AMERICAN FIRST FEDERAL, INC. VS. MARIO RAMON FUENTES (L-1325-20, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-0355-20

AMERICAN FIRST FEDERAL,
INC.,

Plaintiff-Appellant/
Cross-Respondent,

v.

MARIO RAMON FUENTES, as
executor of the estate of
EDELBERTO TRUJILLO,
and NECTALIER GONZALEZ,

Defendants-Respondents/
Cross-Appellants.

Submitted May 5, 2021 – Decided June 15, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Docket No. L-1325-20.

McAndrew Vuotto, LLC, attorneys for appellant/cross-
respondent (Jonathan P. Vuotto, on the briefs).

Jay J. Freireich, attorney for respondent/cross-appellant
Mario Ramon Fuentes.
 Craig H. Rothenberg, attorney for respondent/cross-
appellant Nectalier Gonzalez.

PER CURIAM

Plaintiff American First Federal, Inc. (the Bank) entered into a December

29, 2008 "stipulation and agreed order" in a Florida mortgage foreclosure action

with defendants Nectalier Gonzalez and the late Edelberto Trujillo, among

others. Trujillo and Gonzalez (we refer to Trujillo's estate and Gonzalez

collectively as defendants) personally guaranteed the underlying $2,600,000

commercial loan. The stipulation, as the Law Division judge described it, was

essentially a forbearance agreement—calling for entry of a final judgment of

foreclosure against the commercial real estate only if defendants "fail[ed] to

perform any act or make payment in the full amount . . . ." The Bank proceeded

to obtain a final judgment of foreclosure following "default under the

stipulation," but did not sell the property. Trujillo died in 2018. The Bank

commenced a separate action in New Jersey against Gonzalez and the estate of

Trujillo, seeking to collect the amount due pursuant to the promissory note, or

$6,921,923.83. Initially, the court dismissed the Bank's complaint with

prejudice on defendants' motion. On reconsideration, the judge on September

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11, 2020, modified the dismissal to one without prejudice. We affirm

principally for the reasons stated by the judge.

The judge reasoned that New Jersey lacked jurisdiction to enforce the

Bank's guarantees against defendants because the Florida court had specifically

retained the authority to, without limitation, enter orders including writs of

possession and deficiency judgments. The Florida proceedings on defendants'

personal guarantees were the first-filed pleadings, and no compelling reason

existed for the same relief to be sought by way of complaint in New Jersey.

Addressing the Bank's concern that equity required the New Jersey courts to

take jurisdiction to avoid any compromise of the Bank's claims against the

estate, the judge noted it was the Bank's failure to act for years after foreclosure

that resulted in that potential and dismissed the matter with prejudice.

On the Bank's motion for reconsideration, the judge analyzed the nature

of a dismissal with and without prejudice through the prism of Exxon Research

& Engineering Co. v. Industrial Risk Insurers, 341 N.J. Super. 489 (App. Div.

2001). Since he had dismissed the complaint for comity reasons, not on the

merits, he therefore made the dismissal without prejudice.

Now on appeal, the Bank raises the following points:

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 POINT I

THE [TRIAL] COURT HAS JURISDICTION OVER
THE GUARANTEE CLAIMS.

POINT II

ALTERNATIVELY, A STAY IS WARRANTED.

Defendants assert the following errors on their cross-appeal:

POINT I

LACK OF JURISDICTION.

POINT II

THE DOCTRINE OF MERGER PRECLUDES THIS
SUIT ON THE NOTE AND GUARANT[EE].

POINT III

ONCE JUDGMENT OF FORECLOSURE IS
ENTERED, NO DEFICIENCY SUIT MAY BE
BROUGHT (ANYWHERE) UNTIL AFTER THE
UNDERLYING PROPERTY IS SOLD.

POINT IV

WHERE THE VALUE OF THE UNDERLYING
PROPERTY IS AT LEAST EQUAL TO THE
DEFICIENCY PER THE JUDGMENT, NO
DEFICIENCY SUIT MAY BE BROUGHT
(ANYWHERE).

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 POINT V

THE DELAY IN SELLING THE PROPERTY MAKES
IT NOW TOO LATE.

POINT VI

DISMISSAL SHOULD HAVE BEEN WITH
PREJUDICE.

POINT VII

STAY NOT WARRANTED.

"The determination of whether to grant a comity stay or dismissal is

generally within the discretion of the trial court." Sensient Colors, Inc. v.

Allstate Ins. Co., 193 N.J. 373, 390 (2008). A trial court abuses its discretion

when a decision is "made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis." Flagg v. Essex

Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v.

I.N.S., 779 F.2d 1260, 1265 (7th Cir.1985)).

As explained in Sensient Colors, the first-filed rule to which New Jersey

adheres is applicable "in the absence of special equities." Sensient Colors, 193

N.J. at 386 (quoting Yancoskie v. Del. River Port Auth., 78 N.J. 321, 324

(1978)). Our courts ordinarily stay or dismiss a civil action in deference to

substantially similar proceedings pending in other jurisdictions. Ibid. Although

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not an inflexible doctrine, in order to avoid its application, special equities must

be found that "are reasons of a compelling nature that favor the retention of

jurisdiction by the court in the later-filed action." Id. at 387.

The Bank has not established any such equities. The action was filed in

Florida, also the location of the real estate and the court in which the stipulation

was entered. The Florida court explicitly retained jurisdiction. The guarantors

were named in that action as they are in this. The Bank continues to have the

opportunity to obtain relief from the Florida court. Certainly, Trujillo's death

and the formation of his estate may result in a different proceeding than would

have been the case if the action was brought during Trujillo's lifetime —but as

the judge pointed out, eleven years have passed and the Bank has not yet chosen

to obtain a deficiency judgment. Had that been the case, the Bank could have

merely registered the judgment in New Jersey. N.J.S.A. 2A:49A-27. Thus the

Bank has not established any special equities and suffers no hardship or

inconvenience in pursuing the Florida litigation, nor is there unfairness to the

Bank by compelling it to do so. See Sensient Colors, 193 N.J. at 389. No

injustice would be perpetrated on any party that would warrant an exception to

the first-filed rule here. See ibid.

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 We note the Bank contends that Light v. Granatell, 171 N.J. Super. 557

(App. Div. 1979), authorizes enforcement of the judgment here. In that readily

distinguishable case, however, the plaintiff's lien had been extinguished by a

senior lien foreclosure. This record is devoid of any similar unique

consideration.

Nor did the court abuse its discretion in dismissing the case instead of

staying it. Defendants did not demonstrate any special equities which warranted

a stay. See Innes v. Carrascosa, 391 N.J. Super. 453, 492 (App. Div. 2007).

That the Bank did not pursue the matter for eleven years does not make dismissal

without prejudice inequitable.

Defendants' argument that no reconsideration should have been granted

does not warrant much discussion in a written opinion. R. 2:11-3(e)(1)(E). The

court explicitly stated it dismissed the matter not on the merits, but purely on

comity grounds, as the Florida proceedings were first filed. Hence it was proper

to make the dismissal, which was procedural and not substantive in nature,

without prejudice. See Exxon, 341 N.J. Super. at 519. Any other argument not

explicitly addressed by this opinion does not warrant discussion in a written

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

Affirmed.

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