Catic Title Insurance Company, Etc. v. Richard Cecere

NOT FOR PUBLICATION WITHOUT THE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-2620-21

CATIC TITLE INSURANCE

COMPANY f/k/a NEW JERSEY

TITLE INSURANCE COMPANY,

Plaintiff-Respondent,

v.

FRANK J. COZZARELLI,

Defendant-Appellant,

and

CHAMPION MORTGAGE,

Defendant-Respondent,

and

WELLS FARGO BANK, N.A.,

Defendant,

and

RICHARD CECERE and

ROSEMARIE CECERE,

Defendants/Third-Party

Plaintiffs-Respondents,

v.

WELLS FARGO BANK, N.A.,

and MARGARET HARKNESS,

Third-Party Defendants-

Respondents,

and

SECRETARY OF HOUSING AND

URBAN DEVELOPMENT (HUD),

Third-Party Defendant.

_____________________________

Submitted October 24, 2023 – Decided March 7, 2024

Before Judges Gooden Brown and Natali.

On appeal from the Superior Court of New Jersey,

Chancery Division, Essex County, Docket No. C-

000212-17.

Frank J. Cozzarelli, appellant pro se.

Schenck Price Smith & King LLP, attorneys for

respondent CATIC Title Insurance Company (Mark

Silver and Jonathan F. Donath, of counsel and on the

brief).

Reed Smith LLP, attorneys for respondent Wells Fargo

Bank, N.A., and Margaret Harkness (Aaron M. Bender,

of counsel and on the brief).

A-2620-21

2

Richard Cecere and Rosemarie Cecere, respondents pro se.

PER CURIAM

In this mortgage lien priority dispute, defendant Frank Cozzarelli appeals

from the December 8, 2021, Chancery Division order granting summary

judgment to plaintiff CATIC Title Insurance Company (CATIC), formerly

known as New Jersey Title Insurance Company, 1 and denying Cozzarelli's

motion to dismiss CATIC's declaratory judgment complaint seeking a

declaration that Cozzarelli's mortgage was subordinate to the mortgage of its

insured, defendant Wells Fargo Bank, N.A. (Wells Fargo). Cozzarelli also

appeals from the February 18, 2022, order denying reconsideration. We affirm

substantially for the reasons articulated in Judge James R. Paganelli's well-

reasoned opinions.

I.

We glean these facts from the record. Since 1999, defendant Rosemarie

Cecere had owned in fee simple the marital residential property at issue in this

1

For ease of reference, we use CATIC throughout the opinion notwithstanding

the fact that it may have been known as New Jersey Title Insurance Company at

the time of the underlying event.

A-2620-21

3

appeal. On April 7, 2009, Rosemarie 2 deeded the property to her husband,

defendant Richard Cecere, so that he could secure a reverse mortgage from

Wells Fargo. Cozzarelli, who was then a practicing attorney, 3 prepared the April

7, 2009, deed.

Because of her age, Rosemarie did not meet the minimum age requirement

to qualify for a reverse mortgage herself. According to the Ceceres'

certifications and deposition testimony, Margaret Harkness, a loan officer for

Wells Fargo, had advised them about the age disqualification and had explained

to them that Richard could deed the property back to his wife and himself after

the closing.

The reverse mortgage ownership interest certification signed by the

Ceceres and Harkness stated:

If you have an ownership interest in the . . .

property, but will not be a borrower under the proposed

reverse mortgage, you need to be aware of the

following:

The Lender does not recommend or

require any changes to the ownership of

2

Because of the common surname, we use first names to avoid confusion and

intend no disrespect.

3

In In re Cozzarelli, our Supreme Court accepted the Disciplinary Review

Board's recommendation to disbar Cozzarelli "based on the proof of knowing

misappropriation of client and escrow funds." 225 N.J. 16, 18 (2016).

A-2620-21

4

real property as a condition to making a

reverse mortgage loan. However, the

reverse mortgage program has certain

restrictions that prevent some property

owners from being eligible borrowers.

These restrictions also prohibit an

individual from holding an ownership

interest in property if they are not an

eligible borrower.

As a result of these restrictions, any

non-eligible owners will be required to

relinquish their ownership interest in the

property. By relinquishing your ownership

interest, you are affecting your legal rights.

The Lender strongly suggests that you

consult with your financial and/or legal

advisor(s) to determine if this reverse loan

is in your best interest.

If you continue to reside in the

property after divestiture and the borrower

predeceases you or no longer occupies the

property as their primary residence, the

reverse mortgage will become due and

payable. Typically, the borrower's estates

must pay off the reverse mortgage through

the proceeds of the sale of the property or

through a refinance into a new mortgage.

I hereby certify that I have received

and read this disclosure. I understand and

agree that the Lender has made no

representations regarding my legal rights,

but has strongly suggested that I seek legal

advice before signing this or any other

document associated with the reverse

mortgage loan.

A-2620-21

5

On April 24, 2009, Wells Fargo and Richard executed a "Home Equity

Conversion Loan Agreement," whereby Wells Fargo provided a reverse

mortgage loan to Richard secured by a mortgage on the property for the sum of

$938,250. At his deposition, Cozzarelli confirmed that although he did not

provide legal advice in connection with the April 24, 2009, closing, he attended

and notarized several documents.

On May 4, 2009, the deed transferring the property to Richard and the

reverse mortgage were recorded with the Essex County Register's Office. On

the same day, Buyer Defender Inc. issued a title insurance policy to Wells Fargo

for CATIC. Richard is the sole shareholder of Buyer Defender, Inc., a title

insurance agent retained by CATIC. The policy listed Wells Fargo as the

insured mortgagee on the reverse mortgage.

On July 7, 2009, by deed, Richard conveyed title to the property to himself

and Rosemarie, as husband and wife. Cozzarelli prepared the deed, which was

filed with the Essex County Register's Office on July 13, 2009. Over four years

later, on November 20, 2013, Cozzarelli Law LLP, a partnership controlled by

Cozzarelli, provided a loan for $525,000 to Rosemarie. The loan was secured

by a mortgage on the property (the 2013 mortgage). The 2013 mortgage, which

was prepared by Cozzarelli, was recorded in July 2014. In his deposition,

A-2620-21

6

Cozzarelli testified that, in part, the mortgage was intended to secure the

mounting legal debts and expenses Richard had incurred litigating various issues

related to his many businesses.

On September 7, 2016, Wells Fargo filed a four-count foreclosure

complaint, naming, among others, the Ceceres and Cozzarelli Law LLP as

defendants. In the complaint, Wells Fargo alleged that Richard was in default

of his obligations under the reverse mortgage as of March 14, 2016. Therefore,

Wells Fargo sought to sell the property to satisfy the debt. Among other things,

Wells Fargo also "requested that the mortgage documents be reformed . . . to

designate [Rosemarie] as a mortgagor and subject her interest . . . to the rights

of [Wells Fargo]."

On November 3, 2016, Cozzarelli, as assignee of Cozzarelli Law LLP,

filed a contesting answer asserting a first priority mortgage lien on the property

by virtue of the 2013 mortgage. Among other things, Cozzarelli alleged that his

interest was granted by Rosemarie, alone, whose interest in the property was

"superior to and not subordinate to" Wells Fargo's 2009 reverse mortgage "by

operation of the [April 7, 2009] deed" or by virtue of her interest "as tenant by

the entirety with Richard." Moreover, according to the answer, Wells Fargo

"did not condition the issuance of credit to Richard . . . on securing any mortgage

A-2620-21

7

or lien on the right, title and interest in and to the property of Rosemarie." In

mid-2017, Wells Fargo's foreclosure complaint was dismissed without

prejudice.

On April 25, 2017, Wells Fargo filed a notice of claim under the title

insurance policy issued by CATIC in connection with Rosemarie's failure to sign

the reverse mortgage and Cozzarelli's asserted priority over the reverse

mortgage on Rosemarie's interest in the property. On September 20, 2017,

CATIC filed a declaratory judgment complaint seeking a declaration that

Cozzarelli's 2013 mortgage was subordinate to Wells Fargo's reverse mortgage.

Among others, the complaint named Richard, Rosemarie, Cozzarelli, and Wells

Fargo as defendants. Cozzarelli filed a contesting answer with affirmative

defenses as well as counterclaims against CATIC and crossclaims against

CATIC and Wells Fargo. The Ceceres also filed a contesting answer with

counterclaims and crossclaims as well as a third-party complaint naming Wells

Fargo, Harkness, and others as third-party defendants.4

In 2019, CATIC moved for summary judgment, and Cozzarelli cross-

moved to dismiss CATIC's complaint. Following oral argument, on December

4

Wells Fargo was subsequently dismissed from the declaratory judgment

complaint by consent order. The reverse mortgage was transferred several

times, and eventually assigned to Champion Mortgage.

A-2620-21

8

16, 2019, Judge Paganelli issued an order and written statement of reasons

denying the motions without prejudice. In his decision, although the judge

found "disputed material issues of fact regarding the creation of the [r]everse

[m]ortgage" to withstand summary judgment, he found there was "a justiciable

issue" to justify proceeding as a declaratory judgment action based on Wells

Fargo's assertion of a claim for coverage against CATIC under the title insurance

policy. He also determined that CATIC "ha[d] standing to prosecute the[]

issues" because CATIC's "policy of insurance [was] implicated" by Wells

Fargo's claim as well as Cozzarelli's and the Ceceres' "defenses."

In October 2021, CATIC again moved for summary judgment. Wells

Fargo and Harkness also filed separate motions for summary judgment in

connection with the Ceceres' third-party complaint. About a month later,

Cozzarelli and the Ceceres filed a joint motion to dismiss CATIC's declaratory

judgment complaint. Following oral argument, Judge Paganelli issued separate

orders on December 8, 2021, granting CATIC, Wells Fargo, and Harkness

summary judgment, and denying Cozzarelli's and the Ceceres' joint motion to

dismiss CATIC's complaint. In a combined statement of reasons accompanying

the orders, the judge initially referenced and adopted his December 16, 2019,

A-2620-21

9

decision that the matter "would proceed as a declaratory judgment action" since

an action to quiet title, see R. 4:62-1, "was inapplicable."

Addressing the applicable statute of limitations, the judge rejected

Cozzarelli's and the Ceceres' contention that the action was barred by the six-

year statute of limitations for contractual claims embodied in N.J.S.A. 2A:14-1.

Instead, the judge concluded that the twenty-year statute of limitations for real

estate actions codified in N.J.S.A. 2A:14-7 applied. Judge Paganelli reasoned,

A mortgage is defined as . . . "an estate created

by a conveyance absolute in its form, but intended to

secure the performance of some act, such as the

payment of money, and the like, by the grantor or some

other person, and to become void if the act is performed

agreeably to the terms prescribed at the time of making

such conveyance." Black's Law Dictionary [(4th rev.

ed. 1968) (defining "mortgage")].

Therefore, a cause of action, regarding the

priorities of mortgages effecting the real estate, would

be governed by N.J.S.A. 2A:14-7.

The judge continued,

Moreover, the purpose of [a] reverse mortgage is

to "meet the special needs of elderly homeowners by

reducing the effect of the economic hardship caused by

the increasing costs of meeting health, housing and

subsistence needs at a time of reduced income, through

the insurance of home equity conversion mortgages to

permit the conversion of a portion of accumulated home

equity into liquid assets.["] 12 [U.S.C.] § 1715z-

20(a)(1)[.]

A-2620-21

10

Further, the federal statute defines "mortgage" to

mean " a first mortgage or first lien on real estate." 12

[U.S.C.] § 1715z-20(b)(4).

Therefore, similarly, under the federal statutes,

this matter, involving priority between the Wells Fargo

reverse mortgage and the Cozzarelli mortgage would be

an action at law for real estate.

The judge also determined that the Ceceres' and Cozzarelli's reliance on

laches to bar CATIC's cause of action was misplaced. According to the judge,

CATIC's complaint was filed a mere five months after the title insurance

company was provided notice of a priority claim on April 25, 2017. Moreover,

there was no evidence that the Ceceres or Cozzarelli gave Wells Fargo any prior

notice of the Cozzarelli mortgage despite their awareness of the existence of the

reverse mortgage. Therefore, the judge found no "inexcusable or unexplained

delay."

Further, the judge rejected the Ceceres' and Cozzarelli's claim that the

transactions were violative of N.J.S.A. 46:3-17.4 and N.J.S.A. 3B:28-3. After

analyzing the statutes, the judge pointed out that when Rosemarie deeded the

property to Richard as the sole owner, Rosemarie retained a statutory joint

possession interest in the property under N.J.S.A. 3B:28-3(a). According to the

judge, after Richard obtained the reverse mortgage and then, with Rosemarie's

A-2620-21

11

consent, conveyed the property to him and Rosemarie as tenants by the entirety

pursuant to N.J.S.A. 46:3-17.2(a), Rosemarie's lesser estate as a joint possessory

interest merged into her greater interest in the tenancy by entirety, which was

encumbered by the reverse mortgage.

The judge concluded:

Thus, based solely on [the Ceceres' and

Cozzarelli's] description of . . . Harkness'

representations, she did not make any

misrepresentation. Moreover, [the Ceceres' and

Cozzarelli's] attempt to expand . . . Harkness'

representations to include that Rosemarie could take

title without being subject to the reverse mortgage is

not factually supported by any evidence and is

contradicted by Richard's and Rosemarie's testimony as

to their understandings. Moreover, the transactions are

not violative of the applicable statutes, N.J.S.A. 46:3-

17.4 or N.J.S.A. 3B:28-3.

Thereafter, Cozzarelli moved for reconsideration and other relief.

Following oral argument, Judge Paganelli entered an order on February 18,

2022, denying the motion for reconsideration and certifying the December 8,

2021, summary judgment orders as final. In a supporting oral opinion placed on

the record the same day, the judge determined Cozzarelli failed to meet the

standard for reconsideration of the prior orders. This appeal followed.

On appeal, Cozzarelli raises the following points for our consideration:

A-2620-21

12

POINT I

ON APPEAL, THE STANDARD OF REVIEW IS DE

NOVO IN THIS CASE.

POINT II

THE TRIAL [JUDGE] ERRED BY NOT APPLYING

THE SIX[-]YEAR STATUTE OF LIMITATIONS TO

[CATIC'S] SUIT.

POINT III

THE TRIAL [JUDGE] ERRED BY ALLOWING

[CATIC] TO PURSUE A DECLARATORY

JUDGMENT ACTION TO QUIET TITLE WHERE

PRIORITY ISSUES WERE MORE

APPROPRIATELY DISPOSED OF IN THE

DISMISSED FORECLOSURE ACTION. SUCH

PROCEDURAL ANOMALY IS AN ABUSE OF THE

DECLARATORY JUDGMENT ACT.

A. An Action To Quiet Title Does Not Lie

Under The Present Facts And Couching

The Case As A Declaratory Judgment

Action Does Not Cure The Failure To State

A Cause Of Action.

B. [CATIC's] Declaratory Judgment

Action Is Flawed Because Not All

Interested Parties Have Been Joined.

C. [CATIC's] Action To Quiet Title

Amounts To Forum Shopping Which Is

Disfavored Under New Jersey Public

Policy.

A-2620-21

13

D. Dismissal Of The Foreclosure Case To

File A Declaratory Judgment Case Was

Inappropriate.

POINT IV

[CATIC'S] SUIT IS BARRED BY THE DOCTRINE

OF LACHES.

POINT V

THE APPROPRIATE BURDEN OF PROOF WAS

NOT APPLIED TO [CATIC'S] CAUSE OF ACTION

BY THE TRIAL [JUDGE], AND THEREFORE THE

JUDGMENTS ENTERED SHOULD BE REVERSED.

POINT VI

N.J.S.A. 46:3-17.4 PRECLUDES THE RELIEF

SOUGHT BY [CATIC].[5]

II.

"[W]e review the trial court's grant of summary judgment de novo under

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l

5

The Ceceres filed a brief challenging the judge's decisions but did not file a

cross-appeal. The Ceceres argue that CATIC had no standing to bring the

declaratory judgment action. However, without cross-appealing, a party may

argue points the trial court either rejected or did not address, so long as thos e

arguments are in support of the trial court's order. See Lippman v. Ethicon, Inc.,

432 N.J. Super. 378, 381 n.1 (App. Div. 2013) ("As respondents, defendants can

raise alternative arguments in support of the trial court's judgment without filing

a cross-appeal."); Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443

(App. Div. 1984) ("[W]ithout having filed a cross-appeal, a respondent can

argue any point on the appeal to sustain the trial court's judgment.") .

A-2620-21

14

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). That standard is

well-settled.

[I]f the evidence of record—the pleadings, depositions,

answers to interrogatories, and affidavits—"together

with all legitimate inferences therefrom favoring the

non-moving party, would require submission of the

issue to the trier of fact," then the trial court must deny

the motion. On the other hand, when no genuine issue

of material fact is at issue and the moving party is

entitled to a judgment as a matter of law, summary

judgment must be granted.

[Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344,

366 (2016) (citations omitted) (quoting R. 4:46-2(c)).]

Whether a genuine issue of material fact exists depends on "whether the

competent evidential materials presented, when viewed in the light most

favorable to the non-moving party in consideration of the applicable evidentiary

standard, are sufficient to permit a rational factfinder to resolve the alleged

disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 523 (1995). "If there is no genuine issue of material

fact, we must then 'decide whether the trial court correctly interpreted the law.'"

DepoLink Ct. Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super.

325, 333 (App. Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J.

Super. 486, 494 (App. Div. 2007)). "We review issues of law de novo and

A-2620-21

15

accord no deference to the trial judge's [legal] conclusions . . . ." MTK Food

Servs., Inc. v. Sirius Am. Ins. Co., 455 N.J. Super. 307, 312 (App. Div. 2018).

On the other hand, we review a trial court's decision on a motion for

reconsideration under an abuse of discretion standard, Cummings v. Bahr, 295

N.J. Super. 374, 389 (App. Div. 1996), and will not disturb a trial court's

reconsideration decision "unless it represents a clear abuse of discretion."

Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382

(App. Div. 2015) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283

(1994)). An abuse of discretion occurs "when a decision is 'made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002) (quoting Achacoso-Sanchez v. I.N.S., 779 F.2d 1260, 1265 (7th Cir.

1985)). That said, reconsideration is granted "only under very narrow

circumstances" and is only available when "'either ([1]) the [c]ourt has expressed

its decision based upon a palpably incorrect or irrational basis, or (2) it is

obvious that the [c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence.'" Fusco v. Bd. of Educ. of

Newark, 349 N.J. Super. 455, 462 (App. Div. 2002) (quoting D'Atria v. D'Atria,

A-2620-21

16

242 N.J. Super. 392, 401 (Ch. Div. 1990)); accord Cummings, 295 N.J. Super.

at 384.

Statutory interpretation involves questions of law that are well suited for

resolution on a summary judgment motion. McGovern v. Rutgers, 211 N.J. 94,

107-08 (2012). The parameters of a spouse's statutory interest in marital real

property are at the heart of this appeal. In that regard, the New Jersey Joint

Possession Statute (JPS), N.J.S.A. 3B:28-3 to -3.1, provides protection to a non-

titled spouse. Under N.J.S.A. 3B:28-3, a non-titled spouse enjoys a possessory

interest in marital real property as follows:

a. During life every married individual shall be

entitled to joint possession with his [or her] spouse of

any real property which they occupy jointly as their

principal matrimonial residence and to which neither

dower nor curtesy applies. One who acquires an estate

or interest in real property from an individual whose

spouse is entitled to joint possession thereof does so

subject to such right of possession, unless such right of

possession has been released, extinguished or

subordinated by such spouse or has been terminated by

order or judgment of a court of competent jurisdiction

or otherwise.

b. Nothing contained herein shall be construed to

prevent the release, subordination or extinguishment of

the right of joint possession by either spouse, by

premarital agreement, separation agreement or other

written instrument.

A-2620-21

17

c. The right of joint possession shall be

extinguished by the consent of both parties, by the

death of either spouse, by judgment of divorce,

separation or annulment, by other order or judgment

which extinguishes same, or by voluntary abandonment

of the principal matrimonial residence.

[N.J.S.A. 3B:28-3.]

N.J.S.A. 3B:28-3.1 delineates the circumstances in which the matrimonial

residence will be subject to an encumbrance, despite the spouse's marital

possessory interest in the property, as follows:

The right of joint possession to the principal

matrimonial residence as provided in [N.J.S.A. ]3B:28-

3 is subject to the lien of a mortgage, irrespective of the

date when the mortgage is recorded, provided:

a. The mortgage is placed upon the matrimonial

residence prior to the time that title to the residence was

acquired by the married individual; or

....

e. The right of joint possession has been

subordinated, released or extinguished by subsection b.

or c. of [N.J.S.A. ]3B:28-3.

[N.J.S.A. 3B:28-3.1.]

"Acquisition of title to the property cancel[s] any right to joint

possession." Reibman v. Myers, 451 N.J. Super. 32, 45 (App. Div. 2017). Thus,

if a non-titled spouse becomes a titled owner, the spouse no longer enjoys the

A-2620-21

18

protection of the JPS. Ibid. Such acquisition of title in fee simple may occur

through a conveyance of property by deed or other instrument. "A tenancy by

the entirety is a form of joint property ownership available only to spouses that

is created 'when property is held by a husband and wife with each becoming

seized and possessed of the entire estate.'" N.T.B. v. D.D.B., 442 N.J. Super.

205, 218 (App. Div. 2015) (quoting Capital Fin. Co. of Del. Valley, Inc. v.

Asterbadi, 389 N.J. Super. 219, 227 (Ch. Div. 2006)).

A tenancy by entirety by operation of deed or other instrument is created

when one of the following occurs:

a. A husband and wife together take title to an

interest in real property or personal property under a

written instrument designating both of their names as

husband and wife; or

....

c. An owner spouse conveys or transfers an

interest in real property or personal property to the non-

owner spouse and the owner spouse jointly under

written instrument designating both of their names as

husband and wife.

Language which states "...... and ......, his wife"

or ".......... and .........., her husband" shall be deemed to

create a tenancy by the entirety.

[N.J.S.A. 46:3-17.2.]

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19

N.J.S.A. 46:3-17.4 specifies that "[n]either spouse may sever, alienate, or

otherwise affect their interest in the tenancy by entirety during the marriage or

upon separation without the written consent of both spouses."

A marital possessory interest pursuant to the JPS is a lesser estate than a

fee ownership interest. "[W]henever a greater estate and a lesser estate coincide

in the same person . . . the lesser estate merges into the greater . . . ." Anthony

L. Petters Diner, Inc. v. Stellakis, 202 N.J. Super. 11, 19 (App. Div. 1985)

(quoting Contos v. Lipsky, 433 So. 2d 1242, 1244 (Fla. Dist. Ct. App. 1983)).

However, "[t]he presumption of merger is rebuttable and may always be

overcome if the intention that there be no merger is 'expressly declared'" or "by

'indications of a contrary intention'" that "'may appear from the particular

equities of the case.'" Id. at 18-19 (first quoting Gimbel v. Venino, 135 N.J. Eq.

574, 576 (Ch. 1944); then quoting Tennenberger v. Sozio, 101 N.J. Eq. 64, 65

(Ch. 1927); and then quoting Gimbel, 135 N.J. Eq. at 576).

The Declaratory Judgment Act (DJA), N.J.S.A. 2A:16-50 to -62, affords

a statutory right to declaratory relief to attain clarity in legal relations.

The remedial purpose of the [DJA] is "to settle and

afford relief from uncertainty and insecurity with

respect to rights, status and other legal relations."

N.J.S.A. 2A:16-51. "The Act merely broadens the

rationale of remedies long cognizable in equity, such as

A-2620-21

20

those 'to settle doubts about the construction of a

will . . . ; or . . . to quiet title, or a bill of peace.'"

[Finkel v. Twp. Comm. of Hopewell, 434 N.J. Super.

303, 317 (App. Div. 2013) (quoting N.J. Tpk. Auth. v.

Parsons, 3 N.J. 235, 239-40 (1949)).]

As such, N.J.S.A. 2A:16-52 provides:

All courts of record in this state shall, within their

respective jurisdictions, have power to declare rights,

status and other legal relations, whether or not further

relief is or could be claimed; and no action or

proceeding shall be open to objection on the ground that

a declaratory judgment is demanded.

Although N.J.S.A. 2A:16-53 enumerates certain actions determinable under the

DJA, including "any question of construction or validity arising under [an]

instrument, statute, ordinance, contract or franchise," N.J.S.A. 2A:16-52

specifies that:

The enumeration in other sections of this article

of the questions determinable and rights declarable in a

proceeding brought under the provisions of this article

does not limit or restrict the exercise of the general

powers conferred by this section in a proceeding for

declaratory relief, in which a judgment will terminate

the controversy or remove an uncertainty.

To be sure, "[t]he Act's mandate is to afford relief from uncertainty with

respect to a party's rights, including property rights." ML Plainsboro Ltd. P'ship

v. Twp. of Plainsboro, 316 N.J. Super. 200, 204 (App. Div. 1998). Still, "[t]he

A-2620-21

21

existence of another available remedy does not preclude a judgment for

declaratory relief." Vonins, Inc. v. Raff, 101 N.J. Super. 172, 177 (App. Div.

1968). As such, "[a] court should liberally construe and administer the Act to

accomplish this general purpose," ML Plainsboro Ltd. P'ship, 316 N.J. Super. at

204, and "[w]hether a court should grant declaratory relief is ordinarily a matter

resting in judicial discretion." Vonins, Inc., 101 N.J. Super. at 177.

Nonetheless, the remedy of a declaratory judgment

is circumscribed by the salutary qualification that the

jurisdiction of the courts may not be invoked in the

absence of an actual controversy. "Not only must the

plaintiff prove his [or her] tangible interest in obtaining

a judgment, but the action must be adversary in

character, that is, there must be a controversy between

the plaintiff and a defendant, subject to the court's

jurisdiction, having an interest in opposing his [or her]

claim." [Edwin Borchard, Declaratory Judgments 29

(2d ed. 1941)]; cf. New Jersey Bankers Ass'n v. Van

Riper, 1 N.J. 193 (1948). We use the phrase "salutary

qualification" because of the understandable policy of

the courts to refrain from rendering advisory opinions,

from deciding moot cases, or generally from

functioning in the abstract, and "to decide only concrete

contested issues conclusively affecting adversary

parties in interest," [Borchard, at 34-35].

[Parsons, 3 N.J. at 240.]

Stated differently, "[i]t is essential for relief under the [DJA] that there be

a finding of both justiciability and standing." Camarco v. Orange, 111 N.J.

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Super. 400, 402 (Law Div. 1970), aff’d, 116 N.J. Super. 531 (App. Div. 1971).

See Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941) ("[T]he

question in each case is whether the facts alleged, under all the circumstances,

show that there is a substantial controversy, between parties having adverse

legal interests, of sufficient immediacy and reality to warrant the issuance of a

declaratory judgment."). A justiciable controversy undoubtedly exists where a

court is asked to determine an insurer's liability.

"[S]tanding is an element of justiciability that cannot be waived or

conferred by consent." In re Adoption of Baby T, 160 N.J. 332, 341 (1999).

"Rather, it is a threshold inquiry because '[a] lack of standing by a plaintiff

precludes a court from entertaining any of the substantive issues for

determination.'" EnviroFinance Grp., LLC v. Env't Barrier Co., 440 N.J. Super.

325, 339 (App. Div. 2015) (alteration in original) (quoting In re Adoption of

Baby T, 160 N.J. at 340).

To have standing, "a party must present a sufficient stake in the outcome

of the litigation, a real adverseness with respect to the subject matter, and a

substantial likelihood that the party will suffer harm in the event of an

unfavorable decision." In re Camden Cnty., 170 N.J. 439, 449 (2002).

"Generally, the threshold to prove a party's standing is 'fairly low,'"

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EnviroFinance Grp., LLC, 440 N.J. Super. at 340 (quoting Reaves v. Egg Harbor

Twp., 277 N.J. Super. 360, 366 (Ch. Div. 1994)), and "[a] financial interest in

the outcome ordinarily is sufficient to confer standing." Strulowitz v. Provident

Life & Cas. Ins. Co., 357 N.J. Super. 454, 459 (App. Div. 2003) (citing In re

Camden Cnty., 170 N.J. at 448).

The DJA "does not contain a statute of limitations." Ballantyne House

Assocs. v. City of Newark, 269 N.J. Super. 322, 330 (App. Div. 1993).

However, the applicable limitation period is determined by the nature of the

underlying action. See id. at 330-31. As such, the period of limitation for a real

estate action is governed by N.J.S.A. 2A:14-7, which provides that "[e]very

action at law for real estate shall be commenced within [twenty] years next after

the right or title thereto, or cause of such action shall have accrued." On the

other hand, the limitations period for a contractual claim is governed by

N.J.S.A. 2A:14-1(a), which provides that any action "for recovery upon a

contractual claim or liability . . . shall be commenced within six years next after

the cause of any such action shall have accrued."

"[C]auses of action brought at law are governed in the first instance by

statutes of limitations that have been fixed by the Legislature to create defined

and regularly applicable periods against which to determine timeliness. Laches,

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on the other hand, remains an equitable doctrine, utilized to achieve fairness."

Fox v. Millman, 210 N.J. 401, 422 (2012). "The time constraints for the

application of laches 'are not fixed but are characteristically flexible.'" Knorr v.

Smeal, 178 N.J. 169, 181 (2003) (quoting Lavin v. Bd. of Educ., 90 N.J. 145,

151 (1982)). Laches bars "the prosecution of an equitable claim if the suitor has

inexplicably, inexcusably and unreasonably delayed pursuing a claim to the

prejudice of another party." In re Est. of Thomas, 431 N.J. Super. 22, 30 (App.

Div. 2013) (citing Knorr, 178 N.J. at 180-81). "[W]e often look for an analogous

statute of limitations to determine whether there has been an inexcusable delay."

Ibid.

For laches to be enforced, the delaying party must have had "sufficient

opportunity to assert the right in the proper forum and the prejudiced party acted

in good faith believing that the right had been abandoned." Knorr, 178 N.J. at

181. "The key factors to be considered in deciding whether to apply the doctrine

are the length of the delay, the reasons for the delay, and the 'changing

conditions of either or both parties during the delay.'" Ibid. (quoting Lavin, 90

N.J. at 152). "[W]hether laches should be applied depends upon the facts of the

particular case and is a matter within the sound discretion of the trial court."

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Mancini v. Twp. of Teaneck, 179 N.J. 425, 436 (2012) (quoting Garrett v. Gen.

Motors Corp., 844 F.2d 559, 562 (8th Cir. 1988)).

III.

Applying these principles, we reject Cozzarelli's contentions and affirm

substantially for the reasons stated by Judge Paganelli in his December 8, 2021,

and February 18, 2022, decisions. We agree with the judge that Rosemarie

retained a possessory interest in the property under the JPS when she deeded the

property to Richard as the sole owner. However, the right of joint possession

may be extinguished pursuant to a "written instrument." N.J.S.A. 3B:28 -3(b).

When Richard conveyed the property by deed to himself and Rosemarie as

tenants by the entirety, Rosemarie's possessory interest merged into her greater

fee ownership interest. There was no declared or implied intention merger

would not occur. On the contrary, it is undisputed that Rosemarie was aware of

the circumstances and wanted to be on the deed to regain title to the property.

With the deed transfer giving Rosemarie title to the property in fee simple and

extinguishing Rosemarie's right of joint possession, the property became subject

to the reverse mortgage lien placed on the property prior to the transfer.

Contrary to Cozzarelli's assertion, Rosemarie had no unencumbered individual

interest to which his 2013 mortgage attached.

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Further, we discern no abuse of discretion in the judge's decision to

proceed as a declaratory judgment action, rather than a quiet title action.6 The

declaration of the priority of the mortgage liens presented a justiciable

controversy in determining CATIC's liability under the title insurance policy ,

and CATIC clearly had standing as the insurer. Contrary to Cozzarelli's claim,

the existence of alternative remedies, such as a foreclosure action, does not bar

a declaratory judgment action. Equally unavailing is Cozzarelli's contention that

the declaratory judgment action was improperly decided because CATIC failed

to join all the interested parties named in the now-dismissed foreclosure action.

Under the DJA, "[w]hen declaratory relief is sought, all persons having or

claiming any interest which would be affected by the declaration shall be made

parties to the proceeding." N.J.S.A. 2A:16-56. Because CATIC sought to

ascertain lien priority between its insured's reverse mortgage and Cozzarelli's

6

We agree with the judge that a quiet title action was not sustainable because

CATIC had neither title nor possession of the property, prerequisites for such an

action. See N.J.S.A. 2A:62-1; R. 4:62-1. As the judge ruled in denying

Cozzarelli's motion for reconsideration, Cozzarelli's contention that CATIC's

claim was actually an action in quia timet was equally untenable. See Phoenix

Pinelands Corp. v. Davidoff, 467 N.J. Super. 532, 614-15 (App. Div. 2021)

(explaining that "[a] quia timet proceeding is broader in scope than a statutory

quiet title action because possession . . . 'is not an essential'" but "the

claimant . . . 'must show a title to the relief free from all reasonable doubt'" (first

quoting Est. of Gilbert Smith v. Cohen, 123 N.J. Eq. 419, 424 (E. & A. 1938);

and then quoting Shotwell v. Shotwell, 24 N.J. Eq. 378, 387 (Ch. 1874))).

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2013 mortgage, the named defendants in the now-dismissed foreclosure action

were not germane to the declaratory judgment action because the resolution of

priority between Wells Fargo's reverse mortgage and Cozzarelli's 2013

mortgage would not affect the rights of other junior lien holders.

We also agree that the action was governed by the twenty-year statute of

limitations for real estate actions, pursuant to N.J.S.A. 2A:14-7, rather than the

six-year limitations period for contractual claims under N.J.S.A. 2A:14-1(a),

because the underlying action related to the priority of mortgage liens attached

to real estate. Although both the title insurance policy and the reverse mortgage

are contracts, as Cozzarelli points out, the underlying dispute relates to the

priority of liens attached to the property. Additionally, we reject Cozzarelli's

contention that the action was barred by laches because CATIC did not delay in

seeking relief.

To the extent we have not addressed a particular argument, it is because

either our disposition makes it unnecessary or the argument was without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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