SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3522- 21
WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a CHRISTIANA TRUST, as owner trustee of the RESIDENTIAL CREDIT OPPORTUNITIES TRUST V, Plaintiff-Respondent,

v. MITCHELL MINCHELLO and DEANNA MINCHELLO, Defendants-Appellants , and J HOFERT COMPANY, FIA CARD SERVICES NA, SCHUMANN HANLON LLC, DISCOVER BANK, VANZ LLC-DECEMBER 10 SERIES01, MRI-WEST MORRIS ASSOCIATES, and STATE OF NEW JERSEY, Defendants.

____________________________ _ NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3522

- 21 Argued November 9, 2023

– Decided December 8, 2023 Before Judges Accurso and Walcott-Henderson. On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F- 007982

- 15. Javier L. Merino argued the cause for appellants (T he Dann Law Firm, PC, attorneys; Javier L. Merino, on the briefs). Mark A. Roney argued the cause for respondent (Hill Wallack, LLP, attorneys; Francesca A. Arcure, on th e brief).
PER CURIAM In this contested residential mortgage foreclosure, defendants Mitchell and Deanna Minchello appeal from the entry of summa ry judgment striking their answer and den ying their cross-motion for "leave to file a third-part y complaint or seek monetary damages based on insuran ce proceeds or trial loan modification payments allegedly improperly retained by [plaintiff's servicer] FCI Lender Services, Inc.," the order denying their motion for reconsideration , and the subsequent final judgment. Defendants contend pla intiff breached its trial payment plan with them and violated the covenant of good faith and fair dealing by "refusing to disburse defendants' insurance proceed s and forcing defendants' home to remain in disrepair"; that the trial court applied an3 A- 3522

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improper standard in deciding their motion for reco nsideration and twice improperly denied their requests for oral argument; and that a "remand is necessary for the trial court to clarify inconsiste ncies in its summary judgment and reconsideration decisions." Our review of the record convinces us that none of those arguments merits reversal of the judg ment. Although this case has a lengthy and convoluted procedural history, and the parties disagree on several points, the essenti al facts are undisputed. Defendants borrowed $522,000 from Bank of America i n January 2007, secured by a thirty-year purchase money mortgage on their home in Mt.
Ar lington. Defendants stopped making their loan payments in 20 10, and in
2012 they stopped paying the taxes and insurance on the property. In 2014, Bank of America assigned the note and mort gage to Christiana Trust, a Division of Wilmington Savings Fund Societ y, FSB, as Trustee of ARLP Trust 3. Christiana Trust filed this foreclosure action in March 2015. Although defendants filed an answer, they subsequently entered into a consent order in December 2015 , deeming their answer non -contesting , waiving formal notice under Section 6 of the Fair Foreclosure Act and returning the matter to the Office of Foreclosure to proceed as an uncontes ted manner in exchange for4 A- 3522

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plaintiff's agreement to delay its application for final judgment for four months, that is until April 2016. Two weeks after entering that consent order, Christ iana Trust assigned the note and mortgage to Wilmington Savings Fund So ciety, FSB, as Trustee for Stanwich Mortgage Loan Trust A. Stanwich's ser vicer was Carrington Mortgage Services, LLC. Stanwich substituted in as the foreclosing plaintiff
in April 2017.
Th ereafter , defendants sought a loan modification from Carringt on. In November 2017, defendants provided Carrington a 2016 profit and loss statement, which Carrington interpreted as demonstr ating defendants had monthly net income of $7,188.56. In its brief on appeal, defendants refer to the statement bearing both their signatures as an u ndated profit and loss statement they "purportedly submitted to Carrington ," which does "not state whether the $7,188.85 income was a monthly or yearl y income." On November 29, 2017, Carrington provided notice to defendants that the servicing of their mortgage loan was being tran sferred to FCI Lender Services, Inc. effective December 14, 2017. Two da ys later, on December 1, Carrington sent defendants a trial modification off er on behalf of Stanwich requir ing three monthly payments of $3,216

. In the first paragraph in bold5 A- 3522

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type , the offer states: "To accept this offer we must receive your initial [trial period plan] Payment which is due on or before 01/0 1/2018." Five days later, on December 6, 2017, defendant s filed a bankruptcy petition under Chapter 13. The following day, Dece mber 7, defendant Deanna Minchello drove her car into defendants' home, resulting in structural damage. On December 13, 2017, defendant s filed a statement in their bankruptcy action certifying to a combined monthly income of $3,871. Two days later, Carrington sent defendants a notice cancelling the trial plan offered on December 1 because Carrington was no longer servici ng defendants' loan. 1 Defendants nevertheless sent the new servicer, FCI , a check in the full amount of the monthly trial payment dated January 1, 20 18, which was posted on January 8. On January 22, 2018, Stanwich assigned the note and mortgage to plaintiff, Wilmington Savings Fund Society, FSB, d/ b/a Christiana Trust, as owner trustee of the Residential Credit Opportuniti es Trust V

. On February 7, FCI sent defendants a letter advising them their "r equest for a loan

1 Defendants admitted in response to plaintiff's st atement of material facts that Carrington sent the cancellation notice, and they d id not deny receipt. They denied only that Carrington had authority to rescin d the offered trial period payment plan.6 A- 3522

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modification [was] denied due to failure to accept our modification offer." Defendants sent FCI a second check in the full amou nt of the monthly trial payment dated the same date as FCI's denial letter , February 7, 2018, which was not received by FCI until February 20. Defenda nts thereafter sent a third check in the same amount dated March 12, 2018 , which FCI received on March 20. 2 At about th at time, Merrimack Mutual Fire Insurance Company issued its check for $26,160.89 under the forced-pl aced policy for the property damage defendant Deanna Minchello caused the prior December. Plaintiff claimed its servicer engaged in further n egotiations with defendants throughout the early part of 2018 in the hope of structuring a loan modification around the cancelled trial payment pla n offered by Carrington but was never able to secure sufficient proof of income from defendants. Plaintiff contended the profit and loss statement defendants provided in April 2018 claimed an average net monthly income of $6,592.02 and another, five months later, claimed an average net monthly income of $8, 000. Plaintiff claim ed none of the statements ever jibed with one another or the figures provided to the bankruptcy court certifying plaintiffs' monthly income as $3,871 , and

2 All three payments were posted to a suspense accoun t. FCI refused further payments after March 2018.7 A- 3522

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defendants never provided proof to support any of t hem. Plaintiff contended defendants also failed to submit the report of the claims adjuster or any quote from a contractor and proof of the satisfactory com pletion of the repairs necessary to release the insurance proceeds. Defendants claim ed they were entitled to a permanent loan modificatio n because they had a binding trial payment plan with FCI, made their trial plan payments on time, and forwarded additional financia l information to FCI as request ed

. They claim ed that although they were advised in February 2018 that their request for a loan modification had been denied, plaintiff's servicer (not FCI) subsequently thanked them in an email in March for their "timely payment of the initial three payments of your Trial Payment Program." Defendants further claim ed FCI failed to provide them a permanent modification after acknowledging they'd made "timel y payment" on their trial plan, writing to them in April that they were "not currently eligible for a loan modification due to failure to provide all loan doc umentation requested." Defendants argued the trial plan did not provide pl aintiff and its servicer the unilateral right to demand review of their financia ls because the trial payment plan "did not permit the lender to demand such a re view." Finally, defendants claim ed they provided all the information plaintiff and it s servicer required to8 A- 3522

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obtain the insurance proceeds and were wrongly deni ed them w ithout explanation. Plaintiff substituted in for Stanwich in March 2018 . Following the bankruptcy court's order vacating the automatic sta y to permit plaintiff to pursue its mortgage foreclosure , plaintiff filed an amended complaint in April
2018. Defendants, with new counsel, answered a year later in April 2019. Plaintiff moved for summary judgment in June. Defe ndants opposed the motion and cross moved to sever their "ancillary af firmative claims" against

non -party FCI, or in the alternative, to permit an ame nded answer and thirdparty complaint against FCI. The judge granted plaintiff's motion for summary ju dgment without oral argument , notwithstanding defendants had requested argument, in a written opinion

. The judge found no dispute over the validity of the note and mortgage, defendants' default in 2010 and plaintiff 's standing to foreclose the mortgage. See Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div. 1952) ( holding the defendant's concession of "the execution, reco rding, and

non -payment of the mortgage" established the plaintiff 's right to foreclosure ). The judge rejected defendants' claim that their per formance of the trial period plan was an effective equitabl e defense to the foreclosure. She found9 A- 3522

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the trial loan modification offered by Carrington w as not enforceable because Carrington revoked the offer before any performance by defendants. See Am. Handkerchief Corp. v. Frannat Realty Co. , 17 N.J. 12, 17 (1954) ( notin g a "mere offer" not supported by consideration "is not a contract and 'has, of course, no binding force either at law nor in equit y,' on the offeror," who "may revoke it so long as he does so before the offeree accepts it") (quoting 5 Williston on Contracts § 1441 (rev. ed.)). The judge found no legal basis for defendants' asse rtion that Carrington's purported revocation of its offer on December 15, 2 017, was ineffective because it had been relieved as Stanwich's servicer the day before. And altho ugh expressing the view that defendants may have identi fied "inequitable and potentially improper conduct on the part of FCI " in continuing "to accept and apply [defendants'] trial loan mod[ification] p ayments," the judge found the argument "fails to account for why defendants c ontinued to make payments after they had received notice their trial loan mod [ification] offer had been revoked ." "Given the revocation of the trial loan mod[ificati on] offer prior to defendants' performance, defendants' inconsistently stated income, and defendants' failure to provided adequate proof of i ncome," the judge rejected10 A- 3522

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defendants' claim the trial payment plan presented a viable defense to foreclosure. And although finding defendants' alle gations with respect to retention of the three trial payments and the insur ance proceeds "troubling," the judge denied defendants' cross-motion for leave to file a third-party complaint or a separate complaint against FCI in th e Law Division as to those payments, concluding "the appropriate method for de fendants to seek credit for those payments is through an objection to the amoun t claimed due by plaintiff" when it moved for final judgment. The judge grante d defendants' motion to sever its ancillary statutory claims against FCI un der the Real Estate Settlement Procedures Act to permit defendants to p ursue those claims in the Law Division. Defendants moved for reconsideration, contending th e March 2018 email to defendants from plaintiff's servicer thanking de fendants on their timely payments and representing an agent would contact th em with regard to a permanent loan modification established the trial p lan had never been revoked , defendants made their payments timely, and the part ies contemplated execution of a permanent loan modification. Defend ants also asked the court to reconsider its decision limit ing defendants' remedy for the alleged wrongfully retained insurance proceeds to a credit against the amount due ,11 A- 3522

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contending to do so stripped them of their right to hold plaintiff and FCI accountable under the Consumer Fraud Act and violat ed the contractual terms of the mortgage. The judge denied the motion in a written opinion, a gain denying defendants' request for oral argument. Accepting defendants' erroneous statement that the motion was governed by Rule 4:49 -2 , the rule governing reconsideration of a final judgment instead of Rule 4:42

- 2, the rule governing reconsideration of interlocutory orders , the judge found defendants had been in possession of the March email from plaintiff's serv icer since the servicer sent it to them in 2018, and its existence did not change t he fact that the modification plan was withdrawn by Carrington before it was acce pted by defendants , meaning no modification plan ever came into existen ce. As for FCI's alleged wrongful retention of the insu rance proceeds, the judge noted defendants relied in reconsideration on the same email they'd sent to plaintiff's servicer that they relied on in oppo sing plaintiff's motion for summary judgment. The court found that email, which defendants' claim provided the information plaintiff claimed was miss ing from their application for the insurance proceeds, listed only the file na mes of the documents supposedly attached to the email. Defendants hadn't included the actual12 A- 3522

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documents in the summary judgment record, either in itially or on reconsideration, thus rendering them unable to esta blish plaintiff's servicer had wrongly retained the insurance proceeds under the t erms of the mortgage. The court thus refused to rec onsider its ruling that plaintiff established its entitlement to summary judgment striking defendants ' answer and that defendants were only entitled to a credit at final judgment against the amount claimed due for the three trial payments and the in surance proceeds they claim FCI wrongly retained. Although t he summary judgment order states "defendant[s] are DENIED leave to file a third-part y complaint or seek monetary damages based on insurance proceeds or tri al loan modification payments allegedly improperly retained by FCI," the court stated it was without "authority to limit defendants' right to file affir mative claims against a

non -party in the Law Division and never claimed to hav e such authority in the September 11, 2019" summary judgment order. The court explained it restricted defendants' claim against plaintiff for the amount of the trial payments and the insurance proceeds to a credit against the amount due at the time of final judgment "but s evered defendants' claims against non-party FCI and allowed defendants to fil e a complaint in the Law Division ." The court noted defendants did not need to "seek le ave from this13 A- 3522

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court to file a claim against a non-party in the La w Division for matters unrelated to the foreclosure." The court subsequently granted plaintiff final judg ment, over defendants' objection, which was entered on the recommendation of the Office of Foreclosure in June 2022. Defendants' home was struck off to pla intiff at sheriff's sale the following November after defenda nts' motion to stay the sale was denied by the trial court, this court and the S upreme Court. On appeal, defendants do not dispute they received a credit of $35,808.89 for the three trial plan payments amount ing to $9, 648 and the insurance proceeds of $26,160.89, against the total amount due of $1,037,328.01, resulting in a final judgment amount of $1,001,519.12. They also do not dispute the property was sold at sherif f's sale. Although plaintiff claims that moots this appeal, defendants contend o ur Supreme Court in GMAC Mortgage, LLC v. Willoughby, 230 N.J. 172, 189 -90 (2017) held a mortgagor is entitled to a remedy for a lender's br each of a loan modification even in the event the property has been sold at she riff's sale, and thus the appeal is not moot. Defendants also contend the ap peal is not moot because a ruling by this court overturning the orders appeale d from "would have a direct14 A- 3522

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effect" on the litigation in which the parties and FCI are engaged in federal

court. We are satisfied the case is not moot because leavi ng aside that the property was struck off to plaintiff and not sold t o a third-party, defendants are entitled to a ruling on their claims that the trial court erred in finding there was no enforceable loan modification agreement and that plaintiff did not act in bad faith in its handling of the insurance proceeds , either of which they claim should have preclud ed plaintiff's resort to the equitable remedy of fore closure. See i bid. Whatever practical effect our ruling may have on th e parties' federa l court action , however, is none of our concern, and we do not take it into account in deciding this appeal. As we've already noted, although the procedural his tory is long and complicated with the parties' appendices exceed ing 800 pages, the legal issues are straightforward, and we have no hesitation in h olding plaintiff established its entitlement to both summary judgment, see Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993) ("The only mat erial issues in a foreclosure proceeding are the validity of the mort gage, the amount of the indebtedness, and the right of the mortgagee to res ort to the mortgaged premises.") and final judgment on the undisputed fa cts in this record. See R.15 A- 3522

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4:46 -2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (providing summary judgment is appropriate where th ere is no genuine issue of material fact and the moving party is entitled t o judgment as a matter of law). Defendants do not dispute that Carrington's tender of the loan modification agreement in December 2017 on behalf o f Stanwich was only a unilateral offer. See Arias v. Elite Mortg. Group, Inc., 439 N.J. Sup er. 273,
2 79 (App. Div. 2015) (characterizing a trial period pa yment plan , in which a mortgagee promises a loan modification if the mortgagor complies with the obligations established by the plan, as a unilatera l offer). "In a unilateral contract, one party's promise becomes enforceable o nly on the performance of the other party's obligation." Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 109 (2007). Defendants thus acknowledge their receipt of Carrington 's letter withdr aw ing its unilateral offer before defendants accept ed it would ordinarily render the modification agreement unenforceable. S ee Am. Handkerchief Corp., 17 N.J. at 17 (setting forth "the usual rule " that an "offeror may revoke [his offer] so long as he does so before the offere e accepts it"); Restatement (Second) of Contracts, § 42 (1991) ("An offeree's p ower of acceptance is16 A- 3522

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terminated when the offeree receives from the offer or a manifestation of an intention not to enter into the proposed contract." ). Defendants contend, however, that Carrington lacked the authority to revoke it s offer for the same reason Carrington gave defenda nts for revoking the offer

— that Carrington was no longer servicing the loan o n behalf of Stanwich, which itself was in the process of sellin g defendants' loan to plaintiff, and thus had no authority to bind either Stanwich or plaintiff to a loan modification scheduled to start the first of J anuary. Indeed, the first line of the offer stated unequivocally that defendants w ere "eligible for a permanent Loan Modification with Carrington . . . c urrent servicer and authorized agent" for Stanwich. Defendants provide no authority for their contention that Carrington was not free to revoke i ts own offer, before acceptance, on the transfer of its servicing responsibilities to a new entity in connection with the sale of the loan to plaintiff. We are certainly not aware of
any. Even had we any doubt about Carrington's ability to revoke its offer here, which we do not, defendants were not entitled to a permanent loan modification, as a matter of law, because they fail ed to perform in accordance with the terms of the offer. The offer states unequivocally that "To accept this17 A- 3522

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offer we must receive your initial [trial period pl an] payment which is due on or before 01/01/18." It's undisputed the new servi cer, FCI, the payee on defendants' check dated January 1, 2018, and the en tity to which defendants directed their payment, did not receive it on that date. The check was not posted until January 8, 2018. Although defendants contend the agreement only required the trial payments "to be made by the end of the month," beca use it provides "[e]ach trial payment must be applied to your account befor e the end of the month in which it is due or you will risk losing your eligib ility for a permanent Loan Modification," we agree with the trial court that language d id not alter the trial plan's plainly stated requirement that the initial payment was due on January 1, 2018, with the subsequent payments due February 1, and March 1, 2018

. The construction of contract language is generally a question of law unless its "meaning is both unclear and dependent o n conflicting testimony." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Su per. 78, 92 (App. Div. 2001). As neither party submitted any extrinsic evidence o f contractual intent on summary judgment, the record before the court wa s limited to the language of the agreement. See Globe Motor Co. v. Igdalev, 225 N.J. 469, 483 ( 2016).
Our review of the language is de novo. Kieffer v. Bes t Buy, 205 N.J. 213, 22218 A- 3522

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(2011). We owe "no special deference to the trial court's i nterpretation and look at the contract with fresh eyes." Id. at 223. This agreement is no model of draftsmanship. As our Sup reme Court has observed, "[l]ooseness of language ofttimes sug gests confusion of ideas in the user's mind that of necessity tends to confound the process of interpretation." George M. Brewster & Son, Inc. v. Catalytic Constr. Co., 17 N.J. 20, 32 (1954) (quoting Corbin on Contracts § 534 ). 3 "In the uncertainty of usage," we seek "the meanings each party intended t o convey by his words and acts, and for the meanings these words and acts con veyed to the other party ." Ibid. "To fulfill our interpretative mission, we determin e 'the reasonably certain meaning of the language used, taken as an e ntirety, considering the situation of the parties, the attendant circumstanc es, the operative usages and practices, and the objects the parties were strivin g to achieve.'" Ace Am. Ins. Co. v. Am. Med. Plumbing, Inc., 458 N.J. Super. 535 , 539 (App. Div. 2019) (quoting George M. Brewster, 17 N.J. at 32 ). Although " [p]overty of language

3 The Court further noted, however, that "as Professo r Corbin says, '[a] cl ear and definite mind is a rarity; an artist in the use of words is as great a rarity.'" George M. Brewster, 17 N.J. at 32 (quoting Corbin on Contracts § 534 ).19 A- 3522

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is sometimes a factor . . . whatever the difficulty , the chosen words and phrases are to be realistically assessed, in relati on to the context and the obvious general purpose of the compact, for the meaning that is reasonably clear, such as is within the reasonable understandi ng of the symbols of expression." George M. Brewster, 17 N.J. at 32

. Applying those principles here, we cannot find any actual ambiguit y as to when trial payments were due under the agreement . As we have noted before, the obvious purpose of a trial period plan preceding a permanent loan modification is to permit the borrowers "to demonst rate that, despite their inability to make their regular mortgage payments, they were at least financially reliable enough to make timely payments in the reduced amount stated in the [trial period plan] Agreement." Ar ias, 439 N.J. Super. at 279

. Although defendants paid the reduced monthly amount due under the plan, not one of their three payments was made on the due dat e. All were late. As defendants contend, Carrington reserved its righ t to terminate the trial period plan if payments were "not received an d applied to your account before the end of the month in which the payment is scheduled to be made."
T he agreement, however, also expressly provides that t he plan "is not a permanent modification," that defendants were requi red to "make all of [their]20 A- 3522

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[trial period plan] payments on time and continue t o meet all program requirements before [Carrington] can offer you a fi nal Loan Modification," and that Carrington would "not be obligated or boun d to make any modification of the Loan Documents if you fail to m eet any one of the requirements under this Plan." Thus, realistically assessing the words "in relation to the context and the obvious general pur pose" of the trial plan, George M. Brewster, 17 N.J. at 32, it is more than "reasonably clear" that although late payments, so long as applied to defen dants' account by the end of the month in which the payments were due, would not permit termination of the trial plan, they would allow Carrington to decl ine a permanent loan modification in accordance with the express terms o f the agreement. This case bears no resemblance to Gonzalez v. Wilsh ire Credit Corp. , 207 N.J. 557 (2011) or Willoug hby , cases in which the Court excoriated the practice by mortgagees and servicers of entering into post-judgment forbearance agreements with borrowers that effectiv ely turn ed them into "cash cow[s]" without ever providing them new mortgages. Gonzalez, 207 N.J. a t 57 0 ; W illoughby , 230 N.J. at 188. Defendants were not induced to ma ke trial plan payments on the promise of a permanent loan mo dification here.21 A- 3522

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Carrington revoked the trial plan offer before defe ndants made a single payment. And unlike the trial court, we do not find FCI's retent ion of defendants' three trial payments troubling for t wo reasons. First, as already noted, FCI did not solicit those payments; defendants made them vo luntarily with the knowledge that Carrington had revoked its offer of a trial plan and suggested they contact FCI about their options. Second, defe ndants were obligated to make their monthly mortgage payment by the terms of the mortgage and the mortgagee was entitled to accept their payments

. S ee Arias, 439 N.J. Super. at 281 n.6. Further, the trial period plan specified that in th e event the plan was cancelled or terminated, "any funds in a suspense a ccount shall be credited to your loan pursuant to the terms of your loan docume nts and shall not be refunded to you." 4 After FCI wrote to defendants in April of its "fina l denial,"

4 Although we need not reach plaintiff's a dditional reason for refusing defendants a permanent loan modification, that is t heir failure to provide sufficient proof of income to support the modification, we agree with the trial court that it provides another reasonable basis for plaintiff's refusal to modify defendants' loan. Although defe ndants are correct that there is nothing in the trial period plan agreement providing plaintiff the unilateral right to review their "financials," it was not unreasonable for pla intiff to request updated fi nancial information following defendants' bankruptc y filing days after Carrington offered th em a trial period plan. See Restatement (Second ) of Contracts § 251; Spring Creek Holding Co. v. Shinnihon U.S.A. Co. Ltd. , 39922 A- 3522

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it returned payments defendants made in April, May and June. There is nothing in the record to suggest that plaintiff or its servicer FCI w as dangling the prospect of a loan modification in order to squ eeze additional payments from defendants. 5 Defendants' claim that the trial court erred in gra nting summary judgment to plaintiff on their claim that plaintiff breached the covenant of good faith and fair dealing in retaining the insura nce proceeds requires only brief comment. Defendants argue the trial court erred in failing t o apply

N.J. Super. 158, 179 (App. Div. 2008) (discussing h ow adequate assurances may be demanded when "reasonable grounds support th e obligee's belief that the obligor will breach the contract.") (quoting Da nzig v. AEC Corp., 224 F.3d 133, 137 (Fed. Cir. 2000) ). It is undisputed that in their bankruptcy filing, p laintiffs certified on penalty of perjury to a combined monthly income of $3,871 , only $655 more than the modified payment (and $637 less than their regular payment of $4 ,508.96 including taxes and interest), and to month ly expenses of $5,066, leaving a monthly shortfall of $1,195. Plaintiff objected to confirmation of defendants' bankruptcy plan, arguing it was infeasi ble based as it was on t he unsuccessful loan modification. The bankruptcy cou rt entered an order o n February 20, 2018, granting plaintiff's motion to d eny confirmation and dismiss ed d efendants’ petition.

5 Defendants' counsel in the trial court twice wrote to plaintiff's foreclosure counsel in late 2018 asserting his belief that defendants "negotiated a trial to permanent modification with Carrington, which FCI " failed to properly book" when it took over as servicer in late 2017, in what "appear[ed] to be a loan transfer situation."23 A- 3522

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Wilmington Sav ings Fund Society, FSB for Pretium Mortgage Acquisition Trust v. Daw, 469 N.J. Super. 437, 441 (App. Div. 2 021) in which we held that "[o]nce the lender is provided with adequate inform ation to determine how the insurance funds should be used

— such as the estimated costs of repairs and market values

— the lender is obligated" to advise the borrower pro mptly "as to whether the requested use of insurance monies for r epairs is economically infeasible or will impair its security in the prope rty." Leaving aside th at the Daws were apparently current on their mortga ge and maintained the required insurance coverages on their home when it suffered catastrophic damage in Superstorm Sandy, t he event that precipitated their mortgage default, id. at 442

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— unlike defendants, who had been in default for seven-and-a-half-years, had been in for eclosure for two years and were without homeowner's insurance when defendant D eanna Minchello drove her car into the mortgaged premises

— defendants don't address the trial court's finding that they failed to establish they' d provided plaintiff 's servicer with any of the information the servicer required "t o determine how the insurance funds should be used," the trigger for ap plication of a Daw analysis. In their brief to this court, defendants simply ign ore the trial court's finding24 A- 3522

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that the record contains no proof they provided pla intiff's servicer with any of the documents it requested. Defendants only repeat the ir claim that they "submitted all the documents" requested by the servicer

. In support, th ey reference the same letter the trial court found contained only a list of PDF files it purportedly sent the servicer , but not copies of the documents, thus leaving the servicer's certification that defendants failed to produce the requested documents unrebutted on summary judgment. As defendants failed to establish it provided plaintiff "with adequate information to de termine how the insurance funds should be used," including the estimated cost of repairs, they could not establish they'd triggered plaintiff's obligation t o advise them "within a reasonable period of time as to whether the request ed use of insurance monies for repairs [was] economically infeasible or [would ] impair its security in the property," Daw , 469 N.J. Super. at 441, even assuming Daw would app ly in the case of force-placed insurance where the mortga ge had been in default for nearly eight years. 6 Thus, we find no error in the finding that defend ants failed

6 Defendants' mortga ge provides that in the event the borrower fails to maintain property insurance:25 A- 3522

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to establish plaintiff breached its covenant of goo d faith and fair dealing in its handling of the insurance proceeds thereby providin g an equitable defense to foreclosure. 7

Lender may obtain insurance coverage, at L ender’s option and Borrower’s expense. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower’s equity in the property or the contents of the property against any risk, haza rd or liability and might provide greater or lesser cover age than was previously in effect. Borrower acknowledges that the cost of the insurance coverag e so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disburse ment and shall be payable, with such interest, upon noti ce from Lender to Borrower requesting payment." [Emphasis added.]

7 In Daw, which was decided two -and-a-half years after plaintiff's receipt of the insurance proceeds, we held that "it seems fair and appropriate for the insurance funds to be placed in an interest-bearing account until their disposition is finally determined. " 469 N.J. Super. at 458

. Plaintiff's servicer did not hold the insurance proceeds in an interest- bearing account as the mortgage provides that "[u]less an agreement is mad e in writing or Applicable Law requires interest to be paid on such insurance proceeds, Lender shall not be required to pay Borrower any interest or earning s on such proceeds. " Defendants assert that assuming arguendo the repair s were economically infeasible, "plaintiff had an obligation to apply t he insurance proceeds26 A- 3522

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We agree with defendants the trial court should hav e held oral argument

on plaintiff's summary judgment motion and defendants ' cross-motion to sever defendants' claims against FCI or permit them to fi le a third-party complaint against it in the foreclosure. See R. 1:6 -2(d)

. Doing so would have likely avoided the confusion over whether the court grante d or denied defendants the ability to sue FCI for damages based on its alleged improper retention of the trial period payments and the forced-placed insuran ce proceeds.
W e agree with defendants the trial court initially den ied th at request limiting defendants to a credit for those sums agai nst the amount due. And although the court denied defendants' reconsiderati on motion, it clarified its

promptly to the mortgage balance, which had the pot ential to substantially reduce the interest owed." They devote, however, only a paragraph of their brief to that issue. They make no attempt to expla in by reference to the mortgage , the nature of force-placed insurance or any published authority when or how the proceeds were to be applied to the mortgage balance or to quantify the "potential" effect on the interest owe d or to explain how its effect on the upset price at the sheriff's sale would have ma de any difference here in the absence of a demonstrated ability to redeem at the reduced amount or of a deficiency action. "Parties are required to make an adequate legal arg ument " in support of their claims. 700 Highway 33 LLC v. Pollio, 421 N.J. Super. 231, 238 (App. Div. 2011). An issue addressed only by the "mere conclusory statements by the brief writer" does not require ou r consideration in a written opinion. Nextel of New York, Inc. v. Borough of Englewood Cl iffs Bd. of Adjustment, 361 N.J. Super. 22, 45 (App. Div. 2003)

. We thus do not consider defendants' alternate argument that plaintiff breac hed its alleged obligation to apply the forced-placed policy proceeds promptly to the mortgage balance.27 A- 3522

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order "restricted defendants' relief against plaint iff" in the foreclosure "to a credit at final judgment for any payments made to p laintiff and retained by FCI," that it was without "authority to limit defendants' right to file affirmative claims against a non-party in the Law Division," an d "severed defendants' claims against non-party FCI and allowed defendants to file a complaint in the Law Divis ion. " See R. 4:64 -5 (prohibiting the joinder of non-germane claims
in a foreclosure action without leave of court ). We express no opinion on the viability of defendant s' damage claims against any party or entity , or the effect of this foreclosure action on those claims

. As the court's initial order on defendants' cross-motion was subsequently clarified and has not prevented defend ants from asserting a claim for damages against FCI in federal district court, it is not grounds for reversal or a remand.
We affirm the trial court's orders that plaintiff est ablished its right to foreclose the mortgage, that defendants did not suc ceed in establishing plaintiff should be barred from asserting that equi table remedy , and that final judgment of foreclosure was properly entered agains t defendants. Defendants' remaining arguments, to the extent we have not addr essed them, lack sufficient merit to warrant discussion in a written opinion. See R. 2:11 -3(e)(1)(E).28 A- 3522

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Affirmed.