MTGLQ INVESTORS, L.P. VS. EILEEN BRYLINSKI (F-007226-17, MIDDLESEX 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                                NOT FOR PUBLICATION WITHOUT THE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-1666-20

MTGLQ INVESTORS, L.P.,

          Plaintiff-Respondent,

v.

EILEEN BRYLINSKI and
FRANK BRYLINSKI,

          Defendants-Appellants,

and

MR. BRYLINSKI, unknown
spouse of EILEEN BRYLINSKI,

     Defendant.
____________________________

                   Submitted October 5, 2021 – Decided October 14, 2021

                   Before Judges Fisher and Smith.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Middlesex County, Docket No.
                   F-007226-17.

                   Eileen Brylinski and Frank Brylinski, appellants pro se.
              Akerman, LLP, attorneys for respondent (Scott B.
              Brenner and Erica R. S. Goldman, on the brief).

PER CURIAM

       In 2016, plaintiff MTGLQ Investors, L.P., received from Bank of

America, N.A., the assignment of a thirty-year mortgage executed by defendants

Eileen and Frank Brylinski in 2007 against their Metuchen home. In 2017,

MTGLQ commenced this foreclosure action and moved for summary judgment

when defendants filed an answer. In moving for summary judgment, MTGLQ

asserted that a notice of intent to foreclose was sent by Bank of America to

defendants in accordance with the Fair Foreclosure Act, N.J.S.A. 2A:50-56. The

trial judge determined that MTGLQ submitted sufficient evidence to show the

notice of intent was sent and granted MTGLQ's summary judgment motion.

Final judgment of foreclosure was later entered and the property sold to MTGLQ

at a sheriff's sale.

       Defendants appealed, arguing there was a lack of competent proof that

Bank of America sent the notice of intent prior to MTGLQ's filing of the

foreclosure complaint. For reasons expressed in an unpublished opinion, we

found a genuine question of fact about the notice of intent. To be specific, we

held that the issue was not whether the notice of intent failed to conform to the

Fair Foreclosure Act but "whether [it] was sent," explaining that if someone "can

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lay an adequate foundation" on this question, "then the judgment need not be

disturbed." MTGLQ Investors, LP v. Brylinski, No. A-2409-18 (App. Div. July

14, 2020) (slip op. at 17).

      Following our decision, the chancery judge conducted an evidentiary

hearing. MTGLQ called a witness who testified about whether Bank of America

sent a notice of intent to defendants. Defendant Frank Brylinski cross-examined

the witness but neither he nor his wife testified and they did not call any

witnesses to rebut the testimony of MTGLQ's witness. At the end of the hearing,

the judge rendered oral findings in support of his conclusion that the witness

was credible and that the notice of intent was sent. Two orders were entered on

February 9, 2021. One order memorialized the factual determination about the

notice of intent and concluded there was no basis to disturb the final judgment

of foreclosure.1 The other order memorialized the judge's denial of defendants'

motion to compel MTGLQ to compensate them for the full value of the

foreclosed property.

      Defendants appeal, arguing:

            I. THE REVERSAL AND REMAND OF THE
            FORECLOSURE ACTION WAS NO LONGER AN


1
 This order appended a written opinion that further amplified the judge's oral
decision.
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                                      3
            OPTION WITHOUT             SETTING       ASIDE     THE
            SHERIFF'S SALE.

            II. PLAINTIFF FAILED TO LAY A SUFFICIENT
            FOUNDATION TO ESTABLISH THE [NOTICE OF
            INTENT'S]   ADMISSIBILITY      UNDER THE
            BUSINESS RECORD EXCEPTION TO THE
            HEARSAY RULE, N.J.R.E. 803(c)(6).

            III. THE TRIAL COURT ERRED, AND ABUSED ITS
            DISCRETION, DENYING DEFENDANTS' MOTION
            FOR COMPENSATION.

Because our standard of review requires that we defer to judge-made findings

when supported, as here, by credible evidence in the record, see Rova Farms

Resort, Inc. v. Inv. Ins. Co., 65 N.J. 474, 484 (1974), and because defendants

could not conceivably be entitled to any relief as argued in Point III absent an

outright reversal of the judgment of foreclosure and dismissal of the complaint,

we find insufficient merit in defendants' arguments to warrant further discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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