                                NOT FOR PUBLICATION WITHOUT THE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-5689-16T1

U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE
FOR RESIDENTIAL FUNDING
MORTGAGE SECURITIES, I INC.,
MORTGAGE PASS-THROUGH
CERTIFICATES, SERIES 2007-S1,

          Plaintiff-Respondent,

v.

ADELE M. GALLAGHER,
MR. GALLAGHER, UNKNOWN
SPOUSE OF ADELE M. GALLAGHER,
 MRS. GALLAGHER, UNKNOWN
SPOUSE OF JOHN P.GALLAGHER,
MORTGAGE ELECTRONIC
 REGISTRATION SYSTEMS, INC., as
nominee for GMAC MORTGAGE, LLC,
and STATE OF NEW JERSEY,

          Defendants,

and

JOHN P. GALLAGHER,

     Defendant-Appellant.
_____________________________
            Argued March 18, 2019 – Decided July 22, 2019

            Before Judges Gooden Brown and Rose.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Gloucester County, Docket No. F-
            017050-15.

            AllynMarie Smedley argued the cause for appellant
            (Smedley & Lis, LLC, attorneys; AllynMarie Smedley,
            on the briefs).

            Barry J. Muller argued the cause for respondent (Fox
            Rothschild, LLP, attorneys; Barry J. Muller, on the
            brief).

PER CURIAM

      John and Adele Gallagher were married for thirty years. John1 worked in

senior management positions since 1990. His job involved extensive travel,

requiring him to be away from home from Monday to Friday each week. As a

result, Adele handled the family's finances.   In 1996, the couple purchased

property in Clarksboro (the property) and built a home where they resided

together until 2014. After the home was built, they converted a construction

loan to a mortgage loan, secured by the property. Over the ensuing years, they

refinanced the mortgage, obtaining four separate mortgage loans encumbering



1
  To avoid confusion, we use their first names throughout the balance of the
opinion. We intend no disrespect by this informality.
                                                                      A-5689-16T1
                                      2
the property. In 2013, Adele stopped making payments on the then outstanding

mortgage to plaintiff, U.S. Bank National Association as Trustee for Residential

Funding Mortgage Securities, I Inc. (RFMSI), Mortgage Pass-Through

Certificates, Series 2007-S1 (U.S. Bank). As a result, in 2015, U.S. Bank filed

a foreclosure complaint against the Gallaghers.

      In 2014, John allegedly discovered for the first time that Adele had

obtained the refinance mortgages without his knowledge or consent. He claimed

she hid their existence from him by forging his signature and creating two fake

power of attorney documents bearing his forged signature.       Following this

discovery, John filed for divorce. A final judgment of divorce (JOD) was

entered on June 17, 2016, incorporating a marital settlement agreement (MSA)

in which John was granted Adele's interest in the property, pending the outcome

of the foreclosure action. John filed a contesting answer to the foreclosure

complaint, including affirmative defenses, counter-claims, and cross-claims,

essentially alleging that the mortgage was obtained through fraud and therefore

unenforceable. On March 23, 2017, the trial court granted U.S. Bank's motion

for summary judgment and struck John's pleadings. On July 17, 2017, final

judgment of foreclosure was entered in U.S. Bank's favor.




                                                                        A-5689-16T1
                                       3
      John now appeals from the July 17, 2017 final judgment, raising the

following points for our consideration:

            POINT I[:] THE TRIAL COURT ERRED IN
            FINDING THERE WAS NO GENUINE ISSUE OF
            MATERIAL FACT IN ENTERING SUMMARY
            JUDGMENT AGAINST . . . JOHN . . . , THIS ERROR
            WARRANTS THE REVERSAL OF SUMMARY
            JUDGMENT AND THE FINAL JUDGMENT OF
            FORECLOSURE BEING VACATED. [2]

                  A. THE TRIAL COURT'S FAILURE TO
                  CONSIDER     THE    ALLEGATIONS
                  RAISED IN THE PARTIES' DIVORCE IN
                  FINDING THERE WAS NO GENUINE
                  ISSUE OF MATERIAL FACT AS TO
                  THE VALIDITY OF THE POWER OF
                  ATTORNEY, THE MORTGAGE AND
                  LOAN DOCUMENTS[,] OR [U.S.]
                  BANK'S MORTGAGE AS TO . . .
                  JOHN . . . WAS REVERSIBLE ERROR
                  AND AN ABUSE OF DISCRETION
                  (NOT ARGUED BELOW).

                  B. WHETHER OR NOT . . . JOHN . . .
                  RATIFIED [U.S.] BANK'S MORTGAGE
                  IS AN ISSUE OF GENUINE MATERIAL

2
   John's notice of appeal does not include the March 23, 2017 summary
judgment order. Ordinarily, "it is only the judgments or orders . . . designated
in the notice of appeal which are subject to the appeal process and review."
Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R. 2:5-1 (2019).
Nonetheless, because the July 17, 2017 final judgment was premised on the
summary judgment order, "we will address the propriety of the earlier order,
particularly since [plaintiff] has not argued against our ruling on its validity."
W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 459 (App.
Div. 2008).
                                                                          A-5689-16T1
                                          4
     FACT; THE TRIAL COURT'S FAILURE
     TO FIND THIS FACT IN FAVOR OF
     [JOHN]  WAS    AN   ABUSE    OF
     DISCRETION.

POINT II[:] THE     TRIAL           COURT'S
DETERMINATION THAT THE ENTRY OF
SUMMARY JUDGMENT IN FAVOR OF [U.S.]
BANK WAS AUTHORIZED BY MARIONI V. ROXY
GARMENTS        DELIVERY         [COMPANY,
INCORPORATED], 417 N.J. SUPER. 269 (APP. DIV.
2010)[,] WAS NOT SUPPORTED BY THE
FINDINGS OF FACT AND CONCLUSIONS OF
LAW MADE ON THE RECORD AND THEREFORE
WAS AN ABUSE OF DISCRETION (NOT ARGUED
BELOW).

POINT III[:] THE TRIAL COURT'S FINDING
OF AN EQUITABLE MORTGAGE IN FAVOR OF
PLAINTIFF WAS PLAIN ERROR AND AN ABUSE
OF DISCRETION (NOT ARGUED BELOW).

     A. THE TRIAL COURT COMMITTED
     PLAIN ERROR BY FAILING TO MAKE
     FINDINGS OF FACT AS TO THE EIGHT
     FACTORS TO BE CONSIDERED IN
     FINDING AN EQUITABLE MORTGAGE
     AS SET FORTH IN ZAMAN V. FELTON,
     219 N.J. 199 (2014) (NOT ARGUED
     BELOW).

     B. THE TRIAL COURT ERRED IN
     GRANTING     AN      EQUITABLE
     MORTGAGE AS THE EVIDENCE
     PRESENTED     AT      SUMMARY
     JUDGMENT WAS NOT SUFFICIENT
     TO SUPPORT SUCH A FINDING.


                                                A-5689-16T1
                     5
                  C. THE TRIAL COURT'S DECISION TO
                  AWARD AN EQUITABLE MORTGAGE
                  AND GRANT [U.S.] BANK'S MOTION
                  FOR SUMMARY JUDGMENT WAS
                  REVERSIBLE ERROR AND AN ABUSE
                  OF DISCRETION DUE TO THE COURT
                  ASSUMING FACTS NOT IN EVIDENCE
                  BY    CONCLUDING     THAT    THE
                  PROCEEDS OF THE MORTGAGE AT
                  ISSUE WERE USED FOR THE
                  GALLAGHER FAMILY EXPENSES
                  (NOT ARGUED BELOW).

                  D. THE TRIAL COURT'S FINDINGS
                  REGARDING THE BLUE RIBBON
                  PANEL RECOMMENDATION AND
                  THE RESULTANT [MSA] ARE NOT
                  SUPPORTED BY THE RECORD [AND]
                  WERE AN ABUSE OF DISCRETION IN
                  AWARDING           [U.S.] BANK AN
                  EQUITABLE MORTGAGE AGAINST
                  . . . JOHN . . . .

                  E. THE TRIAL COURT'S FINDING
                  THAT THERE WAS ONLY ONE
                  MORTGAGE FORGED BY ADELE . . .
                  DURING HER MARRIAGE TO JOHN
                  . . . IS NOT SUPPORTED BY THE
                  RECORD; THE [TRIAL] COURT'S
                  RELIANCE ON THE USE OF THE
                  MORTGAGE PROCEEDS IN ITS
                  FINDING    OF  AN   EQUITABLE
                  MORTGAGE WAS PLAIN ERROR (NOT
                  ARGUED BELOW).

For the reasons that follow, we reverse.



                                                      A-5689-16T1
                                       6
      We confine our review to the motion record before the Chancery Division

judge, see Ji v. Palmer, 333 N.J. Super. 451, 463-64 (App. Div. 2000), viewed

in the light most favorable to the non-moving party. Angland v. Mountain Creek

Resort, Inc., 213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co.,

142 N.J. 520, 523 (1995)).

      The Gallaghers were married on October 18, 1986. Three children were

born of the marriage. Since 1990, John worked in senior management positions

for Computer Sciences Corporation (CSC), a government contractor, where he

earned an annual salary of approximately $400,000. His positions required him

to be away from home during the week, leaving on Monday mornings and

returning on Friday nights each week. As a result, Adele was responsible for

running the household and controlled the family's finances, which included

paying all bills. Due to this arrangement, John did not "check[] his financial

status for [twenty] years."

      On July 2, 1998, the Gallaghers executed a twenty-year note in the

principal amount of $195,000. To secure the note, they obtained a mortgage

(the first mortgage) encumbering the property, where they built the marital

residence and resided together until 2014.      On September 25, 1998, the

Gallaghers executed a second note in the amount of $52,000. To secure the note,


                                                                       A-5689-16T1
                                      7
they obtained another mortgage (the second mortgage) encumbering the

property. On February 8, 2003, the Gallaghers executed a third note in the

amount of $211,000. To secure the note, they obtained another mortgage (the

third mortgage) encumbering the property. The third mortgage satisfied both

the first and second mortgages.

       On February 2, 2004, John purportedly executed a power of attorney

granting Adele authority "to act as [his] [a]gent" to "execute any and all

documents, including . . . [m]ortgage or loan documents . . . in connection with

the refinance of [the property], including the right to accept any proceeds, . . .

deposit[,] or withdraw any proceeds." Michael Magee, Esq., signed the power

of attorney as a witness, certifying that John "personally came before [him] and

acknowledged under oath," that John "personally signed [the] document[.]" 3

With the power of attorney, on February 17, 2004, Adele executed a twenty-year

note and mortgage (the fourth mortgage) in the amount of $391,894.48 on behalf

of John and herself. In addition to satisfying the third mortgage, the fourth

mortgage was used to satisfy $162,271.80 in credit card debt and yielded

$15,868.48 in cash proceeds.




3
    Magee also notarized the third mortgage, which John later disputed signing.
                                                                          A-5689-16T1
                                        8
      On November 21, 2006, John purportedly executed another power of

attorney, granting Adele authority "to act as [his] [a]gent" to "execute any and

all documents, including . . . [m]ortgage or loan documents . . . in connection

with the sale of [the property], . . . including the right to accept any

proceeds, . . . deposit[,] or withdraw any proceeds in connection with . . . [the]

sale." The power of attorney was again witnessed by Magee, who certified that

John "personally came before [him] and acknowledged under oath," that he

"personally signed [the] document[.]" With the power of attorney, on November

22, 2006, Adele executed a note and mortgage (the fifth mortgage) in the amount

of $456,000, on behalf of John and herself, to Mortgage Electronic Registration

Systems, Inc. as nominee for GMAC Mortgage, LLC (GMAC).                 The fifth

mortgage satisfied the fourth mortgage, $70,474 in credit card debt, and yielded

$5066.26 in cash. Additionally, on that same date, the Gallaghers obtained a

$57,000 home equity line of credit (HELOC) from GMAC, which was used to

satisfy $29,504 in credit card debt as well as provide cash proceeds in the

amount of $27,386. The fifth mortgage (the subject mortgage) was recorded on

December 6, 2006.




                                                                          A-5689-16T1
                                        9
      On November 12, 2012, the subject mortgage was assigned to plaintiff,

which assignment was recorded on November 15, 2012. 4 On July 1, 2013, Adele

stopped making payments on the subject mortgage and the HELOC. Plaintiff

sent the Gallaghers a Notice of Intention to Foreclose (NOI) at the property

address on February 22, 2014. When they failed to cure the default, plaintiff

filed a foreclosure complaint against the Gallaghers on May 8, 2015. The

foreclosure litigation led to the unraveling of the alleged fraudulent scheme

Adele had perpetrated against John over the course of the marriage.

      In his deposition, John testified he first became aware of the alleged

scheme in April 2014, when his brother notified him that he had several

mortgages and powers of attorney bearing his signature. John's brother had been

looking into purchasing real estate with John and discovered the records using

a land records database. Within a week of the discovery, John filed a revocation

of the powers of attorney with the Gloucester County Clerk's Office. He also

contacted his bank and discovered that the couple's investment account, where

he believed he had accrued over $1.6 million in savings from earnings, bonuses,




4
  Howard Handville, a duly authorized senior loan analyst acting on plaintiff's
behalf, later certified that "[p]laintiff ha[d] been in possession of the original
[n]ote since on or before January 12, 2007."
                                                                          A-5689-16T1
                                       10
and expense reimbursements, was empty. After confronting Adele, John packed

a bag, left the marital residence, and filed for divorce on October 9, 2014.

       Beginning with the second mortgage and all subsequent mortgages as well

as the HELOC, John claimed he was unaware of the mortgage loans, did not

apply for them, did not sign any mortgage loan documents, and believed Adele

forged his signature. John also denied signing the powers of attorney, denied

authorizing Adele to sign mortgage loan documents on his behalf, and denied

knowing Michael Magee. Further, John denied obtaining any proceeds from the

loans or even being aware of their existence.        According to John, Adele

concocted an elaborate scheme to hide the existence of the loans by presenting

him with fake tax returns, fake mortgage interest statements, and fake mortgage

statements.   She also solicited individuals to pose as mortgage or bank

representatives to address any discrepancy in the records. Subsequently, she

would destroy the fake statements and file accurate returns with the Internal

Revenue Service (IRS).      In addition, when the couple first purchased the

property, they had set up a post office box while their home was under

construction. After the home was built, Adele insisted on keeping the post office

box.   In so doing, she was able to conceal the mortgage statements, bank




                                                                          A-5689-16T1
                                      11
statements, and credit card statements for cards he was unaware of, resulting in

him only seeing what she "wanted [him] to see."

      During his deposition, John was confronted with an August 7, 2009

Equifax report addressed to him at the property address. The report responded

to a request to reinvestigate a GMAC mortgage appearing on John's credit

report. John testified that he had no recollection of submitting the request and

added that there was no credit report run for him for work around that time.

Further, in 2011, when Adele's sister told John he had a $4000 mortgage

payment during an argument with her sister, John "laughed" and informed her

he did not have a $4000 mortgage payment. Instead, consistent with their first

mortgage, John believed their mortgage payment was about one-half of that

amount.

      During Adele's deposition, she invoked her Fifth Amendment right against

self-incrimination whenever she was questioned about fabricating documents or

forging John's signature on mortgage or power of attorney documents.

However, she admitted she never informed John about any of the refinance

mortgages on the property. She testified that she believed John had authorized

her to act on his behalf based on him expressly authorizing her to take care of

the family's finances. As a result, she posited that if she had signed John's name


                                                                          A-5689-16T1
                                       12
on any of the mortgage or power of attorney documents, she was authorized by

John to do so.

      Adele explained that John "hoarded" money and refused to provide her

with enough money to handle the household expenses. She claimed John was

physically and verbally abusive to her whenever they discussed finances. To

avoid the abuse, she relied on credit cards to compensate for the financial

shortfall and used the money generated by the mortgage refinance loans to pay

off the credit card debt and for other family-related expenses, including college

expenses for the children and the upkeep of the marital residence. She denied

putting the money in any type of secret slush fund and denied having any type

of addiction problem. According to Adele, she concealed her actions from John

out of fear for her safety if he discovered the true state of their finances.

      Both John and Adele filed contesting answers to the foreclosure complaint

on July 8 and June 23, 2015, respectively. John's pleadings included twenty-six

affirmative defenses, counter-claims against plaintiff, and cross-claims against




                                                                                A-5689-16T1
                                        13
Adele 5 and Magee, 6 alleging, among other things, that the subject mortgage was

obtained through fraud. On March 4, 2016, the court granted plaintiff summary

judgment against Adele.

      On June 17, 2016, a final divorce judgment was entered. In an effort to

settle the matter without trial, the parties had agreed to forego submitting their

dispute to a matrimonial early settlement panel (MESP) and instead submitted

the matter to a blue ribbon panel of family law experts. After the parties

provided written submissions, a recommendation was issued by the panel which

provided the basis for the MSA that was later incorporated into the JOD. In the

MSA, John was granted exclusive possession of the property, pending the

outcome of the foreclosure action, and Adele was required to vacate the

residence.

      On July 22, 2016, on plaintiff's motion, the court ordered Adele to submit

to the court "for in camera inspection" "all documents submitted to the [b]lue

[r]ibbon [p]anel." Following the review, the court allowed plaintiff to view



5
    John's October 9, 2014 divorce complaint against Adele alleged fraud,
fraudulent inducement, dissipation of assets, and unjust enrichment.
6
   On October 6, 2015, John also filed a five-count complaint against Magee
alleging legal malpractice, negligence, negligent misrepresentation, civil
conspiracy, and fraud.
                                                                          A-5689-16T1
                                       14
designated documents, reasoning that the documents were relevant to "John's

knowledge and ratification of the mortgage; Adele's actual or implied

authorization to enter into the mortgage transaction on behalf of John; the use

of and access to mortgage proceeds by John; and the use of mortgage proceeds

to satisfy legitimate joint marital debts."   The court further directed that

"[p]laintiff may not use the arguments made by counsel in their submissions to

the [b]lue [r]ibbon [p]anel as evidence or argument in this case; however,

plaintiff may make any appropriate arguments supported by evidence whether

or not made in the divorce action."

      One of the documents generated in the divorce action was a report by

Michael Saccomanno, a forensic accountant hired by John to trace Adele's use

of the money. Saccomanno found that from "July 1, 2006[,] through April 18,

2014[,]" Adele "had access to" approximately $300,395 annually, and based on

her Case Information Statement (CIS), reported "lifestyle expenses" of $19,452

monthly, or $233,424 annually. Thus, according to Saccomanno, assuming

Adele's current CIS expenses were similar to prior years, Adele "had access to

and utilized significantly more funds than what was reasonably required for the

family lifestyle expenses."       Saccomanno calculated that Adele           had

approximately "$66,971 annually" in excess funds that were misappropriated.


                                                                        A-5689-16T1
                                      15
Additionally, Saccomanno determined that in addition to the annual $66,971 in

excess funds, Adele "incurred debt totaling $679,041" without John's "signature

or consent."

        On January 19, 2017, plaintiff moved for summary judgment against John.

During oral argument conducted on March 23, 2017, plaintiff argued that an

equitable mortgage existed because John had "every opportunity to prevent this

by simply monitoring what his wife was doing for the past [twenty] years[.]"

Plaintiff further argued that John "already received reimbursement for [the]

mortgage" through the divorce judgment that gave John "a credit" for what

Adele would "otherwise . . . have been entitled to in equitable distribution."

Plaintiff also asserted there was no doubt that John "expressly authorized his

wife to maintain all of the family's finances[,]" and he was "bound" by that grant

of authority in relation to "third parties," even if Adele "exceeded" its scope.

        Additionally, according to plaintiff, John ratified the mortgage because he

had "at least inquiry notice of the mortgage" from the Equifax reinvestigation

report in 2009, and his sister-in-law's comment about his mortgage payment in

2011.    Further, he had actual notice in April 2014, but took no action to

"disavow" the mortgage until a year later when he filed his pleadings in the

foreclosure action. Plaintiff continued that at the very least, it was "entitled to


                                                                           A-5689-16T1
                                        16
an equitable lien" for the portion of the mortgage that "was used to pay off the

original mortgage" on the property. Moreover, according to plaintiff, in the

absence of any evidence that the "other debts" extinguished by the proceeds of

the mortgage "were used for anything other than family expenses[,]" "it would

be unjust enrichment for [John] to get th[e] house free of the mortgage with all

of those debts and obligations paid" as well as "money . . . from his wife in the

divorce action."

      John opposed the summary judgment motion, asserting "there [were]

triable issues of fact in th[e] case[.]" He urged the court to strike Adele's

deposition testimony as "completely self-serving," and not to rely on the blue

ribbon panel's recommendations, but to look instead to the actual terms of the

MSA. Further, he disputed granting Adele authority to "encumber" the property

and asserted that "the effect of a forgery is that the forged document is null and

void." Thus, according to John, there was no "valid lien on the property" and

"the mortgage itself [was] void."

      Following oral argument, the court granted plaintiff's motion. In an oral

decision, initially, the court recited the standard for summary judgment and the

requirements for a judgment of foreclosure. Relying on Judson v. Peoples Bank

& Trust Company of Westfield, 17 N.J. 67 (1954), and Brill, 142 N.J. at 529,


                                                                          A-5689-16T1
                                       17
the court noted that while "the non-moving party[] [was] entitled to have all

facts and inferences viewed" in its favor, "[t]he deference granted to the non -

movant [did] not . . . mean that it [could] defeat a [m]otion for [s]ummary

[j]udgment merely by pointing to a disputed fact of an insubstantial nature."

Further, citing Central Penn National Bank v. Stonebridge Limited, 185 N.J.

Super. 289, 302 (Ch. Div. 1982), the court explained that "to obtain a judgment

in a foreclosure action, the mortgagee must establish . . . that the mortgage and

loan documents are valid, . . . that the mortgage loan [was] in default, and . . .

that the mortgagee has a contractual right to foreclose on the property."

      Turning to the facts, the court recited the undisputed facts as follows:

            Adele . . . and John . . . were married on October 18,
            1986. The Gallaghers have three children . . . .

                  From July 1998 until April 2014, the Gallaghers
            resided . . . in Clarksboro. That is the marital property.
            In July 1998, the Gallaghers had a [twenty]-year
            mortgage on the property in the principal amount of
            $19[5],000 with a monthly payment of approximately
            $[2400].

                  . . . [John] has been employed by [CSC] since
            1990. [CSC] is a Fortune 500 American multi-national
            corporation that provides information technology
            services and professional services.            It[] [is]
            headquartered in Falls Church, Virginia. It has 56,000
            employees in over [sixty] countries. Its clients include
            [c]ommercial [e]nterprises, the U.S. Federal


                                                                            A-5689-16T1
                                       18
Government, as well as [s]tate, [l]ocal[,] and non-U.S.
[g]overnment [a]gencies.

      During various time periods[,] [John] has held
senior management positions with CSC in its North
American Public Sector. The North American Public
Sector is one of the nation's largest information
technology and outsourcing solution providers to the
[f]ederal [g]overnment.

      ....

      [John] has been described as an intelligent man
with an important position at CSC which is pretty high
up the chain. In connection with this and throughout
his employment[,] [John] obtained necessary security
clearances to work on government projects. All such
security clearances require a credit check.

      [John] earns approximately $400,000 per year.
[John's] typical work schedule required him to depart
from his home in Clarksboro on Monday morning and
not return until Friday evening.          Thus, for
approximately [twenty] years[,] Adele paid all of the
family bills and maintained and controlled all of the
family finances.

      ....

       The Gallaghers ceased making monthly
payments on the mortgage in July 2013. On October 9,
2014[,] after [twenty-eight] years of marriage, [John]
filed for divorce against Adele and alleged the financial
fraud.

      On May 8, 2015, U.S. Bank filed this action to
foreclose the mortgage. [John] did not notify the [b]ank
of Adele's alleged fraud and took no formal action to

                                                            A-5689-16T1
                          19
      repudiate the mortgage until July 8, 2015[,] when he
      filed his counter[-]claim in the foreclosure action.
      Adele does not dispute the validity of the mortgage and
      [s]ummary [j]udgment has been entered against her.

            The Gallaghers settled their [divorce] action by
      [j]udgment entered June 17, 2016. . . . As part of the
      [j]udgment, the Gallaghers agreed to repay all the credit
      card debt and loans incurred by Adele except for the
      mortgage. As of this date, the Gallaghers remain joint
      owners of the mortgage. Adele no longer resides at the
      property. [John] resides at the property.

Addressing the disputed facts, the court stated:

             [John] disputes [when] he became aware of . . .
      the disparity in the mortgage. He believes that he owed
      about [$]56,000. He believed that the mortgage was
      [$2400] a month. At some point there was an argument
      between Adele and her sister where the sister said that
      it was [$4000] a month.

            In any event, there is a credit report from Equifax
      directed to John P. Gallagher at the property address
      and dated August 7, 2009[,] which indicates that it[] [is]
      a reinvestigation at the request of [John].

             Now, I do[] [not] know what inference to draw
      from that. It does[] [not] make sense to me that [Adele]
      would be checking on her credit. But I can[not] be sure
      that if it came to the property address that [John] would
      have ever seen it. So I[] [a]m not going to rely on that
      as a fact.

            I[] [a]m not going to consider Adele Gallagher's
      testimony, not just because she[] [has] exercised her
      Fifth Amendment right to not answer certain questions,
      but more because [of] . . . her lack of transparency . . .

                                                                   A-5689-16T1
                                 20
            or actual fraud, which brings us all here today. So it
            would not be appropriate to consider her statements
            truthful in deciding a [m]otion for [s]ummary
            [j]udgment.

      The court acknowledged that "[t]his [was] a most unusual case." The

court explained:

            I do[] [not] think I [ha]ve seen a mortgage signed by a
            [p]ower of [a]ttorney in all my time doing foreclosures.
            Nor have I seen a situation where, as in this case, a . . .
            husband is making substantial money, $400,000 a year,
            but his work duties are such that he leaves home
            Monday through Friday. So he[] [i]s only home on
            weekends. And it[] [i]s this schedule that he alleges
            allowed his wife the opportunity to drain down all the
            assets and acquire so much debt.

                   Wife, on the other hand, contends that she had to
            do what she had to do in order to keep the parties'
            lifestyle.

      The court continued:

            The very essence of this action is . . . the
            dysfunctionality of this marriage.        The fact that
            somebody for [twenty] years could [travel for] . . .
            work Monday through Friday. And I do[] [not] know
            what he does on the nights when he[] [is] out, but that
            he did[] [not] think to occasionally check his bank
            account, that he did[] [not] think to occasionally look at
            his [m]ortgage [s]tatement is unusual. But again, the
            whole facts of this case are unusual.

      Finding that "both parties signed the original mortgage," which was

satisfied with the proceeds of a mortgage obtained by Adele "using the improper

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[p]ower of [a]ttorney," 7 the court concluded that "both the mortgage company

and the husband were the victims of [Adele's] . . . lack of transparency[.]"

However, the court had "difficult[y] . . . understand[ing]" "how you stay married

for [twenty-eight] years and kind of . . . have a bag over your head." Further,

the court pointed out that in addition to satisfying the original mortgage, the

proceeds of the subject mortgage "paid off credit card debts and some [$5000]–

plus went into the parties' joint checking account." Additionally, according to

the court, "compar[ing] the language of the [JOD] . . . with the language of the

[b]lue [r]ibbon [p]anel," it "appear[ed] . . . that after a [twenty-eight]-year

marriage[,] the wife essentially received nothing in equitable distribution and

owed her husband approximately $97,500, which was then used to offset her

interest in his pension." 8


7
  This determination by the court ignores the chain of mortgage refinanc e loans
executed over the years.
8
  In that regard, the court recounted at length the provisions of the MSA as well
as the recommendations of the blue ribbon panel, which noted that "[o]n a
[twenty-eight-year] marriage with three children[, Adele] may have an alimony
case." However, under the MSA, Adele "waive[d] alimony." Further, based on
John's allegation that the subject mortgage was "obtained without his knowledge
or consent[,]" as well as his "post-[c]omplaint efforts" in contesting the
foreclosure, the MSA provided that if he was "successful" in "sav[ing] the
property from foreclosure, it shall remain his sole property and [Adele] shall
receive nothing by way of equity payment or credit for [John's] retention of this
asset."
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      Thus, the court determined:

            While objectively it[] [is] almost impossible to believe
            that this man would not have checked his financial
            status for [twenty] years. It[] [is] what happened. And
            the day that he found out that instead of having a house
            that[] [is] almost paid off, he[] [has] . . . a house he
            owes $400,000 on. And instead of having . . . resources
            for retirement, he[] [has] . . . next to nothing.

                 And that[] [is] what happen[ed] here. But by the
            same token, it[] [is] his wife that did this. It[] [is] not
            the mortgage company that did this. And at some level
            one would think he had a better sense of the value of
            money. . . .

                    So the best . . . way that I think of this is that these
            are basically two parties that are affected by the wife's
            conduct. . . . [H]owever, [John was] unable to
            demonstrate gambling, drugs, alcohol, [or] anything but
            lifestyle that this money was spent on. Lots and lots of
            credit cards. Lots of cars. Lots of college. And now
            based on the marital agreement, it seems to be that
            while [John will] never be made whole in the sense that
            . . . his whole psyche in life has been affected, his wife
            has paid him back for her wrongdoing by virtue of the
            . . . no alimony agreement, [and] no equitable
            distribution. She gets nothing from the marriage and
            she owes him money.

      Relying on Marioni 9 for authority, the court concluded:


9
    In Marioni, we reversed a Chancery Division judge's fashioning of an
equitable remedy after a five-day trial because the "judge's final adjustment
required plaintiff to pay an entrepreneurial profit inconsistent with the
interloper's position as a constructive trustee." 417 N.J. Super. at 272. However,


                                                                               A-5689-16T1
                                         23
                   [I]t does seem to me that . . . plaintiff is entitled
            to [s]ummary [j]udgment, and I do grant it. I do rely on
            the broad equitable powers of the [c]ourt to address
            particular circumstances of a given case . . . .

                  . . . [There is] no question the property is
            encumbered to the extent Adele['s] . . . legal interest in
            the property was subject to the mortgage that she
            signed. And I do find that [John's] interest is likewise
            subordinate to that of the mortgage holder.

After the court granted plaintiff summary judgment and struck John's pleadings,

plaintiff moved for final judgment of foreclosure, which was granted on July 17,

2017. 10 This appeal followed.

      We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366

(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

our standard of review of the judge's decision "in fashioning an appropriate
equitable remedy to fit the particular circumstances" was "abuse of discretion,"
id. at 275, whereas our standard of review on a summary judgment motion is de
novo.
10
  Subsequently, John moved for a stay of the court's decision pending appeal,
which was granted on December 15, 2017.
                                                                           A-5689-16T1
                                         24
            entitled to a judgment as a matter of law, summary
            judgment must be granted.

            [Ibid. (citation omitted) (quoting R. 4:46-2(c)).]

      "An issue of fact is genuine only if, considering the burden of persuasion

at trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact." R. 4:46-2(c). "The practical effect

of [Rule 4:46-2(c)] is that neither the motion court nor an appellate court can

ignore the elements of the cause of action or the evidential standard governing

the cause of action." Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

      If there is no genuine issue of material fact, we must then "decide whether

the trial court correctly interpreted the law." DepoLink Court 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 accord no deference to the trial court's legal

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013). "[F]or mixed

questions of law and fact, [we] give[] deference . . . to the supported factual

findings of the trial court, but review[] de novo the [trial] court's application of

any legal rules to such factual findings." State v. Pierre, 223 N.J. 560, 577



                                                                            A-5689-16T1
                                        25
(2015) (first and fourth alteration in original) (quoting State v. Harris, 181 N.J.

391, 416 (2004)).

      To obtain relief in a mortgage foreclosure action, the mortgagee must

establish by a preponderance of the evidence that (1) the mortgage and loan

documents are valid; (2) the mortgage loan is in default; and (3) it has a

contractual right to foreclose upon the mortgaged premises in light of the

default. See Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div.

1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994). John argues there are

material disputed facts regarding the validity of the mortgage, whether he

ratified an invalid mortgage, whether an equitable mortgage was created, and

whether Adele was John's duly authorized agent.          According to John, the

competent evidential materials presented, when viewed in the light most

favorable to him, demonstrated disputed facts sufficient to withstand summary

judgment. 11 We agree.


11
     In its response brief, plaintiff argues John's "[b]rief and [a]ppendix are
primarily comprised of evidence and arguments that were never presented to the
trial court . . . and, therefore, did not constitute part of the record on appeal."
On appeal, "appellate courts will not ordinarily consider evidentiary material
which is not in the record below." Pressler & Verniero, Current N.J. Court
Rules, cmt. 1 on R. 2:5-4 (2019). However, "the issues here do not involve the
receipt of evidence . . . ." Atl. Emp'rs Ins. Co. v. Chartwell Manor Sch., 280
N.J. Super. 457, 467 (App. Div. 1995). Rather, the legal issues presented in this


                                                                           A-5689-16T1
                                       26
      "An equitable mortgage is created by agreement of the parties. " Reibman

v. Myers, 451 N.J. Super. 32, 48 (App. Div. 2017).

             If a deed or contract, lacking the characteristics of a
             common-law mortgage, is used for the purpose of
             pledging real property, or some interest therein, as
             security for a debt or obligation, and with the intention
             that it shall have effect as a mortgage, equity will give
             effect to the intention of the parties. Such is an
             equitable mortgage.

             [J. W. Pierson Co. v. Freeman, 113 N.J. Eq. 268, 270-
             71 (E. & A. 1933).]

      "Express words are not necessary to create an equitable mortgage;

however, it must be clearly apparent from the instrument or surrounding

circumstances, that the maker of the instrument intended the property to be

security for the obligation." Reibman, 451 N.J. Super. at 49. "When a guarantor



foreclosure action are "based upon all of the documentary proofs, including the
pleadings before the trial [court]." Ibid. (citing R. 4:46-2). The documentary
proofs that are the subject of plaintiff's objection were clearly before the court
as a result of the court's discovery orders and are therefore properly before us
on appeal. While plaintiff is correct that we will not ordinarily consider an issue
raised for the first time on appeal unless it relates to the trial court's jurisdiction
or matters of great public interest, see Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973), because the dispositive issue before the trial court dealt with
plaintiff's right to foreclose on the property, "we need not get caught up in the
question concerning the extent to which [John] ha[s] shifted gears or changed
[his] position" regarding the propriety of the foreclosure and "we will consider
the . . . issues as presented to us, regardless of whether [John's] principal theory
has changed." Docteroff v. Barra Corp. of Am., Inc., 282 N.J. Super. 230, 237
(App. Div. 1995).
                                                                               A-5689-16T1
                                         27
takes property as security for his or her guaranty, an equitable mortgage is

created." Ibid. (citing Zaman, 219 N.J. at 216-17.)

      In Zaman, our Supreme Court identified eight factors to assist courts in

determining whether the parties created an equitable mortgage. Those factors

include:

            [(1)] Statements by the homeowner or representations
            by the purchaser indicating an intention that the
            homeowner continue ownership; [(2)] A substantial
            disparity between the value received by the homeowner
            and the actual value of the property; [(3)] Existence of
            an option to repurchase; [(4)] The homeowner's
            continued possession of the property; [(5)] The
            homeowner's continuing duty to bear ownership
            responsibilities, such as paying real estate taxes or
            performing property maintenance; [(6)] Disparity in
            bargaining power and sophistication, including the
            homeowner's lack of representation by counsel; [(7)]
            Evidence showing an irregular purchase process,
            including the fact that the property was not listed for
            sale or that the parties did not conduct an appraisal or
            investigate title; [(8)] Financial distress of the
            homeowner, including the imminence of foreclosure
            and prior unsuccessful attempts to obtain loans.

            [219 N.J. at 218 (alterations in original) (quoting
            O'Brien v. Cleveland, 423 B.R. 477, 491 (Bankr. D.N.J.
            2010)).]

      Even a mortgage that is deemed void ab initio by an unauthorized

transaction may be ratified. When a party ratifies an obligation to which he

possessed a valid defense, the obligation will be given effect as if o riginally

                                                                        A-5689-16T1
                                      28
authorized by that party. Martin Glennon, Inc. v. First Fidelity Bank, N.A., 279

N.J. Super. 48, 60 (App. Div. 1995). However, ratification requires an "intent

to ratify plus full knowledge of all the material facts" and "may be express or

implied[.]" Thermo Contracting Corp. v. Bank of N.J., 69 N.J. 352, 361 (1976).

"The intent to ratify an unauthorized transaction may be inferred from a failure

to repudiate it." Reibman, 451 N.J. Super. at 50 (citing Citizens First Nat'l Bank

v. Bluh, 281 N.J. Super. 86, 98 (App. Div. 1995)). "However, in most cases, the

silence or inaction of a principal will not ratify the agent's unauthorized act

unless it is clear that the principal was fully informed of what the agent did. "

Ibid.

            [W]here the silence of a principal may cause loss to a
            third person, or give him an advantage, he must,
            without unreasonable delay after the fact comes to his
            knowledge that his agent has exceeded his authority,
            disown his agent's act and afford the other party an
            opportunity to protect himself, or he will make his
            agent's act his own.

            [Bluh, 281 N.J. Super. at 99 (quoting Chetwood v.
            Berrian, 39 N.J. Eq. 203, 210 (Ch. 1884)).]

Even in the case of a husband and a wife, "it is the general principle that the

wife is the agent of her husband only by virtue of his authority expressly

conferred or reasonably to be implied from the circumstances." Smedley v.

Sweeten, 11 N.J. Super. 39, 41 (App. Div. 1950).

                                                                          A-5689-16T1
                                       29
      Here, the court made legal conclusions and granted summary judgment

despite the presence of disputed material facts underlying those determinations.

Notably, the court determined that John was unable to demonstrate that the

money was spent on anything other than family-related expenses to dispute the

fact that he was an equitable mortgagor who reaped the benefits of the subject

mortgage. However, the only evidence that the money was spent on family-

related expenses came from Adele's deposition testimony, which the court

expressly rejected. On the other hand, Saccomanno's report demonstrated that

Adele had misappropriated over $66,000 annually in excess funds after paying

lifestyle expenses.    Moreover, the court explicitly acknowledged John's

substantial earnings, from which an inference could be drawn that his earnings

adequately supported the family's lifestyle. "On a motion for summary judgment

the court must grant all the favorable inferences to the non-movant." Brill, 142

N.J. at 536.

      Further, although the court did not rely on the Equifax reinvestigation

report to demonstrate that John had inquiry notice of the subject mortgage dating

back to 2009, the court tacitly acknowledged its difficulty believing that John,

an intelligent man who held high-powered positions, never checked his

mortgage statements for over twenty years. However, a summary judgment


                                                                         A-5689-16T1
                                      30
motion does not present an opportunity for the court to weigh the evidence or

make credibility findings. Id. at 540 (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986)).

      Moreover, John's deposition testimony disputed the court's impression

that he never checked his mortgage statements for over twenty years. On the

contrary, John testified that Adele provided him with fake documents when he

inquired and presented him with impostors to explain any discrepancies.

Additionally, while acknowledging that a mortgage signed by a power of

attorney was aberrational, the court failed to address the factual disputes

surrounding the validity of a mortgage created with purported forged signatures

and a forged power of attorney, as well as the scope of authority John conferred

upon Adele to act as his agent and John's knowledge of Adele's actions to

support a finding that he ratified her unauthorized acts.

      The court also relied heavily on its determination that John was made

financially whole by virtue of the terms of the MSA. However, that too was

disputed by John, who testified at his deposition that he had made significant

concessions in negotiating the MSA, including assuming a significant amount

of credit card debt Adele incurred in his name without his knowledge or consent.




                                                                        A-5689-16T1
                                       31
In addition, Adele's fifty percent interest in the property that was conveyed to

John under the MSA was subject to plaintiff's lien.

      On a motion for summary judgment, "[i]t [is] not the court's function to

weigh the evidence and determine the outcome but only to decide if a material

dispute of fact existed." Parks v. Rogers, 176 N.J. 491, 502 (2003) (quoting

Gilhooley v. Cty. of Union, 164 N.J. 533, 545 (2000)). The presence of a

genuine issue of material fact precludes summary judgment. Brill, 142 N.J. at

540. Here, the presence of multiple disputed material facts sufficed to withstand

summary judgment. Accordingly, we reverse the grant of summary judgment,

vacate the final judgment of foreclosure, and remand the matter for further

proceedings consistent with this opinion.

      Reversed and remanded for further proceedings.         We do not retain

jurisdiction.




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