CARRINGTON MORTGAGE SERVICES, LLC VS. DAVID MOORE (F-007711-18, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4084-18T3

CARRINGTON MORTGAGE
SERVICES, LLC,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
June 10, 2020

v. APPELLATE DIVISION

DAVID MOORE and
ELIZABETH MOORE,

Defendants-Appellants,

and

HUDSON UNITED BANK n/k/a
TD BANK, MARY DUNBAR,
and STATE OF NEW JERSEY,

Defendants.
________________________________

Submitted May 26, 2020 – Decided June 10, 2020

Before Judges Sabatino, Sumners and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No. F-
007711-18.

John J. Hopkins, III, attorneys for appellants (John J.
Hopkins III, on the brief).
 Law Offices of Shapiro & DeNardo, LLC, attorneys for
respondent (Elizabeth L. Wassall, on the brief).

The opinion of the court was delivered by

SABATINO, P.J.A.D.

Defendants, David and Elizabeth Moore, appeal the Chancery Division's

April 12, 2019 order denying their motion to vacate a default judgment of

mortgage foreclosure entered against them concerning their house in Port

Monmouth. We affirm.

I.

The Moores bought the house in March 2010, financed with a purchase

money mortgage of $152,192 from First Interstate Financial Corp ("First

Interstate"). In July 2012, First Interstate assigned the mortgage to Bank of

America, N.A. Eventually, the mortgage was assigned, in turn, to the plaintiff

in this case, Carrington Mortgage Services, LLC ("Carrington").

On October 29, 2012, the house was severely damaged by flooding during

Superstorm Sandy. The local building inspector determined the damage to the

house was so extensive that it needed to be rebuilt.

In February 2015, the Moores defaulted on their mortgage payments.

They have not made any payments in the ensuing five years.

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 The Moores attempted to get payment from their flood insurance company

and their homeowners' insurer. When those efforts failed to produce a

satisfactory recovery, the Moores filed a lawsuit in April 2015 in the United

States District Court for the District of New Jersey against the two insurance

companies.

The Moores also named as a co-defendant in their federal action Bank of

America, Carrington's predecessor in interest. Among other things, the federal

complaint claimed the bank should be discharged from its right to receive

mortgage payments from the Moores, and instead only get recovery from

whatever insurance proceeds were payable. The Moores also sought from the

bank a refund of mortgage payments that they had previously made, arguing that

a so-called "novation of contract" following the superstorm had relieved them

of their duty to pay.

The bank and the two insurers each moved to dismiss the federal lawsuit.

On April 22, 2016, District Judge Madeline Cox Arleo granted the bank's

motion.1

1
Appellants' counsel has only furnished us with a portion of the materials from
the federal litigation. Counsel did supply a copy of the April 22, 2016 order
dismissing the claims against the bank. However, counsel did not supply us

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 In addition, the District Judge granted summary judgment dismissing the

Moores' claims against their homeowners' insurer, finding those claims were

time-barred under the terms of the policy. 2 Later, in 2018, the District Judge

also granted summary judgment to the flood insurance company, likewise

concluding those claims were time-barred.3 The Moores apparently did not

appeal those orders.

In April 2018, Carrington filed the present mortgage foreclosure action.

The Moores did not respond to the foreclosure complaint, or Carrington's

with a transcript or copy of the judge's reasoning, or a copy of the bank's motion
papers specifying the grounds on which it had based its dismissal motion.
2
Moore v. Farmers Mut. Fire Ins. Co. of Salem Cty., et al, No. CV 15-6418,
2016 WL 11220847, at *1 (D.N.J. Apr. 20, 2016). We take judicial notice of
this opinion pursuant to N.J.R.E. 201, and we cite to it pursuant to the exception
of Rule 1:36-3. The opinion reflects that, before filing suit, the Moores did
obtain a modest net recovery of $439.97 ($1,439.97, minus a $1,000 deductible)
from the homeowners' insurer. Ibid.
3
Moore v. Farmers Mut. Fire Ins. Co. of Salem Cty., et al., No. CV 15-6418,
2018 WL 10151931, at *1 (D.N.J. Sept. 17, 2018). We likewise take judicial
notice of this related opinion. The opinion reflects that the flood insurer did
issue a pre-suit check jointly to the Moores and the bank in March 2013 for the
sum of $64,611.93. Ibid. We are not advised how much, if any, of that payment
was received by the Moores or used for repairs, and how much, if any, was taken
by the bank and applied to the outstanding mortgage loan.

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summary judgment motion and defaulted. Final judgment was entered against

them on December 11, 2018.

The Moores made two unsuccessful emergent attempts in the trial court to

stay the Sheriff's sale, but it nevertheless went forward. The property was

acquired at auction by Carrington in March 2019.

The Moores moved under Rule 4:50-1 to vacate the default judgment.

They chiefly argued that, under the entire controversy doctrine, Carrington

cannot litigate the foreclosure case in state court because its predecessor , Bank

of America, was a party in the earlier federal action. They contended the bank

was obligated to file a counterclaim against them in the federal case to protect

its rights but did not do so. They argued the entire controversy doctrine thereby

precludes the mortgagee from filing suit for foreclosure in state court.

After hearing oral argument, Judge Katie A. Gummer issued a lengthy oral

decision rejecting the Moores' contentions and denying their motion to set aside

the foreclosure judgment.

II.

On appeal, the Moores reiterate their contention that Carrington's right to

pursue a foreclosure action in this state court is barred by the previous federal

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litigation concerning insurance coverage. 4 We reject that argument,

substantially for the wise reasons detailed in Judge Gummer's bench opinion.

We amplify the judge's analysis with several observations.

In general, the disposition of a motion under Rule 4:50-1 to vacate a

judgment is entrusted to the discretion of the trial court. Hodgson v. Applegate,

31 N.J. 29, 37 (1959). The trial court's decision to grant or deny such a motion

should not be disturbed on appeal unless it represents a "clear abuse of

discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994);

Orner v. Liu, 419 N.J. Super. 431, 435 (App. Div. 2011). The judge in this case

did not misapply her discretion in denying relief to the Moores, because she

correctly recognized that their invocation of the entire controversy doctrine is

critically flawed.

The entire controversy doctrine, as codified in Rule 4:30A, generally

requires parties to an action to raise all transactionally related claims in that

4
The Moores also raised an argument in their reply brief below asserting that the
foreclosure complaint was not properly served upon them. Judge Gummer held it
was improper to raise this argument for the first time in the reply brief and, moreover,
there was no "certification of someone with personal knowledge as required
under Rule 1:6-6." We agree that their "unsigned, unsupported" assertion of
improper service is inadequate and accordingly reject this barely asserted
argument on appeal.

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same action. As our Supreme Court recently noted, the "doctrine 'seeks to impel

litigants to consolidate their claims arising from a single controversy whenever

possible.'" Dimitrakopoulos v. Borrus, Goldin, Foley, Vignuolo, Hyman &

Stahl, P.C., 237 N.J. 91, 98 (2019) (quoting Thornton v. Potamkin Chevrolet, 94

N.J. 1, 5 (1983)). "The doctrine serves 'to encourage complete and final

dispositions through the avoidance of piecemeal decisions and to promote

judicial efficiency and the reduction of delay.'" Ibid. (quoting Wadeer v. N.J.

Mfs. Ins. Co., 220 N.J. 591, 610 (2015)).

Subject to equitable considerations, the doctrine disfavors successive suits

regarding the same controversy. See DiTrolio v. Antiles, 142 N.J. 253, 267

(1995). Therefore, when a party fails to assert a claim that the entire controversy

doctrine required be joined in an action, the court has the authority to bar that

claim. R. 4:30A.

Even so, "the boundaries of the entire controversy doctrine are not

limitless. It remains an equitable doctrine whose application is left to judicial

discretion based on the factual circumstances of individual cases." Highland

Lakes Country Club & Cmty. Ass'n v. Nicastro, 201 N.J. 123, 125 (2009)

(quoting Oliver v. Ambrose, 152 N.J. 383, 395 (1998)). As such, "the polestar

for the application" of the doctrine is "judicial fairness," and "a court must apply

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the doctrine in accordance with equitable principles, with careful attention to

the facts of a given case." Dimitrakopoulos, 237 N.J. at 114 (quoting K-Land

Corp. No. 28 v. Landis Sewerage Auth., 173 N.J. 59, 74 (2002)).

The doctrine should not be applied "where to do so would be unfair in the

totality of the circumstances and would not promote any of its objectives,

namely, the promotion of conclusive determinations, party fairness, and judicial

economy and efficiency." Dimitrakopoulos, 237 N.J. at 114 (quoting K-Land,

173 N.J. at 70). When analyzing fairness, "courts should consider fairness to

the court system as a whole, as well as to all parties." Wadeer, 220 N.J. at 605.

The doctrine applies to successive suits with related claims. DiTrolio, 142

N.J. at 267. "In determining whether successive claims constitute one

controversy for purposes of the doctrine, the central consideration is whether the

claims against the different parties arise from related facts or the same

transaction or series of transactions." Ibid. It is the factual context "giving rise

to the controversy itself, rather than a commonality of claims, issues or parties,

that triggers the requirement of joinder to create a cohesive and complete

litigation." Mystic Isle, 142 N.J. at 323 (citing DiTrolio, 142 N.J. at 267-68).

The court, not the parties, retains the ultimate authority to control the

joinder of parties and claims. Id. at 324. Application of the entire controversy

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doctrine is "'left to judicial discretion based on the factual circumstances of

individual cases.'" Oliver v. Ambrose, 152 N.J. 383, 395 (1998) (quoting

Brennan v. Orban, 145 N.J. 282, 291 (1996)). The doctrine's joinder

requirements may be relaxed on the grounds of "equitable considerations." Id.

at 395-96.

The impact of the entire controversy doctrine is more limited in the

context of foreclosure actions. As Rule 4:64-5 instructs:

Unless the court otherwise orders on notice and for
good cause shown, claims for foreclosure of mortgages
shall not be joined with non-germane claims against the
mortgagor or other persons liable on the debt. Only
germane counterclaims and cross-claims may be
pleaded in foreclosure actions without leave of court.
Non-germane claims shall include, but not be limited
to, claims on the instrument of obligation evidencing
the mortgage debt, assumption agreements and
guarantees. A defendant who chooses to contest the
validity, priority or amount of any alleged prior
encumbrance shall do so by filing a cross-claim against
that encumbrancer, if a co-defendant, and the issues
raised by the cross-claim shall be determined upon
application for surplus money pursuant to R. 4:64-3,
unless the court otherwise directs.

[R. 4:64-5 (emphasis added).]

In applying these principles, the trial court first observed that it had not

been provided with the note for the property, the insurance policies at issue in

the federal lawsuit, any motion papers from that case, or any documents

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describing the court's decision to grant summary judgment to any of the parties.

The court therefore reached its decision on the only papers before it, i.e., the

Moores' federal complaint and the federal court's dismissal order.

The trial court did recognize that the entire controversy doctrine

conceivably could apply to a federal action. See, e.g., Rycoline Prod., Inc. v. C

& W Unlimited, 109 F.3d 883, 887 (3d Cir. 1997) ("A federal court hearing a

federal cause of action is bound by New Jersey's Entire Controversy Doctrine,

an aspect of the substantive law of New Jersey, by virtue of the Full Faith and

Credit Act."). However, based on the contents of the Moores' complaint, the

trial court concluded that the doctrine did not apply in this case.

The court found that the claim against Carrington's predecessor in interest

was "as a direct defendant for a direct claim for reimbursement of mortgage

payments" already paid on the damaged home. It held "[t]here’s no claim in that

Federal lawsuit that [the mortgagee] had any kind of an obligation to bring or

pursue an insurance claim against the insurance companies." There was no

evidence that it was the mortgage-holder's responsibility to pursue these

insurance claims.

The trial court further noted the Moores had not cited any case law or

other legal support for their argument that a bank was required to bring a

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foreclosure action in a federal proceeding or, in the alternative, that "the bank

had an obligation to attempt to obtain insurance benefits." The court expressed

doubts about a federal court's willingness to exercise jurisdiction over a

foreclosure case. It concluded that the allegations in the present state

foreclosure case "simply do not arise out of the transactional circumstances at

issue in the Federal case."

We recognize that, in some circumstances, a mortgage foreclosure action

may be brought in federal court under 28 U.S.C. § 1332 diversity jurisdiction.

Nat'l City Mortg. Co. v. Stephen, 647 F.3d 78, 80 n.2 (3d Cir. 2011), as amended

(Sept. 29, 2011) (observing that such federal cases had become "more common

due to congested state court dockets" following the 2008 financial crisis).

Federal courts also may hear claims related to foreclosures under 28 U.S.C. §

1331 federal question jurisdiction, where the mortgagor raises a claim under

federal law. See, e,g., St. Clair v. Wertzberger, 637 F. Supp. 2d 251, 253 (D.N.J.

2009) (finding federal question jurisdiction where mortgagor raised claims

under federal law in defense of pending state foreclosure proceeding).

Even where jurisdiction is appropriate, federal courts may decline to

adjudicate foreclosure actions for sound jurisprudential reasons. Id. at 255

(dismissing a foreclosure claim asserted in federal court on grounds of

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abstention where it would unreasonably interfere with a parallel, ongoing action

in state court).

We share with the trial court substantial doubts that the federal court

would have exercised jurisdiction over a mortgage foreclosure claim by the bank

if it had chosen to plead it as a counterclaim against the Moores. We are

unpersuaded that such a counterclaim would have been compulsory under

Federal Rule of Civil Procedure 13(a), since the Moores' lawsuit concerned their

insurers' denial of their claims for benefits and not their unpaid mortgage loan.

We are also doubtful of the jurisdictional basis that could support such a

counterclaim, since the Moores did not bring their lawsuit under diversity

jurisdiction and there is no federal question of law implicated by the Moores'

claim against Bank of America based on the mortgage contract.

But, even assuming federal jurisdiction over the mortgage foreclosure

claims hypothetically was present, we discern no legal or equitable basis to hold

that the foreclosure claims had a sufficient transactional nexus to the Moores'

insurance disputes to require them to be asserted in the federal case.

The series of dismissal orders from the District Court reveals that none of

the Moores' claims in the federal lawsuit were viable. There was no need to

latch onto those weak and rather short-lived federal claims a viable state-law

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foreclosure case that could be properly litigated in the Superior Court. This state

court, not the federal court, has day-to-day expertise in foreclosure matters. It

would make little practical sense to force the bank to bring its foreclosure clai ms

in that other forum.

As the trial court noted, the Moores' federal complaint itself does not

appear to suggest that there is a transactional relationship between a potential

foreclosure and the insurance claims. The Moores' specific complaint against

the mortgage holder did not allege it was required to seek payment from the

insurance companies. Instead, the federal complaint asserts that the destruction

of the home voided the mortgage contract, and that the Moores therefore were

owed mortgage payments already made after they had been "relieved of that

obligation." The remainder of the complaint is focused on the insurance

providers. In fact, in their present brief the Moores assert they brought suit to

compel the insurance companies to "to pay the mortgage and remaining

damages." The only relationship between the mortgage holder and the insurance

companies is the assertion that the mortgage holder was a named recipient of the

insurance policy, and that the mortgage company paid monthly insurance

premiums from the monthly payments the Moores made on the mortgage.

Although the mortgage holder could be joined to dispute the insurance claims,

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the Moores make no other arguments that the insurance companies were obliged

to pay the mortgage holder, or that the mortgage holder was required to compel

them to use the allegedly deficient insurance proceeds to pay off the mortgage.

At best, the mortgage holder might well be precluded from pursuing

claims under the insurance policies in a subsequent action. The absence of any

stated relationship in the federal complaint between the claim against the

mortgagors and the claims against the insurance companies suggests that, in fact,

there was no transactional relationship between these claims.

The Moores' arguments in this appeal crucially depend upon the contract

between themselves and the lender. There appear to be at least two distinct

arguments: (1) the mortgage loan contract was a novation, or was void, after

Superstorm Sandy; and (2) the lender had a duty to seek the insurance proceeds

under either common law principles or the contract itself, and the failure to do

so precludes its successor from bringing a subsequent foreclosure action. We

reject both of those assertions.

The first assertion is that when Superstorm Sandy destroyed the property,

it either constituted a novation in the mortgage contract or constituted changed

circumstances sufficient to void the contract. The Moores argue that, because

of the storm damage, they were no longer required to pay the mortgage, and that

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therefore the mortgage holder was obligated to seek mortgage payments from

the insurers. These contentions are without merit.

The Moores' argument that there was a "novation" is clearly incorrect. A

novation is "a type of substituted contract that has the effect of adding a party,

either as obligor or obligee, who was not a party to the original duty."

Restatement (Second) of Contracts § 280 (Am. Law. Inst. 1981). There is no

claim or evidence that a substitute contract between any of the parties was ever

made, nor an explanation for how Superstorm Sandy would be the triggering

event for a new mortgage contract.

Furthermore, the Moores' arguments are squarely repudiated by our

opinion in Sovereign Bank, FSB v. Kuelzow, 297 N.J. Super. 187 (App. Div.

1997). In that case, a mortgagor's home was destroyed in a storm. The

mortgagors sought to recover insurance payments to rebuild the property and

pay off the mortgage but, through no fault of their own, the insurance case was

delayed for years. Id. at 196-97. In the meantime, the mortgagee successfully

pursued a foreclosure action. This court delayed the final delivery of the

sheriff's deed, and the termination of the homeowners' equity of redemption, to

allow the defendant mortgagors time to conclude their lawsuit against the

insurance providers. Id. at 197-98. Notably, the court emphasized that

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regardless of the outcome of the insurance dispute, the mortgage holder "must,

of course, receive its full contract payments until that date, thus suffering no

harm." Id. at 197.

The destruction of the mortgagor's home in Kuelzow did not affect the

plaintiff bank's right to the mortgage debt or its right to foreclose. Principles of

equity only allowed the mortgagors a fair opportunity to obtain money that could

allow them to pay off the default. Ibid. The same principle applies here—the

destruction of the Moores' home does not preclude Carrington from enforcing

the obligations of the mortgage contract against them. Carrington was entitled

to the balance of the mortgage payments, and could pursue foreclosure if those

payments were not met.

The mortgage contract itself bears this out. It specifically states that, in

the event of loss or damaged property, the mortgage holder (Carrington or its

predecessors) can apply insurance proceeds either towards repairs or to the

balance of the mortgage, but that "[a]ny application of the proceeds to the

principal shall not extend or postpone the date of the monthly payments which

are referred to in paragraph 2, or change the amount of such payments."

Paragraph Two, in turn, covers monthly "taxes, insurance, and other charges."

In other words, the mortgagors are still obliged to keep up insurance and other

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payments in the event of loss. Additionally, neither clause nullifies or modifies

paragraph 1, which requires the mortgagor to "pay when due" the principal and

debt owed on the mortgage. The contract specifies that, even in the event of

loss or damage to the property, the obligation of the mortgagees to continue to

make payments they otherwise owe through the mortgage contract is unaffected.

The Moores further argue, by analogy, that a mortgage holder is akin to a

landlord and has the same duty to mitigate damages as a landlord does when

seeking rent from a defaulting tenant, citing Somer v. Kridel, 74 N.J. 446, 456-

57 (1977). This contention is unavailing.

A mortgage holder is not akin to a landlord. Unlike a landlord, who can

rent out a vacant apartment to a new tenant and thereby reduce the debt of a

defaulting, previous tenant, a mortgage holder has only a security interest in a

property with no control over the land itself until a foreclosure and deed transfer

is completed.

"Nothing is better settled in New Jersey than the rule that, in the absence

of a contrary agreement between the parties, the mortgagor has the exclusive

right to possession of the mortgaged property until default in performance of the

conditions of the mortgage." 29 N.J. Practice, Law of Mortgages § 14.1 (Myron

C. Weinstein) (2d ed.); see also McCorristin v. Salmon Signs, 244 N.J. Super.

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503, 508 (App. Div. 1990) ("[P]rior to default, a mortgagor has the exclusive

right of possession and all of the incidents related thereto. . . . The mortgagee is

not the owner of the property unless there is a foreclosure and sale to the

mortgagee."). A mortgagee can only vindicate its interests in the loan by

bringing a foreclosure action; that is what Carrington appropriately did here.

The Moores also argue there is a duty based in the mortgage contract,

because the contract obligates the mortgagor to obtain insurance, and allows the

mortgage holder to impound insurance payments to pay off the mortgage.

Related to this point, the Moores argue that, as a sophisticated business entity,

the mortgage holder has a responsibility to pursue recovery after other

sophisticated parties, here the insurance providers, rather than the homeowners.

Contrary to their claims, the mortgage contract demonstrates that there is

no transactional relationship because the insurance clauses in the contract do not

affect the Moores' obligation to pay the debt. In general, a " mortgagee has

absolutely no interest in the proceeds of the mortgagor's insurance in the absence

of an agreement to insure for his benefit." 29 N.J. Practice, Law of Mortgages

§ 14.5(Myron C. Weinstein) (2d ed.) (describing this is "the universal rule" and

citing cases nationwide); Midland Lumber & Supply, Inc. v. J.P. Builders, 265

N.J. Super. 246, 249 (Law. Div. 1993) (holding a contract of insurance is

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personal to the insured person, not property, and a lien holder, by virtue of its

lien, is not automatically entitled to insurance proceeds). Therefore, mortgage es

regularly protect their property interest by including a clause in the mortgage

contract requiring the mortgagor to carry insurance. Id. at 250.

As the Moores note, their mortgage contract had such a clause requiring

them to purchase insurance on the property. As already described, however, the

contract demonstrates that an insurance payout and the underlying mortgage are

not related. The contract specifies that insurance payouts do not affect a

mortgagor's monthly obligations to make insurance payments, and are not tied

to their obligation to make payments toward the underlying debt. As such, the

Moores' obligation to make mortgage payments was independent of the results

of any insurance claim. Contrary to their arguments, the mortgage contract

provides that the mortgage holder's right to the principal is not tied to insurance

on the property, and that the duty to continue to repay the mortgage loan rests

with the mortgagors.

Lastly, from a policy perspective, the Moores' arguments, if vindicated,

could pose significant problems for homeowners. A requirement that a

mortgage holder has a duty to involve itself in every insurance dispute between

a homeowner and insurance company, or otherwise risk losing the right to

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foreclose on the mortgage, would upset the well-established and firmly held

rights of mortgage holders to pursue foreclosure. It would entangle foreclosure

claims in other lawsuits. This practice could discourage the issuance of

mortgage loans in the first place. A further requirement that a mortgage holder

preemptively bring a foreclosure action whenever homeowners sought to

recover insurance proceeds on their property would greatly add to the burdens

of mortgagors in an already stressful situation.

In sum, caselaw and other legal precedent clearly establish the right of a

mortgage holder such as Carrington to receive mortgage payments, even after

loss or damage to property, and to foreclose in the event of default. The Moores

seek to invert this relationship by requiring a mortgage holder to risk losing this

right unless it actively takes part in lawsuits to recover insurance proceeds on

damaged property. The entire controversy doctrine should not be used to do so.

The trial court sensibly disallowed that from occurring.

Although the circumstances of appellants, who lost their home in the wake

of a devastating natural disaster, are surely sympathetic, their legal arguments

are simply without merit. We need not comment on any further points made or

suggested in their brief. R. 2:11-3(e)(1)(E).

Affirmed.

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