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NOT FOR PUBLICATION WITHOUT THE 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 parties in the case and its use in other cases is limited. 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 (The 

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 the 

brief). 

PER CURIAM 

In this contested residential mortgage foreclosure, defendants Mitchell 

and Deanna Minchello appeal from the entry of summary judgment striking 

their answer and denying their cross-motion for "leave to file a third-party 

complaint or seek monetary damages based on insurance 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 plaintiff breached its 

trial payment plan with them and violated the covenant of good faith and fair 

dealing by "refusing to disburse defendants' insurance proceeds and forcing 

defendants' home to remain in disrepair"; that the trial court applied an 
3 A-3522-21

improper standard in deciding their motion for reconsideration and twice 

improperly denied their requests for oral argument; and that a "remand is 

necessary for the trial court to clarify inconsistencies in its summary judgment 

and reconsideration decisions." Our review of the record convinces us that 

none of those arguments merits reversal of the judgment. 

Although this case has a lengthy and convoluted procedural history, and 

the parties disagree on several points, the essential facts are undisputed. 

Defendants borrowed $522,000 from Bank of America in January 2007, 

secured by a thirty-year purchase money mortgage on their home in Mt. 

Arlington. Defendants stopped making their loan payments in 2010, and in 

2012 they stopped paying the taxes and insurance on the property. 

In 2014, Bank of America assigned the note and mortgage to Christiana 

Trust, a Division of Wilmington Savings Fund Society, 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 uncontested manner in exchange for 
4 A-3522-21

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, Christiana Trust assigned 

the note and mortgage to Wilmington Savings Fund Society, FSB, as Trustee 

for Stanwich Mortgage Loan Trust A. Stanwich's servicer was Carrington 

Mortgage Services, LLC. Stanwich substituted in as the foreclosing plaintiff 

in April 2017. 

Thereafter, defendants sought a loan modification from Carrington. In 

November 2017, defendants provided Carrington a 2016 profit and loss 

statement, which Carrington interpreted as demonstrating 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 undated profit and loss 

statement they "purportedly submitted to Carrington," which does "not state 

whether the $7,188.85 income was a monthly or yearly income." 

On November 29, 2017, Carrington provided notice to defendants that 

the servicing of their mortgage loan was being transferred to FCI Lender 

Services, Inc. effective December 14, 2017. Two days later, on December 1, 

Carrington sent defendants a trial modification offer on behalf of Stanwich 

requiring three monthly payments of $3,216. In the first paragraph in bold 
5 A-3522-21

type, the offer states: "To accept this offer we must receive your initial [trial 

period plan] Payment which is due on or before 01/01/2018." 

Five days later, on December 6, 2017, defendants filed a bankruptcy 

petition under Chapter 13. The following day, December 7, defendant Deanna 

Minchello drove her car into defendants' home, resulting in structural damage. 

On December 13, 2017, defendants 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 servicing defendants' loan.1 

Defendants nevertheless sent the new servicer, FCI, a check in the full amount 

of the monthly trial payment dated January 1, 2018, 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 Opportunities Trust V. On February 7, 

FCI sent defendants a letter advising them their "request for a loan 

1

 Defendants admitted in response to plaintiff's statement of material facts that 

Carrington sent the cancellation notice, and they did not deny receipt. They 

denied only that Carrington had authority to rescind the offered trial period 

payment plan. 
6 A-3522-21

modification [was] denied due to failure to accept our modification offer." 

Defendants sent FCI a second check in the full amount 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. Defendants thereafter sent a third 

check in the same amount dated March 12, 2018, which FCI received on 

March 20.2 At about that time, Merrimack Mutual Fire Insurance Company 

issued its check for $26,160.89 under the forced-placed policy for the property 

damage defendant Deanna Minchello caused the prior December. 

Plaintiff claimed its servicer engaged in further negotiations with 

defendants throughout the early part of 2018 in the hope of structuring a loan 

modification around the cancelled trial payment plan 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 claimed

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 account. FCI refused further 

payments after March 2018.
7 A-3522-21

defendants never provided proof to support any of them. Plaintiff contended 

defendants also failed to submit the report of the claims adjuster or any quote 

from a contractor and proof of the satisfactory completion of the repairs 

necessary to release the insurance proceeds. 

Defendants claimed they were entitled to a permanent loan modification 

because they had a binding trial payment plan with FCI, made their trial plan 

payments on time, and forwarded additional financial information to FCI as 

requested. They claimed 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 claimed FCI failed to provide them a permanent 

modification after acknowledging they'd made "timely 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 documentation requested." 

Defendants argued the trial plan did not provide plaintiff and its servicer the 

unilateral right to demand review of their financials because the trial payment 

plan "did not permit the lender to demand such a review." Finally, defendants 

claimed they provided all the information plaintiff and its servicer required to 
8 A-3522-21

obtain the insurance proceeds and were wrongly denied them without 

explanation. 

Plaintiff substituted in for Stanwich in March 2018. Following the 

bankruptcy court's order vacating the automatic stay 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. Defendants opposed the 

motion and cross moved to sever their "ancillary affirmative claims" against 

non-party FCI, or in the alternative, to permit an amended answer and thirdparty complaint against FCI. 

The judge granted plaintiff's motion for summary judgment 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, recording, and 

non-payment of the mortgage" established the plaintiff's right to foreclosure).

The judge rejected defendants' claim that their performance of the trial 

period plan was an effective equitable defense to the foreclosure. She found 
9 A-3522-21

the trial loan modification offered by Carrington was 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) (noting a 

"mere offer" not supported by consideration "is not a contract and 'has, of 

course, no binding force either at law nor in equity,' 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' assertion that Carrington's 

purported revocation of its offer on December 15, 2017, was ineffective 

because it had been relieved as Stanwich's servicer the day before. And 

although expressing the view that defendants may have identified "inequitable 

and potentially improper conduct on the part of FCI" in continuing "to accept 

and apply [defendants'] trial loan mod[ification] payments," the judge found 

the argument "fails to account for why defendants continued 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[ification] offer prior to 

defendants' performance, defendants' inconsistently stated income, and 

defendants' failure to provided adequate proof of income," the judge rejected 
10 A-3522-21

defendants' claim the trial payment plan presented a viable defense to 

foreclosure. And although finding defendants' allegations with respect to 

retention of the three trial payments and the insurance proceeds "troubling," 

the judge denied defendants' cross-motion for leave to file a third-party 

complaint or a separate complaint against FCI in the Law Division as to those 

payments, concluding "the appropriate method for defendants to seek credit for 

those payments is through an objection to the amount claimed due by plaintiff" 

when it moved for final judgment. The judge granted defendants' motion to 

sever its ancillary statutory claims against FCI under the Real Estate 

Settlement Procedures Act to permit defendants to pursue those claims in the 

Law Division. 

Defendants moved for reconsideration, contending the March 2018 email 

to defendants from plaintiff's servicer thanking defendants on their timely 

payments and representing an agent would contact them with regard to a 

permanent loan modification established the trial plan had never been revoked, 

defendants made their payments timely, and the parties contemplated 

execution of a permanent loan modification. Defendants also asked the court 

to reconsider its decision limiting defendants' remedy for the alleged 

wrongfully retained insurance proceeds to a credit against the amount due, 
11 A-3522-21

contending to do so stripped them of their right to hold plaintiff and FCI 

accountable under the Consumer Fraud Act and violated the contractual terms 

of the mortgage. 

The judge denied the motion in a written opinion, again 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 servicer since the servicer sent it 

to them in 2018, and its existence did not change the fact that the modification 

plan was withdrawn by Carrington before it was accepted by defendants, 

meaning no modification plan ever came into existence. 

As for FCI's alleged wrongful retention of the insurance proceeds, the 

judge noted defendants relied in reconsideration on the same email they'd sent 

to plaintiff's servicer that they relied on in opposing plaintiff's motion for 

summary judgment. The court found that email, which defendants' claim

provided the information plaintiff claimed was missing from their application 

for the insurance proceeds, listed only the file names of the documents 

supposedly attached to the email. Defendants hadn't included the actual 
12 A-3522-21

documents in the summary judgment record, either initially or on 

reconsideration, thus rendering them unable to establish plaintiff's servicer had 

wrongly retained the insurance proceeds under the terms of the mortgage. 

The court thus refused to reconsider 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 insurance proceeds they claim 

FCI wrongly retained. Although the summary judgment order states 

"defendant[s] are DENIED leave to file a third-party complaint or seek 

monetary damages based on insurance proceeds or trial loan modification 

payments allegedly improperly retained by FCI," the court stated it was 

without "authority to limit defendants' right to file affirmative claims against a 

non-party in the Law Division and never claimed to have 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 severed defendants' claims 

against non-party FCI and allowed defendants to file a complaint in the Law 

Division." The court noted defendants did not need to "seek leave from this 
13 A-3522-21

court to file a claim against a non-party in the Law Division for matters 

unrelated to the foreclosure." 

The court subsequently granted plaintiff final judgment, over defendants' 

objection, which was entered on the recommendation of the Office of 

Foreclosure in June 2022. Defendants' home was struck off to plaintiff at 

sheriff's sale the following November after defendants' motion to stay the sale 

was denied by the trial court, this court and the Supreme Court. 

On appeal, defendants do not dispute they received a credit of 

$35,808.89 for the three trial plan payments amounting 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 sheriff's sale. Although plaintiff 

claims that moots this appeal, defendants contend our 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 breach of a loan modification 

even in the event the property has been sold at sheriff's sale, and thus the 

appeal is not moot. Defendants also contend the appeal is not moot because a 

ruling by this court overturning the orders appealed from "would have a direct 
14 A-3522-21

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

court. 

We are satisfied the case is not moot because leaving aside that the 

property was struck off to plaintiff and not sold to 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 precluded plaintiff's resort to the equitable remedy of foreclosure. 

See ibid. Whatever practical effect our ruling may have on the parties' federal 

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 history is long and 

complicated with the parties' appendices exceeding 800 pages, the legal issues 

are straightforward, and we have no hesitation in holding 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 material issues in a 

foreclosure proceeding are the validity of the mortgage, the amount of the 

indebtedness, and the right of the mortgagee to resort to the mortgaged 

premises.") and final judgment on the undisputed facts in this record. See R.
15 A-3522-21

4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) 

(providing summary judgment is appropriate where there is no genuine issue 

of material fact and the moving party is entitled to judgment as a matter of 

law). 

Defendants do not dispute that Carrington's tender of the loan 

modification agreement in December 2017 on behalf of Stanwich was only a 

unilateral offer. See Arias v. Elite Mortg. Group, Inc., 439 N.J. Super. 273, 

279 (App. Div. 2015) (characterizing a trial period payment plan, in which a 

mortgagee promises a loan modification if the mortgagor complies with the 

obligations established by the plan, as a unilateral offer). "In a unilateral 

contract, one party's promise becomes enforceable only 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 

withdrawing its unilateral offer before defendants accepted it would ordinarily 

render the modification agreement unenforceable. See 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 offeree accepts it"); Restatement 

(Second) of Contracts, § 42 (1991) ("An offeree's power of acceptance is 
16 A-3522-21

terminated when the offeree receives from the offeror a manifestation of an 

intention not to enter into the proposed contract."). 

Defendants contend, however, that Carrington lacked the authority to 

revoke its offer for the same reason Carrington gave defendants for revoking 

the offer — that Carrington was no longer servicing the loan on behalf of 

Stanwich, which itself was in the process of selling 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 January. Indeed, the first line 

of the offer stated unequivocally that defendants were "eligible for a 

permanent Loan Modification with Carrington . . . current servicer and 

authorized agent" for Stanwich. Defendants provide no authority for their 

contention that Carrington was not free to revoke its 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 failed to perform in accordance 

with the terms of the offer. The offer states unequivocally that "To accept this
17 A-3522-21

offer we must receive your initial [trial period plan] payment which is due on 

or before 01/01/18." It's undisputed the new servicer, FCI, the payee on 

defendants' check dated January 1, 2018, and the entity 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," because it provides "[e]ach 

trial payment must be applied to your account before the end of the month in 

which it is due or you will risk losing your eligibility for a permanent Loan 

Modification," we agree with the trial court that language did 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 on conflicting testimony." 

Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 

2001). As neither party submitted any extrinsic evidence of contractual intent 

on summary judgment, the record before the court was 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. Best Buy, 205 N.J. 213, 222 
18 A-3522-21

(2011). We owe "no special deference to the trial court's interpretation and 

look at the contract with fresh eyes." Id. at 223.

This agreement is no model of draftsmanship. As our Supreme Court 

has observed, "[l]ooseness of language ofttimes suggests 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 to convey by his words and 

acts, and for the meanings these words and acts conveyed to the other party."

Ibid. 

"To fulfill our interpretative mission, we determine 'the reasonably 

certain meaning of the language used, taken as an entirety, considering the 

situation of the parties, the attendant circumstances, the operative usages and 

practices, and the objects the parties were striving 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 Professor Corbin says, '[a] clear 

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-3522-21

is sometimes a factor . . . whatever the difficulty, the chosen words and 

phrases are to be realistically assessed, in relation to the context and the 

obvious general purpose of the compact, for the meaning that is reasonably 

clear, such as is within the reasonable understanding of the symbols of 

expression." George M. Brewster, 17 N.J. at 32. 

Applying those principles here, we cannot find any actual ambiguity 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 demonstrate 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." Arias, 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 date. All were late. 

As defendants contend, Carrington reserved its right to terminate the 

trial period plan if payments were "not received and applied to your account 

before the end of the month in which the payment is scheduled to be made." 

The agreement, however, also expressly provides that the plan "is not a 

permanent modification," that defendants were required to "make all of [their] 
20 A-3522-21

[trial period plan] payments on time and continue to meet all program 

requirements before [Carrington] can offer you a final Loan Modification," 

and that Carrington would "not be obligated or bound to make any 

modification of the Loan Documents if you fail to meet any one of the 

requirements under this Plan." Thus, realistically assessing the words "in 

relation to the context and the obvious general purpose" 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 defendants' 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 decline a permanent loan 

modification in accordance with the express terms of the agreement. 

This case bears no resemblance to Gonzalez v. Wilshire Credit Corp., 

207 N.J. 557 (2011) or Willoughby, cases in which the Court excoriated the 

practice by mortgagees and servicers of entering into post-judgment 

forbearance agreements with borrowers that effectively turned them into "cash 

cow[s]" without ever providing them new mortgages. Gonzalez, 207 N.J. at 

570; Willoughby, 230 N.J. at 188. Defendants were not induced to make trial 

plan payments on the promise of a permanent loan modification here. 
21 A-3522-21

Carrington revoked the trial plan offer before defendants made a single 

payment. 

And unlike the trial court, we do not find FCI's retention of defendants' 

three trial payments troubling for two reasons. First, as already noted, FCI did 

not solicit those payments; defendants made them voluntarily with the 

knowledge that Carrington had revoked its offer of a trial plan and suggested 

they contact FCI about their options. Second, defendants were obligated to 

make their monthly mortgage payment by the terms of the mortgage and the 

mortgagee was entitled to accept their payments. See Arias, 439 N.J. Super. at 

281 n.6. Further, the trial period plan specified that in the event the plan was 

cancelled or terminated, "any funds in a suspense account shall be credited to 

your loan pursuant to the terms of your loan documents and shall not be 

refunded to you."4 After FCI wrote to defendants in April of its "final denial," 

4

 Although we need not reach plaintiff's additional reason for refusing 

defendants a permanent loan modification, that is their 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 defendants 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 plaintiff to request updated 

financial information following defendants' bankruptcy filing days after 

Carrington offered them a trial period plan. See Restatement (Second) of 

Contracts § 251; Spring Creek Holding Co. v. Shinnihon U.S.A. Co. Ltd., 399 
22 A-3522-21

it returned payments defendants made in April, May and June. There is 

nothing in the record to suggest that plaintiff or its servicer FCI was dangling 

the prospect of a loan modification in order to squeeze additional payments 

from defendants.5 

Defendants' claim that the trial court erred in granting summary 

judgment to plaintiff on their claim that plaintiff breached the covenant of 

good faith and fair dealing in retaining the insurance proceeds requires only 

brief comment. Defendants argue the trial court erred in failing to apply 

N.J. Super. 158, 179 (App. Div. 2008) (discussing how adequate assurances 

may be demanded when "reasonable grounds support the obligee's belief that 

the obligor will breach the contract.") (quoting Danzig v. AEC Corp., 224 F.3d 

133, 137 (Fed. Cir. 2000)).

It is undisputed that in their bankruptcy filing, plaintiffs 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 monthly expenses of $5,066, 

leaving a monthly shortfall of $1,195. Plaintiff objected to confirmation of 

defendants' bankruptcy plan, arguing it was infeasible based as it was on the

unsuccessful loan modification. The bankruptcy court entered an order on 

February 20, 2018, granting plaintiff's motion to deny confirmation and 

dismissed defendants’ 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-3522-21

Wilmington Savings Fund Society, FSB for Pretium Mortgage Acquisition

Trust v. Daw, 469 N.J. Super. 437, 441 (App. Div. 2021) in which we held that 

"[o]nce the lender is provided with adequate information 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 promptly "as to 

whether the requested use of insurance monies for repairs is economically 

infeasible or will impair its security in the property." 

Leaving aside that the Daws were apparently current on their mortgage 

and maintained the required insurance coverages on their home when it 

suffered catastrophic damage in Superstorm Sandy, the event that precipitated 

their mortgage default, id. at 442-43 — unlike defendants, who had been in 

default for seven-and-a-half-years, had been in foreclosure for two years and 

were without homeowner's insurance when defendant Deanna 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 "to determine how the 

insurance funds should be used," the trigger for application of a Daw analysis. 

In their brief to this court, defendants simply ignore the trial court's finding 
24 A-3522-21

that the record contains no proof they provided plaintiff's servicer with any of 

the documents it requested. 

Defendants only repeat their claim that they "submitted all the 

documents" requested by the servicer. In support, they 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 determine how the insurance 

funds should be used," including the estimated cost of repairs, they could not 

establish they'd triggered plaintiff's obligation to advise them "within a 

reasonable period of time as to whether the requested 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 apply in 

the case of force-placed insurance where the mortgage had been in default for 

nearly eight years.6 Thus, we find no error in the finding that defendants failed 

6

 Defendants' mortgage provides that in the event the borrower fails to 

maintain property insurance: 

 
25 A-3522-21

to establish plaintiff breached its covenant of good faith and fair dealing in its 

handling of the insurance proceeds thereby providing an equitable defense to 

foreclosure.7

Lender may obtain insurance coverage, at Lender’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, hazard or 

liability and might provide greater or lesser coverage 

than was previously in effect. Borrower 

acknowledges that the cost of the insurance coverage 

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 disbursement 

and shall be payable, with such interest, upon notice 

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 made 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 earnings on such proceeds." 

Defendants assert that assuming arguendo the repairs were economically 

infeasible, "plaintiff had an obligation to apply the insurance proceeds 
26 A-3522-21

We agree with defendants the trial court should have held oral argument 

on plaintiff's summary judgment motion and defendants' cross-motion to sever 

defendants' claims against FCI or permit them to file 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 granted 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 insurance proceeds. 

We agree with defendants the trial court initially denied that request 

limiting defendants to a credit for those sums against the amount due. And 

although the court denied defendants' reconsideration motion, it clarified its 

promptly to the mortgage balance, which had the potential to substantially 

reduce the interest owed." They devote, however, only a paragraph of their 

brief to that issue. They make no attempt to explain 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 owed or to explain how its effect 

on the upset price at the sheriff's sale would have made 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 argument" 

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 our consideration in a written 

opinion. Nextel of New York, Inc. v. Borough of Englewood Cliffs Bd. of 

Adjustment, 361 N.J. Super. 22, 45 (App. Div. 2003). We thus do not consider 

defendants' alternate argument that plaintiff breached its alleged obligation to 

apply the forced-placed policy proceeds promptly to the mortgage balance. 
27 A-3522-21

order "restricted defendants' relief against plaintiff" in the foreclosure "to a 

credit at final judgment for any payments made to plaintiff 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," and "severed defendants' 

claims against non-party FCI and allowed defendants to file a complaint in the 

Law Division." 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 defendants' 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 defendants 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 established its right to 

foreclose the mortgage, that defendants did not succeed in establishing 

plaintiff should be barred from asserting that equitable remedy, and that final 

judgment of foreclosure was properly entered against defendants. Defendants' 

remaining arguments, to the extent we have not addressed them, lack sufficient 

merit to warrant discussion in a written opinion. See R. 2:11-3(e)(1)(E). 
28 A-3522-21

Affirmed.