SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4932-16T2

WELLS FARGO BANK, NA,

Plaintiff-Respondent,

v.

CHRISTOPHER J. MOUNT,

Defendant-Appellant.

_____________________________

Argued December 17, 2018 – Decided January 28, 2019

Before Judges Messano and Rose.

On appeal from Superior Court of New Jersey, 

Chancery Division, Monmouth County, Docket No. F008621-16.

Joseph Albanese argued the cause for appellant.

David G. Murphy argued the cause for respondent 

(Reed Smith, LLP, attorneys; Henry F. Reichner, of 

counsel; David G. Murphy, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Christopher J. Mount defaulted on his home mortgage loan 

with plaintiff, Wells Fargo Bank, NA. Wells Fargo served defendant with a 

Notice of Intention to Foreclose, and defendant filed a Chapter 13 bankruptcy 

petition. During the pendency of the bankruptcy action, defendant negotiated a

"Streamlined Modification" agreement with Wells Fargo. The Streamlined 

Modification was a proposed trial period plan (TPP), as explained in Wells 

Fargo's December 2014 letter, which included three monthly payments

commencing February 1, 2015. The notice clearly stated Wells Fargo could 

extend the TPP prior to modifying the mortgage if, for example, defendant 

needed to clear "other liens" on the property, although it did not specify any 

particular lien. As an example, the letter stated defendant might need to provide 

"a subordination agreement from the other lenders, so that [Wells Fargo] can 

maintain [its] lien position . . . ."

Defendant began making payments under the TPP, and Wells Fargo 

served defendant with a letter and title report dated February 20, 2015. The 

letter stated Wells Fargo's mortgage was "not in first lien position," and required 

plaintiff to furnish a "completed subordination agreement" before the mortgage 

modification could be finalized. The title report showed there was a mortgage 

with Fulton Bank of New Jersey (Fulton), as well as a subordination agreement 
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recorded on the same date Wells Fargo's mortgage was recorded. The title report 

clearly provided that the Fulton mortgage was subordinate to Wells Fargo's 

mortgage. Additionally, the letter somewhat confusingly advised defendant he 

also was required to furnish a "Notice of Release of Mortgage or 

Discharge . . . ." On April 17, 2015, in an effort to have the Fulton mortgage 

discharged, defendant filed a modification of his bankruptcy petition, which 

provided for the release of the mortgage upon defendant's completion of 

payments to the bankruptcy trustee. 

By letter two weeks later, Wells Fargo advised defendant that he needed 

to furnish "documented proof" the title issues were resolved "within ten business

days," or defendant would no longer be eligible for a permanent loan 

modification. In June, the trustee advised Wells Fargo that defendant had made 

all payments, "subject to final review . . . ." Defense counsel advised Wells 

Fargo that the Fulton mortgage soon would be removed of record. 

On August 20, 2015, however, Wells Fargo notified defendant that he was 

no longer eligible for assistance because of unspecified "title issues" with the 

property. On August 27, 2015, the county clerk received an executed release of 

the Fulton mortgage.
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Defendant continued to make timely TPP payments through February 

2016. In March, Wells Fargo refused to accept any further payments and 

commenced a foreclosure action. Defendant filed an answer that included 

affirmative defenses and a counterclaim alleging, among other things, breach of 

contract, breach of the implied covenant of good faith and fair dealing, 

violations of federal regulations and consumer fraud. An amended case 

management order provided discovery would end on March 31, 2017, and all 

dispositive motions were to be filed thirty days prior to trial. Despite the 

ongoing litigation, Wells Fargo offered defendant another TPP plan in August 

2016, which he refused. 

Wells Fargo moved for summary judgment; defendant filed a crossmotion for summary judgment and a motion to compel discovery. After 

considering oral argument, the chancery judge granted Wells Fargo's motion and 

denied defendant's motions. Wells Fargo subsequently moved for final 

judgment, which the Foreclosure Unit entered on June 8, 2017. This appeal 

followed.

Defendant argues the judge should have granted his cross-motion for 

summary judgment because Wells Fargo breached its contract — the TPP —

with defendant, had "unclean hands," and was equitably estopped from
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prosecuting the foreclosure. Alternatively, defendant claims the judge should 

have denied summary judgment to Wells Fargo because there were genuine 

factual disputes as to whether it breached the TPP. Lastly, defendant argues the 

judge should have granted his discovery motion. Having considered these 

arguments in light of the record and applicable legal principles, we reverse and 

remand for further proceedings consistent with this opinion.

We review the grant of summary judgment de novo, applying the same 

standard used by the trial judge, which 

mandates that summary judgment be granted "if the 

pleadings, depositions, answers to interrogatories and 

admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material 

fact challenged and that the moving party is entitled to 

a judgment or order as a matter of law."

[Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. 

Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R.

4:46-2(c)).]

We decide "whether the competent evidential materials presented, when viewed 

in the light most favorable to the non-moving party, are sufficient to permit a 

rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) 

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). We 

owe no deference to the trial court's legal analysis or interpretation of a statute. 
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The Palisades At Fort Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 

427, 442 (2017) (citing Manalapan Realty, LP v. Twp. Comm. of Manalapan, 

140 N.J. 366, 378 (1995)).

We have likened a TPP to "'a unilateral offer,' pursuant to which the bank 

promise[s] to give plaintiff[] a loan modification, if and only if plaintiff[] 

complie[s] fully and timely with [his] obligations under the TPP . . . ." Miller 

v. Bank of Am. Home Loan Servicing, LP, 439 N.J. Super. 540, 549 (App. Div. 

2015) (quoting Arias v. Elite Mortg. Grp., Inc., 439 N.J. Super. 273, 279 (2015)). 

"[W]hen the issuance of a loan modification agreement is explicitly made 

contingent upon the evaluation and satisfaction of all prescribed conditions 

precedent within a TPP, . . . the declination of a lender to present a loan 

modification agreement may be actionable." Ibid. (citing Arias, 439 N.J. Super. 

at 276). "[T]he specific terms of the TPP govern the parties' agreement." Id. at 

550. 

When it moved for summary judgment, Wells Fargo's statement of 

undisputed material facts relied solely on the contents of the February, April and 

August 2015 letters to defendant, contending those documents demonstrated

defendant "did not timely remedy the title issues." The chancery judge 

seemingly accepted this as an undisputed fact, noting simply that the Fulton 
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mortgage was not released until after Wells Fargo terminated the TPP. As a 

result, she concluded there was no breach of the TPP, and, since it was 

undisputed that defendant was in default of the mortgage, summary judgment 

was appropriate.1 

However, as we have demonstrated, the documents that set the terms of 

the TPP are confusing, at best. The February 2015 letter says defendant was 

required to obtain both a subordination agreement for the Fulton mortgage, and 

a "Notice of Release," because Wells Fargo's mortgage was not a first lien on 

the property. In fact, Wells Fargo's own title report demonstrated its mortgage 

was a first lien. Although it is undisputed that defendant made other attempts 

to have the mortgage actually discharged, Wells Fargo's April letter and the final 

August 2015 letter simply stated, without specificity, that defendant failed to 

clear title to the property. 

Defendant's motion to compel discovery was an attempt to flesh out the 

contacts that took place between Wells Fargo and himself, and to depose the 

bank's representatives in charge of the modification process. This was relevant 

evidence, given federal regulations that obligated Wells Fargo to give defendant

 

1

 It is apparently undisputed that if the TPP payments were applied to 

defendant's account under the original terms of his mortgage with Wells Fargo, 

he would be in default as of January 2014. 
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"a reasonable period of time to fulfill any remaining requirements of the servicer

for acceptance of the [TPP] . . . ." 12 C.F.R. 1024.41(e)(2)(ii). It was also 

potentially relevant to demonstrate whether Wells Fargo, which was servicing 

the mortgage for Freddie Mac, complied with that association's guidelines, 

which, at the time, required the servicer to "work with the [b]orrower . . . to

obtain any court and/or trustee approvals required[,]" and suggested that 

mortgagees "should extend" a TPP period to assist mortgagors in fulfilling their 

obligations, but for no more than one year. Freddie Mac Servicing Guidelines, 

§ 9205.10(b) (2017) (removed 2018).

In short, we do not think the facts were so one-sided as to compel summary 

judgment in favor of Wells Fargo as a matter of law. Brill, 142 N.J. at 533. We 

reverse the order granting Wells Fargo summary judgment. 2

 

2 The order granting Wells Fargo summary judgment dismissed defendant's 

counterclaims with prejudice. Defendant's brief asserted no argument regarding 

other causes of action in his counterclaim, e.g., violations of the Consumer 

Fraud Act, N.J.S.A. 56:8-1 to -210. Nor did the brief address whether alleged 

violations of regulations and guidelines in the counterclaim are cognizable 

independent causes of action. "An issue not briefed on appeal is deemed 

waived." Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011). 

We affirm the order dismissing all of defendant's counterclaims except breach 

of contract, breach of the implied covenant of good faith and fair dealing, and 

the equitable defenses of "unclean hands" and equitable estoppel. 

 
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Defendant contends we should also reverse the order that denied his 

motion for partial summary judgment because he established as a matter of law 

that Wells Fargo breached the TPP, and because it initiated the foreclosure suit 

with "unclean hands." We think it is obvious from our prior discussion that 

material questions of fact exist, and, therefore, defendant's motion for partial 

summary judgment was properly denied. We affirm the judge's separate order 

that denied defendant's motion for partial summary judgment.

In light of our decision, we remand the matter to the trial court, which 

shall reconsider defendant's motion for additional discovery and rule on those 

requests in the context of the current posture of the case before the court. In that 

regard, we consider what is the appropriate remedy should defendant prevail.

In GMAC Mortg., LLC v. Willoughby, 230 N.J. 172, 177-78 (2017), the 

mortgagor entered into a mediated settlement with the mortgagee to save her 

home from foreclosure.3 Although she complied, the mortgage servicer 

attempted to modify the settlement agreement. Id. at 178. When the mortgagor 

refused to execute the new proposed agreement, the mortgagee initiated 

foreclosure proceedings that ultimately led to the sale of the property at a 

sheriff's sale. Id. at 180.

 

3

 Willoughby was decided after the proceedings in this case.
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The Court concluded that the mediated settlement agreement was a 

binding contract that, based upon the mortgagor's performance, compelled the 

permanent modification of her mortgage in accordance with the terms of the 

agreement. Id. at 186, 188-89. Recognizing that the mortgagor might "not be 

entitled to specific performance" if the property had been sold to a "good faith 

purchaser" in the interim, the Court remanded the case so "the chancery court 

[may] fashion a suitable and equitable remedy[,]" including damages for the 

mortgagee's "breach of contract." Id. at 189-90.

Here, we do not know what has transpired since entry of the final 

judgment of foreclosure, nor can we predict the outcome of the remand and 

whether defendant will prevail on his counterclaim. Even if defendant does 

prevail, the equities of the moment might dictate that the final judgment of 

foreclosure not be disturbed. Defendant's recovery may be limited to proven 

financial damages or some other appropriate remedy fashioned by the chancery 

judge at that time. Id. at 189. Therefore, we do not vacate the final judgment 

of foreclosure. 

Reversed in part and remanded. We do not retain jurisdiction.