine issues
of material fact related to: 1) the date of
default; and 2) the amount due. All defenses
and counterclaims, except as related to those
two issues, are stricken. The Court will hold

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 a trial on those two narrow issues, and
discovery is limited to those issues only.
Accordingly, Plaintiff's Motion to Strike
Defendant's Answer and Dismiss the Defenses
and Counterclaims is granted in part and
denied in part.

Defendant immediately sought appellate review, but we

dismissed the appeal as interlocutory. That procedural hurdle was

cleared in August 2015 when the court granted Ocwen's motion to

voluntarily dismiss its foreclosure action without prejudice. In

an attached statement of reasons, the court recounted that

"Defendant's Counterclaims were stricken" by the January order,

but did not amplify its reasons.

While the formerly interlocutory order is now final and

appealable, we decline to engage in a substantive review of the

counterclaims until we are able to discern the trial court's reason

for dismissal. Although our review of decisions resulting in the

dismissal of claims is plenary, e.g., Rezem Family Assocs., LP v.

Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div.) (failure

to state a claim), certif. denied, 208 N.J. 368 (2011); Nicholas

v. Mynster, 213 N.J. 463, 478 (2013) (summary judgment), we must

still review the trial court's decision. It is not for us to

consider the matter as if for the first time.

Essential to our task is an understanding of the reasons for

the decision under review. That is why Rule 1:7-4(a) requires

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trial courts to "state clearly [their] factual findings and

correlate them with the relevant legal conclusions" for all orders

appealable as of right. Curtis v. Finneran, 83 N.J. 563, 569-70

(1980); see Rutgers Univ. Student Assembly v. Middlesex Cnty. Bd.

of Elections, 438 N.J. Super. 93, 107 (App. Div. 2014) (failure

to abide by Rule 1:7-4(a) on cross-motions for summary judgment

justified reversal and remand); see also R. 1:6-2(f) (requiring a

statement of reasons for interlocutory orders when "necessary or

appropriate"); Pressler & Verniero, Current N.J. Court Rules,

comment 7 on R. 1:6-2 (2017) (stating explanation for interlocutory

orders is required "by reason of the nature of the matter"). We

rely on trial courts to articulate and explain their conclusions

of fact and law before attempting our own examination. "[A]n

articulation of reasons is essential to the fair resolution of a

case. The failure to perform this duty 'constitutes a disservice

to the litigants, the attorneys and the appellate court.'" O'Brien

v. O'Brien, 259 N.J. Super. 402, 406-07 (App. Div. 1992) (quoting

Curtis, supra, 83 N.J. at 569-70) (applying Rule 1:6-2(f)).

Here, the trial court dismissed defendant's seven distinct

counterclaims with prejudice (and struck most of his answer and

affirmative defenses). The order was appealable as of right after

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Ocwen voluntarily dismissed the foreclosure action.1 The court

did not explain its decision, except to observe there were "genuine

issues of material fact" regarding the default, which apparently

pertained only to Ocwen's action.

As a result of the trial court's silence, we can decipher

neither the legal standard it applied nor the basis for its

dismissal. As to the former, it is unclear whether the court

barred defendant's counterclaims under Rule 4:6-2(e) for failing

to state a claim, or whether the court converted the motion to one

for summary judgment under Rule 4:46 because of the extensive

materials submitted to the court on the motion. See R. 4:6-2(e).

As to the latter, the court did not explain the legal deficiency

in the various causes of action alleged. Given defendant's

multiple assertions, the court's reasons for rejecting each could

have varied widely from claim to claim. Moreover, it is possible

the court dismissed the claims for a reason not raised by the

parties, such as germaneness, R. 4:64-5; however, that would not

explain why the dismissal was with prejudice.

1
Even if the foreclosure action had proceeded and the dismissal
order remained interlocutory, the court was obliged to explain its
reasons because the order substantially affected the parties'
respective rights and the court's reasons were not obvious. See
R. 1:6-2(f).

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 We express no opinion about the merit of defendant's

counterclaims. We are constrained to remand for issuance of

appropriate findings of fact and conclusions of law.

Vacated and remanded. We do not retain jurisdiction.

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