Opinion
DOCKET NO. A-1884-10T3
12-29-2011
DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee on Behalf of the HSI Asset Securitization Corporation Trust 2006-HE2, Plaintiff-Respondent, v. MUTHONI MWANGI, Defendant-Appellant.
David M. Schlachter argued the cause for appellant. Kristina G. Murtha (KML Law Group) Murtha argued the cause for respondent.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-23596-08.
David M. Schlachter argued the cause for appellant.
Kristina G. Murtha (KML Law Group) Murtha argued the cause for respondent. PER CURIAM
In this foreclosure matter, defendant Muthoni Mwangi seeks reversal of the Chancery Division's order dated October 22, 2010, denying her request to extend the period of redemption a second time in order to pursue mediation. We affirm.
Defendant is a homeowner in Closter who was in default on her mortgage. A foreclosure action was brought against her and others by plaintiff Deutsche Bank National Trust Company. No answer to the complaint was filed, leading to the entry of default and then default judgment in favor of plaintiff.
The complaint also named as defendants a "Mr. Mwangi," Mortgage Electronic Registration Systems, Inc., and the State of New Jersey. Ms. Mwangi is the only defendant who has participated in the trial court proceedings and in this appeal.
After several postponements, a sheriff's sale took place in April 2010, granting plaintiff title to the premises. In June 2010, appellant moved to vacate the final judgment and property transfer resulting from the sheriff's sale.
On July 22, 2010, Judge Harry G. Carroll denied defendant's motion to vacate the sale, but he extended the period of redemption by ninety days, which allowed the parties to engage in foreclosure mediation. That ninety-day period expired on October 19, 2010. Unfortunately, defendant and her attorney did not present the lender with a mediation package containing all of the necessary financial documents until about a week before the ninety-day period expired, which realistically did not allow enough time for the mediation to be completed. Defendant then moved to extend the redemption period a second time.
After considering oral argument, Judge Carroll rejected defendant's request for a second extension. In his oral opinion, the judge concluded that defendant had not adequately taken advantage of the ninety-day extension and denied defendant's application as untimely.
On appeal, defendant argues that the trial court erred in declining to extend the redemption period a second time. She contends that she was entitled to participate in the mediation program and that she had encountered delays in assembling the necessary financial documents for the mediation. She maintains that the trial court's refusal to order a second extension of time was inequitable and should, therefore, be reversed.
Although defendant's circumstances are sympathetic, as they often are in foreclosure cases, we defer to the trial court's exercise of discretion in denying the time extension. Defendant did not have an open-ended and absolute right to take part in foreclosure mediation on her own time schedule. We do not read U.S. Bank National Association v. Williams, 415 N.J. Super. 358 (App. Div. 2010), the main case cited by defendant, to require that her period of redemption be extended a second time. Indeed, the court in Williams upheld the denial of a borrower's request to extend the redemption period after a mediation session held prior to the expiration of the period failed to produce a settlement. Id. at 364-65, 374. There was no indication in Williams, nor is there in the present case, that the lender acted in bad faith and unfairly attempted to thwart the borrower's ability to mediate a solution.
In sum, the trial court was sufficiently indulgent with defendant and did not abuse its discretion by denying her a further extension of time. See Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (noting that discretionary judicial determinations should not be overturned unless they are "'so wide off the mark'" as to cause a "'manifest denial of justice'" (quoting State v. Carter, 91 N.J. 86, 106 (1982))); Williams, supra, 415 N.J. Super. at 365.
Affirmed.
I hereby certify that the foregoing
is a true copy of the original on
file in my office
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CLERK OF THE APPELLATE DIVISION