NOT FOR PUBLICATION WITHOUT THE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-1839-17T4
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
DEBRA LEIGH BARTHOLOMEW
and MORRIS E. BARTHOLOMEW,
Defendants-Appellants.
Submitted February 6, 2019 – Decided April 16, 2019
Before Judges Ostrer and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. F-
004391-17.
Debra Leigh Bartholomew and Morris E. Bartholomew,
appellants pro se.
Reed Smith, LLP, attorneys for respondent (Henry F.
Reichner, of counsel and on the brief).
PER CURIAM
Defendants Debra and Morris Bartholomew appeal three orders entered
during the course of this residential foreclosure action. After a review of the
contentions in light of the record and applicable legal principles, we affirm.
In 2009, defendants executed a note to American Mortgage Network, Inc.,
for $146,160 secured by a mortgage on their property. The mortgage was
subsequently assigned to plaintiff Wells Fargo Bank, N.A. in 2010.
Defendants and plaintiff entered into a modification agreement in April
2016. On May 1, 2016, defendants defaulted on the modified note and mortgage.
A notice of intention to foreclose (NOI) advised defendants of the required
payment to cure the default. Although defendants did make several payments
over the next few months, they failed to pay the specified amount necessary to
cure the default by the required date.
A complaint for foreclosure was filed February 22, 2017. Defendants
filed an answer with affirmative defenses. Thereafter, plaintiff moved for
summary judgment. Defendants' opposition to the motion was filed July 6,
2017. In a July 7, 2017 oral decision, the judge stated the motion was
unopposed. He found plaintiff had established a prima facie right to foreclose
and granted it summary judgment.
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In September 2017, plaintiff moved for final judgment. Defendants
objected to the amount due calculation, asserting plaintiff lacked proofs that it
had paid property taxes and disputing the amount of the late charge. On October
27, 2017, the judge found plaintiff had supported its calculations for the late
charges and property taxes and, therefore, denied defendants' motion. Final
judgment was entered on November 1, 2017.
Defendants appeal from the July 7, October 27, and November 1, 2017
orders. We address each in turn.
In appealing the July 7, 2017 grant of summary judgment to plaintiff,
defendants assert the note was not certified to be a true copy of the original, and
there were improprieties with the assignment of mortgage and NOI. Granting
all favorable inferences to the non-movant defendants, as we must, we fail to
discern any genuine issues of material facts. R. 4:46-2(c). Plaintiff
demonstrated its standing to foreclose on the property based on the assignment
of the mortgage, which pre-dated the foreclosure complaint. Plaintiff's
certification in support of its motion advised it possessed the note prior to
institution of the suit.
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It appears the trial judge did not have defendants' opposition to the
summary judgment at the time of his ruling. 1 A review of defendants' opposition
papers reveals they raised issues identical to those presented to us on appeal. As
we have found defendants' arguments meritless, we find the judge's oversight to
be of no consequence. We also note defendants did not move for a
reconsideration of the judge's ruling to permit the court to address their
opposition.
Defendants further contend the court improperly denied their motion to
fix the amount due, asserting plaintiff violated the Home Ownership Security
Act (HOSA), N.J.S.A. 46:10B-22 to -35, by charging an excessive late fee.
Although defendants had not demonstrated their loan was subject to HOSA, the
trial judge nevertheless considered the argument. He noted the "[p]roof of
[a]mount [s]chedule" plaintiff submitted listed its calculations for late charges.
The judge stated that defendants' calculation failed to account for the interest on
the escrow component of the amount due, in addition to the late fees assessed
on principal and interest. Adding the late fee charges on the escrow component
logically resulted in a higher total payment due for late charges. Therefore, the
1
Defendants do not raise this omission as an argument on appeal.
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judge found there was no violation of HOSA. We are satisfied the October 27,
2017 order is supported by the evidence presented in the record.
For the reasons stated, entry of final judgment was proper under Rule
4:64-1(d).
Affirmed.
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