SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4651-16T4

U.S. BANK NA, Successor Trustee 

to Bank of America, NA, Successor

in Interest to LaSalle Bank NA, as 

Trustee, on Behalf of the Holders

of the WAMU Mortgage Pass-Through

Certificates, Series 2006-AR9,

Plaintiff-Respondent,

v.

EDWARD G. PETRAGLIA,

Defendant-Appellant,

and 

MRS. EDWARD G. PETRAGLIA, 

his wife, UNITED STATES OF 

AMERICA, and STATE OF NEW

JERSEY,

Defendants.

_____________________________

Submitted January 16, 2019 - Decided March 27, 2019

Before Judges Accurso and Vernoia.

NOT FOR PUBLICATION WITHOUT THE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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On appeal from Superior Court of New Jersey, 

Chancery Division, Monmouth County, Docket No. 

F-010688-15.

Denbeaux & Denbeaux, attorneys for appellant (Joshua 

W. Denbeaux, on the brief).

Parker Ibrahim & Berg, LLP, attorneys for respondent

U.S. Bank, N.A. (Scott W. Parker and Daniel A. 

Schleifstein, on the brief).

Flowers & O'Brien, LLC, attorneys for respondents

Gregory J. Tencza and 314 Atlantic Avenue – Spring 

Lake, LLC (W. Mark O'Brien and Michele A. Daitz, of 

counsel and on the brief).

PER CURIAM

In this residential mortgage foreclosure, defendant Edward G. Petraglia 

appeals from a May 30, 2017 order denying his application to vacate a sheriff's 

sale and restrain delivery of the deed to the purchaser, intervenor Gregory J. 

Tencza. Defendant argues the issuance of a reinstatement quote by plaintiff U.S. 

Bank, N.A.'s servicer to him in the days before the sale constituted a binding 

settlement agreement enforceable under GMAC Mortg., LLC v. Willoughby, 

230 N.J. 172, 176 (2017). We disagree and affirm.

Defendant borrowed $1,260,000 from Washington Mutual Bank, F.A. in 

June 2006, secured by a thirty-year non-purchase-money mortgage on his home 
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in Spring Lake. The note went into default in January 2009 for non-payment. 

Several months later, the mortgage was assigned to plaintiff.

No further payments were ever made and plaintiff filed a foreclosure 

complaint in March 2015. Defendant never appeared in the action, and final 

judgment was entered in August 2016. Plaintiff obtained a writ of execution 

and scheduled a sheriff's sale for March 6, 2017. After exercising his two

statutory adjournments, defendant moved to vacate the final judgment and 

further stay the sale. 

The General Equity judge entered an order on March 27, further 

adjourning the sale to May 8 to permit briefing and argument on the motion, 

while noting the parties were free to "consider reinstat[ing] [the] mortgage."

The judge denied the motion to vacate the judgment on April 28.

On Monday, May 1, one week before the sheriff's sale, defendant's counsel 

wrote to plaintiff's counsel proposing a forbearance agreement based on an

immediate payment of $50,000 and monthly payments of $11,000 with the 

remaining balance to reinstate to be paid no later than April 30, 2018.1 

 

1

 Plaintiff's counsel filed a certification in the trial court averring plaintiff had 

already rejected a similar offer on April 7, 2017 and again on April 28, 2017, 

and he had advised defendant's counsel the bank was only interested in 

immediate reinstatement or a payoff of the entire balance due.
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Defendant's counsel wrote a second letter that same day asking that the servicer 

provide an updated reinstatement quote good through that Friday.2 In that letter, 

defendant's counsel stated

[d]efendant advises me that it is his intention to deposit 

an amount sufficient to pay the Reinstatement Quote in 

my office trust account so that it is received and 

available no later than Thursday, May 4, 2017. We will 

provide proof of funds upon receipt of the deposit of 

the funds.

The letter continued:

Please also confirm that if we can provide proof 

of funds in my trust account for an amount sufficient to 

reinstate and [the servicer] is unable, due to the 

limitations of time, to provide the reinstatement quote 

requested, that the Plaintiff will agree to adjourn the 

Sheriff's Sale for a period of two (2) weeks. It is 

understood that this request would require my office to 

confirm the funds in place or provide other satisfactory 

proof that funds are held.

On Wednesday, May 3, defendant telephoned the servicer directly 

requesting a payoff figure and assistance in expediting the updated reinstatement 

quote. Defendant followed up his call with an email that he be provided, "if 

possible," with "a quote with a 'good to date' at least until 5:00 p.m. Friday 5 

May 2017." 

 

2

 Plaintiff's servicer had on or about March 28 provided defendant a 

reinstatement quote good through April 14 of $608,420.25. 
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Plaintiff's servicer responded with a letter dated Thursday, May 4, but not 

telefaxed to defendant until the morning of May 5, advising he could "cure the 

delinquency by paying the total Reinstatement Amount" of $615,206.20 by the

"Reinstatement Good to Date" of May 4, by 5:00 p.m. The letter stated that 

"[i]ssuance of this Reinstatement Quote does not constitute an agreement by [the 

servicer] to suspend pending or future legal action." It further advised defendant 

that if he was unable to pay the total reinstatement amount on or before the 

"Good to Date," he must contact the servicer for an updated reinstatement quote 

prior to remitting payment. Finally, the letter warned that the servicer 

"reserve[d] the right to either reject or apply funds received after the expiration 

of this Reinstatement Quote, and, if insufficient to fully reinstate, [the servicer] 

may elect to apply the funds to your account." On Friday, May 5, the servicer's 

ombudsman emailed a message to defendant extending the term of the "Good to 

Date" to 2:00 p.m. of that same day. The email further stated that "[p]roof of 

funding, for the entire amount is required in order to consider any 

reinstatement." 

On Monday morning, May 8, defendant's counsel appeared before the 

General Equity judge seeking to stay the sheriff's sale scheduled for that 

afternoon for an additional thirty days. Counsel asserted that "[d]efendant had 
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assistance to reinstate [the] mortgage prior to this date but received [the] 

reinstatement quote on Friday and did not have sufficient time to make 

arrangements for payment." In support of the application he presented two 

letters, one from an investor saying it would not be able to assist in transferring 

the sums necessary "to [defendant's] attorney or to any third party, such as 

[defendant's] lender, absent clear documents," and the other from a cousin of 

defendant's representing he could provide proof of funds necessary to reinstate 

within one or two days, with funds to be transmitted by the end of the week if 

necessary. The judge denied the motion and the sheriff's sale of defendant's 

home went forward as scheduled and was sold to intervenor as the highest 

bidder.

Defendant, with new counsel, filed an application for an order to show 

cause with temporary restraints seeking to restrain the sheriff's delivery of the 

deed and set aside the sale in order to permit defendant the opportunity to 

reinstate the mortgage. Defendant's counsel argued the parties had agreed to 

settle the matter by permitting defendant to reinstate in accordance with a 

reinstatement letter plaintiff's servicer agreed to supply. He claimed defendant 

had sufficient funds to allow reinstatement by the Friday, May 5 at 5:00 p.m. 

deadline and would have tendered the funds by that date but for defendant's 
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clerical error of including an already expired "Good to Date" coupled with the 

warning that funds submitted after that date could be applied to the account 

without reinstatement. Counsel further argued that plaintiff's insistence on proof 

of funds was a new term not previously a part of their agreement. Defendant 

maintained plaintiff's failure to provide a reinstatement quote as previously 

agreed breached the parties' contract entitling him to set aside the sheriff's sale.

The General Equity judge denied the motion, finding there was no 

obligation for plaintiff to provide defendant with an opportunity to reinstate after 

entry of judgment. Notwithstanding, the bank had done so on more than one 

occasion and defendant had never tendered the funds nor demonstrated the 

ability to do so. Acknowledging that the bank tendering a reinstatement quote 

with a deadline that had already passed "certainly is improper," the judge found

"proof of funding was always necessary" and never provided by defendant. The 

judge found there was no enforceable contract between the parties, no reason to 

stay the sale and no reason to stay transfer of the deed to the third-party 

purchaser.

The judge denied defendant's application to stay her decision pending 

appeal. We likewise denied defendant's application to file an emergent motion 

to stay the deed transfer and subsequently denied defendant's emergent 
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application to stay his ejectment pending appeal, finding no reasonable 

probability of success on the merits under Willoughby. Specifically, we noted 

that unlike in Willoughby, "there is no mutually executed loan modification 

agreement. The May 4, 2017 correspondence from the mortgage servicer 

specifies that 'Issuance of this Reinstatement Quote does not constitute an 

agreement . . . to suspend pending or future legal action . . . [.]'" Defendant's 

request for emergent relief in the Supreme Court was denied by a single justice.

Defendant appeals, reprising the arguments he made in the trial court that 

the parties entered into a settlement contract to cure the default and end the 

foreclosure. Having now reviewed the entire record, our view is unchanged 

from when we denied defendant's motion to stay the eviction. As our recounting 

of the history of this matter makes clear, the parties never agreed to allow 

defendant to reinstate his loan after entry of final judgment. 

The correspondence between the parties establishes that plaintiff simply 

offered to permit defendant to reinstate if he could muster the necessary funds 

to do so. It also establishes that the General Equity judge was correct that proof 

of funding was always necessary as acknowledged by defendant's counsel in his 

correspondence to the bank's lawyer. The record is equally clear that defendant 

did not, as his attorney represented to plaintiff he intended, deposit the funds 
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necessary to reinstate into his attorney's trust account by May 4 or at any time 

thereafter. Because there was no settlement agreement between the parties postjudgment, Willoughby is not applicable here.

Affirmed.