SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2189-16T4

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

LOUIS CICENIA and MRS. LATEF,

wife of Zafer Latef, 

Defendants,

and

ZAFER LATEF and MORTGAGE

ELECTRONIC REGISTRATION

SYSTEMS, INC., as nominee for

METLIFE HOME LOANS,

Defendants-Appellants.

Submitted May 9, 2018 — Decided July 17, 2018

Before Judges Koblitz, Manahan and Suter.

On appeal from Superior Court of New Jersey, 

Chancery Division, Hudson County, Docket No. 

F-021199-15.

Herold Law, PA, attorneys for appellants

(Raymond R. Siberine, of counsel and on the 

brief; Craig S. Provorny, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.
2 A-2189-16T4

Reed Smith LLP, attorneys for respondent 

(Henry F. Reichner, of counsel and on the 

brief). 

PER CURIAM

Zafer Latef and Mortgage Electronic Registration Systems, 

Inc. (MERS) appeal from a December 21, 2016 final residential 

foreclosure judgment and the preceding June 28, 2016 order of the 

Chancery Division striking defendants' answer and returning the 

matter to the Office of Foreclosure as an uncontested matter. R.

4:64-1(c)(3). We affirm.

By consent, this matter was tried by the Chancery Court based

on documentary evidence including depositions, with no live 

testimony. Latef owns and resides at the residential condominium 

property (Unit 2) subject to this foreclosure action. Unit 2 is 

identified on the Hoboken tax map by block and lot number. MERS, 

as nominee for MetLife Home Loans, is the mortgagee in the 

Latef/MERS Mortgage. Cicenia is the previous owner of the property

who conveyed Unit 2 to Latef in 2010.

In October 2007, Cicenia entered into a $250,000 Prime Equity 

Line of Credit Agreement with Wachovia (Wachovia Agreement). Wells 

Fargo is the successor in interest to Wachovia by name change and 
3 A-2189-16T4

merger.1 The section of the Wachovia Agreement entitled 

"Collateral" did not specifically describe Unit 2. 

To secure the line of credit, Cicenia executed and delivered 

a mortgage to Wachovia (Wachovia HELOC) that was recorded. The 

first page of the Wachovia HELOC describes the mortgaged property 

by the address, without including the unit number. The second 

page of the Wachovia HELOC contains a section entitled "TRANSFER 

OF RIGHTS IN THE PROPERTY." That section states in pertinent 

part:

This Security Instrument secures to [Wachovia] 

. . . (ii) the performance of [Cicenia's] 

covenants and agreements under this Security 

Instrument and [Cicenia's] covenants and 

agreements under the Debt Instrument. For 

these purposes, [Cicenia] does hereby 

mortgage, grant and convey to [Wachovia] the 

following described property located in the 

County of Hudson, State of New Jersey. 

The space provided for insertion of a property description was 

left blank. 

The last page of the Wachovia HELOC, not numbered and titled 

Schedule A, refers to the property by street address without unit 

number, and notes that it is more particularly described in a 

deed, noting the book and page numbers where the deed is recorded.

Cicenia and Wells Fargo's closing agent stated at their depositions

 

1 See Suser v. Wachovia Mortgage, FSB, 433 N.J. Super. 317, 321 

(App. Div. 2013). 
4 A-2189-16T4

that they had no recollection of Schedule A being attached to the 

Wachovia HELOC at the time of execution.

In March 2010, Cicenia and Latef executed a contract of sale 

(Latef contract) for $213,500 for Unit 2. Latef obtained a 

$160,000 purchase money mortgage from MetLife Home Loans.

In April 2010, First Jersey Title Services, agent for First 

American Title Insurance, conducted a title search for judgments 

and liens, and reported the search was clear. First American then

issued a title policy stating the property was clear of any 

encumbrances, liens, and judgments. After executing the Latef 

contract, and before closing, Cicenia provided Latef with a copy 

of Cicenia's owner policy of title insurance. The only mortgage 

identified as an exception in Cicenia's owner policy was Cicenia's 

1998 purchase money mortgage, which had since been discharged. It

did not disclose the Wachovia HELOC, nor did Cicenia or his 

counsel.

Prior to closing, Latef's counsel obtained a title commitment 

covering Latef's purchase of Unit 2 and Latef's purchase money 

mortgage. The title commitment indicated there were no open 

mortgages of record encumbering Unit 2. Also before closing, 

Cicenia received a monthly statement from Wells Fargo indicating 

the outstanding balance on the Wachovia HELOC was $249,048.17. He 

did not disclose this information to Latef.
5 A-2189-16T4

The closing on Unit 2 took place on June 25, 2010. Cicenia 

received $200,957.09. Wells Fargo discovered Cicenia sold Unit 2 

over two months after the closing. Cicenia continued to make 

payments on the Wachovia HELOC for approximately two more years.

Although it had accepted Cicenia's payments for almost two 

years, in March 2012 Wells Fargo sent Cicenia a notice of default 

based on the sale of Unit 2. Wells Fargo refused to accept 

payments thereafter and sent two notices of its intent to 

accelerate and foreclose, with a copy to Latef. As a result, 

Latef filed a complaint against Cicenia in the Law Division of 

Essex County, where Cicenia resided, alleging conversion, fraud, 

and breach of covenant of title, seeking money damages only. The 

complaint did not name Wells Fargo nor seek to quiet title for 

Unit 2. Cicenia filed a third-party complaint against Wells Fargo, 

which subsequently settled between the two parties.

The Law Division jury trial began in May 2014. At the 

conclusion of Latef's case-in-chief, Cicenia moved for a directed 

verdict and dismissal of Latef's claims, arguing Latef had not 

established that the Wachovia HELOC was an encumbrance on Unit 2 

and had not proved damages. The Law Division judge granted 

Cicenia's motion, finding that no competent evidence was presented 

that would allow the jury to calculate damages or determine that 

Cicenia acted intentionally. She noted that the matter was not 
6 A-2189-16T4

an action to quiet title and Latef had not joined Wells Fargo to 

the action. She did not rule on the issue of whether the Wachovia 

HELOC was a valid encumbrance on Unit 2 as against Latef or the 

mortgage was properly recorded. A June 11, 2014 order dismissed

Latef's complaint with prejudice.

Latef appealed and we affirmed. Latef v. Cicenia, No. A5747-13 (App. Div. March 14, 2016). We determined Latef lacked 

standing to seek the amount due Wells Fargo because Latef had not 

proved there was a substantial likelihood he would suffer harm.

He had not demonstrated at trial that Wells Fargo had a valid 

lien. We noted that "Wells Fargo was an indispensable party to 

litigation that determined the validity of its [mortgage] claim 

against [Cicenia]." Any judgment in the matter "would not be 

binding on Wells Fargo."

Recognizing the litigation did not involve a quiet title 

claim, we determined the evidence did not demonstrate that Wachovia 

HELOC encumbered Unit 2, stating:

The evidence at trial failed to show a lien 

existed on the unit purchased by defendant by 

virtue of a valid and properly recorded 

mortgage. The actual security instrument 

executing the [m]ortgage merely describes the 

encumbered property as the address of the 

building; it does not specify that it pertains 

to Unit 2. 

Because the mortgage did not specify that it 

encumbered Unit 2, plaintiff is not left 
7 A-2189-16T4

unprotected against action to deprive him of 

his interest in Unit 2. . . .

It is undisputed that plaintiff provided 

"valuable consideration" to acquire his 

interest in the property and that he did not 

have notice of the Wells Fargo mortgage. 

Assuming that plaintiff recorded his deed 

before Wells Fargo filed any mortgage that 

specifically identified the lien on Unit 2, 

he would qualify as a bona fide purchaser 

whose position would be protected against a 

claim by Wells Fargo against the property. 

The evidence therefore fails to show a 

substantial likelihood he will suffer harm.

We concluded:

The deficiency in the description of the

property to be encumbered permitted plaintiff 

to obtain insurable title and effectively 

defeats plaintiff's claim that there was an 

encumbrance upon Unit 2 constituting a breach 

of defendant's promises.

On June 15, 2015, Wells Fargo filed this residential 

foreclosure complaint naming Cicenia, Latef, and MERS as 

defendants. The complaint was filed approximately five years from 

the Unit 2 closing between Cicenia and Latef and over three years 

after Wells Fargo sent Cicenia its first notice of intention to 

accelerate and foreclose.

The Chancery Division found that although Wachovia HELOC 

itself did not contain a sufficient legal description, Schedule 

A, attached to the mortgage when recorded, did refer to the deed, 
8 A-2189-16T4

which clearly stated "the full address of the property, including 

the unit number."

In his written opinion, the Chancery judge described the 

issue as "whether the property description contained in the 

recorded [m]ortgage [Cicenia] granted [Wells Fargo] was sufficient 

to put [Latef], a subsequent purchaser, on notice that the 

[m]ortgage covered [Unit 2]." The judge found no legal reason 

precluding Wells Fargo "from executing and recording a mortgage 

that incorporates by reference a prior recorded deed," and the 

recording by Wells Fargo "adequately placed all subsequent 

purchasers of [Unit 2] on notice of [Wells Fargo's] mortgage." 

The judge found the description of the property in Schedule A

directed subsequent purchasers to the Cicenia deed, which 

precisely described the Unit 2 property.

Issues of law are reviewed de novo. The Palisades At Fort 

Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 442 

(2017). "A trial court's interpretation of the law and the legal 

consequences that flow from established facts are not entitled to 

any special deference." Ibid. (quoting Manalapan Realty, L.P v. 

Twp. Comm. of Twp. of Manalapan, 140 N.J. 366, 378 (1995)). 

I.

Defendants contend the law of the case doctrine is applicable 

because Wells Fargo was brought in by Cicenia's third-party 
9 A-2189-16T4

complaint, and attended the first day of trial. Defendants rely 

on Schmidt v. Smith, 294 N.J. Super. 569 (App. Div. 1996), which 

they argue is factually similar to this case because an insurance 

company chose not to participate in a trial that found its insured 

liable, and the insurance company was thereafter held to be 

obligated to indemnify its insured. 

Latef also argues that the law of the case requires that our 

appellate discussion of the law division appeal be applied to the 

Chancery decision. Both our written opinion and the Law Division 

oral opinion conclude that Wells Fargo was an indispensable party 

to litigation attempting to determine the validity of its lien 

and, absent joinder, Wells Fargo would not be bound by the rulings. 

"The 'law of the case' doctrine generally 'requires a decision 

of law made in a particular case to be respected by all other 

lower or equal courts during the pendency of that case.'" CFG 

Health Sys., LLC v. Cty. of Essex, 411 N.J. Super. 378, 384 (App. 

Div. 2010) (quoting State v. Reldan, 100 N.J. 187, 203 (1985)). 

The doctrine generally applies to "legal issues in the same case." 

Franklin Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 

512 (App. Div. 2003). 

The "law of the case" doctrine does not benefit defendants. 

The doctrine applies to legal issues in the same case. Franklin 

Med. Assocs., 362 N.J. Super. at 512. This Chancery case is not 
10 A-2189-16T4

the same as the related Law Division or subsequent Appellate 

Division case. Additionally, application of the doctrine to 

preclude consideration of a legal issue is discretionary and not 

a rule of law. Toto v. Princeton Twp., 404 N.J. Super. 604, 618

(App. Div. 2009). Lastly, defendants' reliance on Schmidt is

misguided, because the Schmidt decision was based upon the 

insurer/insured relationship of the parties, which does not exist 

here. 

II.

Defendants argue the Wachovia HELOC does not adequately 

describe the mortgaged premises, Unit 2, and should therefore be 

considered invalid. Defendants contend the Wachovia HELOC fails 

to comply with the New Jersey Statute of Frauds, N.J.S.A. 25:1-1 

to -16. 

Under the Statute of Frauds: 

A transaction intended to transfer an interest 

in real estate shall not be effective to 

transfer ownership of the interest unless: 

(1) a description of the real estate 

sufficient to identify it, the nature of the 

interest, the fact of the transfer and the 

identity of the transferor and the transferee 

are established in a writing signed by or on 

behalf of the transferor.

[N.J.S.A. 25:1-11(a)(1).]
11 A-2189-16T4

"Generally, if property is not expressly included in the 

instrument's description, it will not be covered by the mortgage." 

Panetta v. Equity One, Inc., 190 N.J. 307, 323 (2007). 

New Jersey allows for incorporation by reference in a recorded 

document that refers to a previous deed. See Garden of Memories, 

Inc. v. Forest Lawn Mem'l Park Ass'n, 109 N.J. Super. 523, 532-34 

(App. Div. 1970) (explaining that references in a deed's exception 

recitals placed a purchaser on constructive notice of other 

previous deeds and the existence of another's interest in the 

subject property). The "purpose of a description of land . . . 

is to identify the subject-matter of the grant," which "may be 

done either by describing it in words at length, or by referring 

the reader to some other deed or record containing such a 

description." Mitchell v. D'Olier, 68 N.J.L. 375, 383 (E. & A. 

1902). When a recorded document "refers to another deed, it has 

the effect of incorporating the latter deed in the description, 

so that what is therein described will pass." Kaplan v. Bernstein, 

2 N.J. Misc. 762, 764 (Ch. Ct. 1924). 

Defendants are correct that the numbered pages of the Wachovia 

HELOC do not contain a sufficient description of Unit 2, nor do 

they reference Schedule A. Based on Cicenia and the Wells Fargo 

closing agent's failure to recall Schedule A more than eight years 

after the closing, defendants speculate that the document was 
12 A-2189-16T4

attached to the Wachovia HELOC after Cicenia signed the mortgage. 

Schedule A of the Wachovia HELOC, however, was attached and 

recorded, and defendants have not provided evidence that Schedule 

A was not, in fact, attached to the Wachovia HELOC at the time of 

execution. A failure to recall is not affirmative evidence that 

it was not there. 

Wells Fargo's obligation to provide a description of Unit 2 

sufficient to identify it, N.J.S.A. 25:1-11(a)(1), was fulfilled

by Schedule A's reference to the Cicenia Deed. 

III.

Defendants argue that this matter is similar to a case 

recently resolved by the New York Appellate Division, Second 

Department, Maurice v. Maurice, 131 A.D.3d 454 (N.Y. App. Div. 

2015), where that court determined a deed having a deficient 

description of the mortgaged property was invalid. Id. at 455-

57. In Maurice, an action to quiet title, the plaintiff submitted 

a deed that did not include a property description above his 

mother's signature and contained a blank space in the area where 

the description of the property was usually set forth. Id. at 

455. 

Unlike in New Jersey, New York case law states that "a deed 

conveying real property must set forth 'a specific grantor, a 

specific grantee, a property designation of the property, a recital 
13 A-2189-16T4

of the consideration, and . . . technical operative words.'" Id.

at 456 (alteration in original) (quoting Cohen v. Cohen, 188 A.D. 

933, 933 (N.Y. App. Div. 1919)). "A deed which contains a blank 

space instead of a description when signed is not an instrument 

of conveyance." Ibid. (quoting Rekis v. Lake Minnewaska Mountain 

Houses, Inc., 170 A.D.2d 124, 127 (N.Y. App. Div. 1991)). Because

the deed did not contain a property description, "it was void for 

uncertainty." Ibid. Additionally, a "Schedule A" document, which 

contained a metes and bounds description of the property, "and was 

allegedly found in the files of the law firm which prepared the 

1999 deed, could not serve as a legal property description, as the 

1999 deed contained no language incorporating it by reference." 

Maurice, 131 A.D.3d at 456. The court thus affirmed the trial 

court's ruling that the deed was invalid. Id. at 456-57. 

Unlike in Maurice, where the Schedule A was found in the 

files of a law firm which had prepared the deed, 131 A.D.3d at 

456, the Schedule A document in this matter was recorded as part 

of the Wachovia HELOC. We are therefore unpersuaded by this 

argument.

IV.

Our recording statutes govern mortgage priorities. N.J.S.A. 

46:26A-1 to -12. "Lenders and other parties are generally charged 

with constructive notice of instruments that are properly 
14 A-2189-16T4

recorded." Sovereign Bank v. Gillis, 432 N.J. Super. 36, 43-44 

(App. Div. 2013) (citing Cox v. RKA Corp., 164 N.J. 487, 496 

(2000)). "Any recorded document affecting the title to real 

property is, from the time of recording, notice to all subsequent 

purchasers, mortgagees and judgment creditors of the execution of 

the document recorded and its contents." N.J.S.A. 46:26A-12(a). 

A party is presumed to be a bona fide purchaser unless proven 

otherwise. Reaves v. Egg Harbor Twp., 277 N.J. Super. 360, 366 

(Ch. Div. 1994). The burden is on Wells Fargo to show Latef had 

either actual, constructive, or inquiry notice of the Wachovia 

HELOC. It is "the duty of the purchaser to search the grantor and 

other pertinent recording indexes for each holder of record title 

for the period during which he [or she] held such title." Garden 

of Memories, 109 N.J. Super. at 533. 

The Wachovia HELOC with the attached Schedule A was recorded 

and indexed by the name of the mortgagor, Cicenia, by the Hudson 

County Register's Office. N.J.S.A. 46:26A-8(c). The name was 

spelled correctly, thereby allowing for a successful title search. 

Manchester Fund, Ltd. v. First Am. Title Ins. Co., 332 N.J. Super. 

336, 344 (Law Div. 1999). Schedule A referenced by incorporation 

the Cicenia deed, which sufficiently described Unit 2. Therefore, 

defendants had record or constructive notice of Wells Fargo's 

interest in Unit 2 via the Wachovia HELOC. 
15 A-2189-16T4

Affirmed.