M&T BANK, ETC. VS. DANIEL B. GRAVES (F-002952-16, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1497-17T2

M&T BANK, successor by

merger to HUDSON CITY

SAVINGS BANK,

Plaintiff-Respondent,

v.

DANIEL B. GRAVES,

Defendant-Appellant,

and

MRS. DANIEL B. GRAVES,

his wife, JENNIE B. GRAVES,

MR. GRAVES, husband of JENNIE

B. GRAVES, and PNC BANK,

NATIONAL ASSOCIATION,

Defendants.

_______________________________

Submitted September 18, 2018 – Decided October 30, 2018

Before Judges Yannotti and Rothstadt.

On appeal from Superior Court of New Jersey,

Chancery Division, Essex County, Docket No. F-

002952-16.

Murano & Roth, LLC, attorneys for appellant (John F.

Murano, on the briefs).

Parker, McCay, PA, attorneys for respondent (Eugene

M. Mariano, of counsel; Stacy L. Moore, Jr., on the

brief).

PER CURIAM

In this residential foreclosure action filed by plaintiff, M&T Bank,

successor by merger to Hudson City Savings Bank, defendant Daniel Graves1

appeals from the Chancery Division's denial of his motion for a stay of a

foreclosure under a statute enacted by the Legislature as part of its efforts to

"codify and expand standards and safeguards for the treatment of individuals

. . . seeking financial assistance in recovering from Superstorm Sandy. [2]"

N.J.S.A. 52:15D-3.

The relevant provisions of the statute upon which defendant relied in the

trial court, and now on appeal, states the following:

1

Although named as a defendant, Daniel Graves' wife Jennie Graves is not

participating in this appeal.

2

"'Superstorm Sandy' means the major storm that made landfall in New Jersey

on October 29, 2012." N.J.S.A. 52:13D-4.

A-1497-17T2

2

a. A Sandy-impacted homeowner shall be eligible for a

forbearance regardless of whether the homeowner’s

primary residence is already the subject of a foreclosure

proceeding. The Sandy-impacted homeowner shall

apply to the commissioner, on forms to be provided by

the department, for a certification of eligibility for the

forbearance under this subsection before the first day of

the third month next following the date when the

commissioner makes the application available pursuant

to subparagraph (b) of paragraph (1) of subsection (e)

of this section. The commissioner shall approve or

deny an application within 30 days of its delivery to the

commissioner. If the application is not approved or

denied within 30 days of its delivery, the application

shall be deemed approved.

b. The forbearance period shall conclude upon the

earlier of:

(1) the conclusion of one year following

issuance of a certificate of occupancy for

recovery and rebuilding program work;

(2) July 1, 2019; or

(3) regarding a property in foreclosure

proceedings, upon the expiration of 10

days following sheriff’s sale.

....

d. A Sandy-impacted homeowner who was the subject

of a foreclosure proceeding as of August 10, 2015, the

effective date of P.L.2015, c.102 (C.52:15D-3 et seq.)

shall, upon good cause shown, be awarded, by the court

and upon application by the property owner, a stay in

the foreclosure proceedings. An application to the

court by a property owner under this subsection shall

A-1497-17T2

3

be made before the first day of the fifth month next

following the effective date of P.L.2017, c.15, unless

the courts in their discretion permit application

submission for a longer period. The receipt of rental

assistance from the Federal Emergency Management

Agency as a result of damage to the homeowner’s

primary residence due to Superstorm Sandy, or

approval for assistance through the RREM

[Reconstruction, Rehabilitation, Elevation and

Mitigation] or LMI [Low-to-Moderate Income]

program, shall constitute good cause for the award of a

stay under this subsection for a period concluding upon

the earlier of:

(1) the conclusion of one year following

issuance of a certificate of occupancy for

recovery and rebuilding program work; or

(2) July 1, 2019.

[N.J.S.A. 52:15D-13 (Emphasis added).]

Relatedly, N.J.S.A. 52:15D-4 states the following:

"Sandy-impacted homeowner" means a homeowner for

whom one or both of the following are true:

(1) the homeowner received rental

assistance from the Federal Emergency

Management Agency as a result of damage

to his or her primary residence due to

Superstorm Sandy; or

(2) the homeowner has been approved for

assistance through the [Reconstruction,

Rehabilitation, Elevation and Mitigation

(RREM)] or [Low-to-Moderate Income

and the program for which policies and

A-1497-17T2

4

procedures have been adopted by the

Department of Community Affairs (LMI)]

program.

[N.J.S.A. 52:13D-4.]

It also defines "forbearance" as "a period of time during which obligations for

mortgage and interest payments are suspended." Ibid.

After considering the statute, Judge Donald A. Kessler determined that,

although defendant was entitled to the "forbearance" provided for under

subsection (a), he was not eligible for a stay under subsection (d) because

plaintiff filed its foreclosure action after the date for eligibility stated in the

statute. Judge Kessler then considered defendant's application for a stay under

the traditional analysis stated in Crowe3 and denied his application.

On appeal, defendant argues that he was entitled to a stay of a scheduled

sheriff's sale because he qualified for a "forbearance" under subsection (a). He

contends that Judge Kessler should not have applied Crowe to his application,

improperly considered defendant's motion under subsection (d) of the statute,

and failed to give effect to the forbearance to which defendant was entitled by

failing to stay the foreclosure proceedings. Defendant relies upon the statute's

3

Crowe v. De Gioia, 90 N.J. 126, 132-35 (1982).

A-1497-17T2

5

legislative history, which he argues supports his entitlement to a stay of the

foreclosure action. We disagree.

The facts leading to defendant's application for a stay are generally not in

dispute and are summarized as follows. After plaintiff instituted this action in

January 2016, and defendant filed a contesting answer. The trial court entered

summary judgment in favor of plaintiff and on May 10, 2017, it entered a final

judgment of foreclosure against defendant in the amount of $2,371,409.05. The

court then scheduled a sheriff's sale and defendant filed a motion for a stay under

the statute. Defendant specifically requested the court to "stay the foreclosure

sale until the conclusion of one year following issuance of a certificate of

occupancy for recovery and rebuilding work, or July 1, 2019, whichever shall

first occur."

In support of his motion, defendant filed a certification in which he

explained the problems he and his wife had that led to the foreclosure, the details

of their pursuit for assistance through government sponsored relief programs for

victims of Superstorm Sandy, and the basis for his entitlement for a stay under

the statute. According to defendant, in 2011 he and his wife borrowed

$2,030,000 from plaintiff's predecessor to refinance their family home in Short

Hills. Their mortgage note required that they make monthly payments of

A-1497-17T2

6

$7,823.96 beginning on April 1, 2011. The couple made those payments through

April 2015, when they defaulted.

From 2004 through 2016, defendant and his wife were self-employed. In

2012, defendant's home suffered damage as a result of Superstorm Sandy, which

required structural repairs. In February 2015, defendant was hospitalized and

unable to work full-time. Defendant’s illness caused him to experience a

reduction in income and to have "no resources to make any remaining repairs on

[the] house nor could [he and his wife] afford to move out of the house."

Defendant sought relief from the Federal Emergency Management

Agency (FEMA) as well as from his homeowner's insurance company. Due to

a shortage of contractors as well as an "overload" on inspectors for both the

insurance company and FEMA, it took "the balance of 2012 [and] all of 2013

through the first quarter of 2014 . . . to complete as many repairs as [defendant]

could afford." Ibid. During this period of "triage" repairs, defendant remained

in the home and incurred out-of-pocket expenses totaling $51,693.00, receiving

only "a minimal award from FEMA." To pay for these repairs, defendant

"depleted [his and his wife's] savings and liquidated [their] pensions."

In November 2015, defendant learned about the ReNew Jersey Stronger

LMI program that offered financial assistance to Sandy victims. In March 2016,

A-1497-17T2

7

he submitted an application to the program, which was initially denied.

Defendant appealed to the Department of Community Affairs (DCA) and

ultimately reached a settlement on July 27, 2016, that resulted in a grant of

$89,937.78 with the possibility of the amount being increased to $150,000.

After being informed of additional relief available to him through the

DCA and making the required application, on May 2, 2017, the DCA issued a

"Certificate of Eligibility Sandy-Impacted Forbearance Certification." The

DCA provided the certificate to plaintiff and advised that defendant was entitled

to "a term of forbearance," which would conclude on "the earlier of . . . one year

following issuance of a Certificate of Occupancy for the mortgagor's

Superstorm-Sandy impacted primary residence; July 1, 2019; or, regarding a

property in foreclosure proceedings, upon the expiration of 10 days following a

sheriff's sale." The notification did not mention a stay of the pending foreclosure

proceedings. Nevertheless, defendant relied upon that certificate in his

application to Judge Kessler for a stay of the foreclosure proceedings under

subsection (a) of the statute.

On November 9, 2017, after considering defendant's certification and the

parties' arguments, Judge Kessler entered an order denying defendant's motion

to stay the foreclosure proceedings accompanied by a statement of reasons. The

A-1497-17T2

8

judge considered and rejected defendant's argument that, because he was

qualified for a term of forbearance under subsection (a), he was entitled to a

stay. Judge Kessler explained that he denied defendant's motion because

defendant failed to meet the criteria for injunctive relief set forth in Crowe. 4

Specifically, he found that defendant failed to show a probability of success on

the merits because he was ineligible for a stay under subsection (d), as plaintiff's

foreclosure action was filed after the date set forth in the statute, August 10,

2015.

Even if the foreclosure action commenced before that date, the judge

concluded that defendant failed to show "good cause" as required under

subsection (d). He stated that defendant failed to show "clear and convincing

evidence that default on the mortgage was a direct result of Hurricane Sandy"

and that he did not provide evidence excusing his late filing for a stay of the

foreclosure proceedings. Judge Kessler noted that, despite having received

government funds, defendant did not alert plaintiff of financial distress until

March 2015. The judge also observed that there was no evidence that the

4

Under Crowe, parties seeking an injunction must demonstrate: (1) that without

a preliminary injunction or stay, irreparable harm will occur; (2) that the

applicant's underlying claims are settled; (3) that the applicant can show a

reasonable probability of success on the merits; and (4) that a balancing of

hardships weighs in favor of granting relief. Crowe, 90 N.J. at 132-34.

A-1497-17T2

9

application for staying the foreclosure was "attributable to circumstances

beyond [defendant's] control." Moreover, the judge found that defendant failed

to demonstrate irreparable harm and after balancing the equites, concluded that

defendant was not entitled to relief.

Judge Kessler specifically considered the language and construction of the

statute and concluded it clearly indicated that given the separate procedures for

forbearance and foreclosure under the statute, a homeowner could apply for

either or both. He noted that forbearance did not include a right to a stay because

"[i]f foreclosure was automatically stayed upon receipt of a Sandy-impacted

forbearance, there would be no reason . . . to include a provision that premises

the conclusion of forbearance on completion of a sheriff's sale." The judge

found further "evidence that the statute does not treat stay and forbearance

synonymously" under subsection (f) of the statute.5 Quoting from that

5

Subsection (f) states the following:

f. Sandy-impacted homeowners awarded a stay of

foreclosure proceedings or forbearance, or both, under

this section shall be responsible for the maintenance of

the property during the stay or period of forbearance, or

both. After service of notice of any proceedings

conducted to terminate forbearance, made on the

mortgagor at an address determined pursuant to due

diligence of the movant mortgagee or creditor to be the

A-1497-17T2

10

subsection, the judge pointed out that it provided that a homeowner "awarded a

stay of foreclosure proceedings or forbearance or both . . . shall be responsible

for maintenance of the property."

Based on the clear distinction of the relief provided under the statute,

Judge Kessler rejected defendant's argument and denied his motion for a stray.

This appeal followed.

We review a trial court's denial of a stay under an abuse of discretion

standard. Granata v. Broderick, 446 N.J. Super. 449, 469 (App. Div. 2016).

"The granting of a stay is discretionary with the trial court, 'limited only by

special equities showing abuse of discretion in that injustice would be

perpetrated on the one seeking the stay, and no hardship, prejudice or

inconvenience would result to the one against whom it is sought.'" Ibid. (quoting

Gosschalk v. Gosschalk, 48 N.J. Super. 566, 579 (App. Div. 1958)).

An abuse of discretion occurs "when a decision 'is made without a rational

explanation, inexplicably depart[s] from established policies, or rest[s] on an

actual current residence of the mortgagor, providing

opportunity for the mortgagor to respond and contest

the proceedings, a stay of foreclosure proceedings or

forbearance, or both, awarded under this section shall

cease immediately upon a court’s determination that the

subject residential property has been abandoned by the

Sandy-impacted homeowner.

A-1497-17T2

11

impermissible basis.'" US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467

(2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)). It is

this court’s obligation to determine "whether the trial judge pursue[d] a

manifestly unjust course[,]" which requires reversal. Gillman v. Bally Mfg.

Corp., 286 N.J. Super. 523, 528 (App. Div. 1996) (quoting Gittleman v. Cent.

Jersey Bank & Trust Co., 103 N.J. Super. 175, 179 (App. Div. 1967), rev'd on

other grounds, 52 N.J. 503 (1968)); see also Burns v. Hoboken Rent Leveling &

Stabilization Bd., 429 N.J. Super. 435, 443 (App. Div. 2013). However, we

review de novo the trial court's resolution of legal issues relative to its decision.

See Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995); State v. Gandhi, 201 N.J. 161, 176 (2010).

At issue here is the trial court's resolution of a legal issue, the

interpretation of N.J.S.A. 53:15D-13. "Questions pertaining to statutory

interpretation are legal in nature, so '[w]e review such decisions de novo,

"unconstrained by deference to the decisions of the trial court . . . ."'" State v.

Fuqua, __ N.J. __, __ (2018) (Slip op. at 7-8) (quoting State v. S.B., 230 N.J.

62, 67 (2017)).

In interpreting a statute, our primary objective is to ascertain the intent of

the Legislature by first looking to the "statutory language.". DiProspero v. Penn,

A-1497-17T2

12

183 N.J. 477, 492 (2005). The language of the statute is "the best indicator" of

legislative intent. In re Plan for the Abolition of the Council on Affordable

Hous., 214 N.J. 444, 467 (2013). "[W]e 'give words "their ordinary meaning

and significance,"' acknowledging that the 'statutory language is "the best

indicator of [the Legislature's] intent."'" Fuqua, __ N.J. at __ (Slip op. at 8)

(quoting Tumpson v. Farina, 218 N.J. 450, 467 (2014)) (alteration in original).

We "read them in context with related provisions so as to give sense to the

legislation as a whole." DiProspero, 183 N.J. at 492 (citations omitted); Hardy

ex rel. Dowdell v. Abdul-Matin, 198 N.J. 95, 101 (2009); N.J. Election Law

Enf't Comm'n v. DiVincenzo, 451 N.J. Super. 554, 576 (App. Div. 2017). "If

the plain language leads to a clear and unambiguous result, then [the]

interpretive process is over." Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys., 192 N.J. 189, 195 (2007).

We "will not presume that the Legislature intended a result different from

what is indicated by the plain language or add a qualification to a statute that

the Legislature chose to omit." Fuqua, __ N.J. at __ (slip op. at 8) (quoting

Tumpson, 218 N.J. at 467-68). It is impermissible for courts to rewrite plainly

worded statutes. Lippman v. Ethicon, Inc., 222 N.J. 362, 388 (2015).

A-1497-17T2

13

We only resort to extrinsic evidence, such as legislative history and

committee reports, in the event that the statutory language at issue is ambiguous.

Fuqua, __ N.J. at __ (Slip op. at 8). If a statute is unambiguous, it will be applied

as written and will not require a court to analyze legislative history. Hargrove

v. Sleepy's, LLC, 220 N.J. 289, 301 (2015) (citations omitted). It is only when

the language does not yield an unambiguous interpretation that we continue the

process to discern legislative intent, interpreting statutory language "in

accordance with common sense" and we may "consider the entire legislative

scheme of which a particular provision is but a part." Morristown Assocs. v.

Grant Oil Co., 220 N.J. 360, 380 (2015). We may turn to extrinsic evidence,

"including legislative history, committee reports, and contemporaneous

construction." DiProspero, 183 N.J. at 492-93 (citation omitted); see also

Burnett v. Cty. of Bergen, 198 N.J. 408, 421 (2009). There are many tools

available for analysis, but only one goal. North Jersey Media Grp. v. Bergen

Cty. Prosecutor's Office, 447 N.J. Super. 182, 200 (App. Div. 2016).

"Regardless of the materials relied upon and the analytical tools employed, in

the final analysis, courts should seek to effectuate the fundamental purpose for

which the legislation was enacted." In re Young, 202 N.J. 50, 64 (2010) (citation

omitted).

A-1497-17T2

14

Applying these guiding principles, we conclude defendant's argument that

he was eligible for a stay of the foreclosure proceedings in this case by virtue of

entitlement to a forbearance under subsection (a) is without sufficient merit to

warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm

substantially for the reasons expressed by Judge Kessler in his cogent statement

of reasons. We add only the following brief comments.

We agree with Judge Kessler that there is no ambiguity in the statute's

clear language regarding who is entitled to a stay of foreclosure proceedings.

However, even if we found some ambiguity that warranted our consideration of

the statute's legislative history as argued by defendant, we would reach the same

conclusion that defendant was not entitled to a stay of the foreclosure

proceedings. The statute's legislative history is replete with evidence that the

Legislature exercised its authority to establish two different remedies to address

Superstorm Sandy victims' financial distress depending upon what their

circumstances were at the time. For example, a statement made accompanying

proposed amendments to the statute's original version, make clear that such

amendments "allow[ed] Sandy-impacted homeowners who are already in

foreclosure to apply for the same mortgage forbearance relief that the bill

permits other Sandy-impacted homeowners to apply for, in addition to a stay of

A-1497-17T2

15

the foreclosure proceedings." Statement with Assemb. Floor Amendments to A.

333 (June 27, 2016).

There is no indication that a Sandy-impacted homeowner against whom a

foreclosure was filed months after the statutory deadline would be entitled to a

stay of those proceedings if found to be eligible for forbearance as provided

under subsection (a). Moreover, the Legislature's use of a cut-off date for

qualified applicants was a proper attempt to limit eligibility for a stay to those

whose distress was actually caused by Superstorm Sandy's impact, rather than

other personal or financial problems. See Brown v. State, 356 N.J. Super. 71,

82 (App. Div. 2002) (finding the Legislature was acting within its constitutional

authority when it imposed a cut-off date to limit social benefits that it conferred).

Affirmed.

A-1497-17T2

16