                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-1294-13T3

GMAC MORTGAGE, LLC,

      Plaintiff-Respondent,

v.

TAMILYNN WILLOUGHBY,

      Defendant-Appellant.

__________________________________

            Argued December 17, 2014 – Decided April 8, 2015

            Before Judges Waugh and Carroll.

            On appeal from the Superior Court of New
            Jersey, Chancery Division, General Equity
            Part, Monmouth County, Docket No. F-19159-
            06.

            Meghan Chrisner-Keefe argued the cause for
            appellant (Denbeaux & Denbeaux, attorneys;
            Ms. Chrisner-Keefe and Joshua W. Denbeaux,
            on the brief).

            Jaime R. Ackerman argued the cause for
            respondent (Zucker, Goldberg & Ackerman,
            LLC, attorneys; Ms. Ackerman, of counsel and
            on the brief).

PER CURIAM

      Defendant Tamilynn Willoughby appeals from orders of the

General Equity Part concerning the foreclosure of the mortgage

on   her   residence   by   plaintiff   GMAC   Mortgage,   LLC.,   and   its

successor in interest.      We affirm.
                                           I.

       We discern the following facts and procedural history from

the record on appeal.

       Willoughby purchased a residential property in Union Beach

in 2001.        In February 2006, she refinanced her mortgage and

obtained a new loan from Security Atlantic Mortgage Corporation,

Inc.     She signed a note in the amount of $183,000, as well as a

new mortgage.         The note and mortgage were subsequently assigned

to GMAC.

       Willoughby defaulted on the note in June 2006, when she

failed to make a monthly installment payment.                   She continued to

miss payments until GMAC commenced this foreclosure in October

2006.      In   August      2007,   a   final   judgment   of   foreclosure    was

entered in favor of GMAC in the amount of $205,915.30.

       In September 2009, Willoughby sought an order to show cause

(OTSC)    seeking      to    stay   the    sheriff's   sale.      The   sale   was

adjourned       and    the    judge       allowed   Willoughby     to   file    an

application for mediation.

       On May 25, 2010, the parties mediated and agreed upon a

provisional mortgage modification plan.                On the same date, they

memorialized the material terms of the agreement in a settlement

memorandum.       The agreement required Willoughby to make "a down

payment of $6,000" by June 7, 2010.                 GMAC was to adjourn the

sale for six weeks, on receipt of the first payment, followed by



                                            2                            A-1294-13T3
further adjournments of twenty-eight days upon each subsequent

payment.

       On   June    7,        2011,     AMS     Servicing,          LLC,      (AMS),      GMAC's

servicing      agent,     sent      Willoughby         an    offer       to    enter     into    a

permanent       modification,            together           with       the     documents        to

effectuate acceptance of the offer.                     The proposal called for the

first payment by June 24, and established a modified maturity

date of March 1, 2036.                 Willoughby did not accept this offer.

On     December     5,        AMS     sent     Willoughby          a     second    offer        of

modification       with       slightly       different       terms.       Willoughby       again

failed to accept the offer.                   Finally, in May 2012, AMS sent its

final    offer     for    modification,             again    with       slightly       different

terms, and again Willoughby failed to accept it.

       In   the    interim,         Willoughby         continued         to     make     monthly

payments in the amount of $1814.78.                      On August 30, however, AMS

sent    Willoughby        a    letter        returning       her       mortgage    check      and

notifying her that it was referring the mortgage for foreclosure

because she had failed to accept the permanent modification.

       On September 12, Willoughby filed a pro se motion seeking

enforcement of the May 2010 interim agreement.                               On September 28,

the    trial    judge     declined       to    enforce        the      2010    agreement      and

ordered the parties to reenter mediation.                              At the mediation on

October 4, GMAC made the following offer to Willoughby:

               The following terms have been offered today:



                                                3                                       A-1294-13T3
           unpaid    principle    balance  $181,783.82,
           interest rate of 6.125%, 360 month term.
           Payments to begin on December 1, 2012 in
           approximate amount of $1805. By November 1,
           borrower to make down payment of approx.
           $3630    (representing    the  2    returned
           payments).     If 24 consecutive on time
           payments   are   made,  lender would   waive
           approx. $18,000 in interest. This would not
           be a balloon [modification], but approx.
           $2500 due on maturity in interest.   Approx.
           $10000 are being held in suspense, which
           would be applied.

           [(Emphasis added.)]

During   the   mediation,   Willoughby   made   the   following    counter

offer:

           I will accept a permanent modification offer
           with the following terms.
           Application of $10,800 +/— suspense to
           escrow [balance].
           No down payment.
           [Principle balance] 181,783.82
           Interest Rate 5%
           Term 360 mos
           First payment due 12/1/2012
           Waiver of $78k interest Upon Signing No 24
           [Month] Trial
           Balloon at end of 360 months $24k w/o
           interest
           Once modified lender will contact all credit
           bureaus to [correct] borrowers credit.

           [(Emphasis added.)]

Willoughby subsequently described the five percent interest rate

in her counteroffer as the most important term for her.

      The parties agreed that they would have until November 21

to   respond   to   their   respective   offers.      If   an   offer   were

accepted, implementing documents would be sent to Willoughby by



                                    4                              A-1294-13T3
December 11.        The parties agreed that there would be no further

mediation.

      GMAC        declined       Willoughby's           counteroffer         via     email.

Willoughby did not respond to GMAC's offer.                        Although Willoughby

sought to make a counteroffer on December 3, it was rejected

based     on   the     agreement       that      there        would    be     no   further

negotiations.

      On December 6, Willoughby                  went    to the office of            GMAC's

attorney,      seeking      to   accept     GMAC's      offer.         She   offered     two

cashier's checks, each in the amount of $1814.78.                            The attorney

told her the modification documents would be sent to her home.

Her acceptance of GMAC's offer was memorialized in an email sent

by GMAC's attorney to the court and all interested parties.                              The

documents      were    prepared       and    sent       to    Willoughby.          However,

Willoughby failed to execute them.                           GMAC then      rescinded the

offer.

      In January 2013, GMAC filed a motion to substitute FRT2001-

1 Trust (Trust) as the plaintiff, and to allow the sheriff's

sale to proceed.             Willoughby filed a cross-motion seeking to

collect     the     proceeds     of    an    insurance         claim     resulting     from

Superstorm Sandy and to enforce settlement.                            She attached an

agreement purporting to be the final modification document sent

to her by GMAC's attorney as an exhibit to her motion.                             However,

the   terms    of     the    document       submitted         by   Willoughby      differed



                                             5                                     A-1294-13T3
significantly     from   the    modification     agreement     Willoughby       had

accepted.

      On February 22, the trial judge scheduled a plenary hearing

to determine whether Willoughby was entitled to the insurance

proceeds and to enforce the settlement.                 He also allowed the

sheriff's sale to proceed, following compliance with the filing

of a certificate of diligent inquiry by the Trust.                    The plenary

hearing was adjourned several times, and ultimately did not take

place.

      On August 23, the parties appeared for oral argument before

a new General Equity judge.             Willoughby argued for enforcement

of the May 2010 provisional agreement, rather than enforcement

of the permanent modification agreement attached to her motion

papers.     The judge found that there was no permanent mortgage

modification    because        Willoughby     had     failed     to     sign    the

implementing    documents.        The    judge   also   denied        Willoughby's

application to enforce the provisional agreement, which by its

terms was to have been replaced by a permanent modification of

the   mortgage.          Finally,       the   judge     denied        Willoughby's

application for payment of the insurance proceeds to her.

      Willoughby    moved       for     reconsideration,       again       seeking

enforcement of the May 2010 provisional agreement.                      The judge

heard argument on October 25, and determined that there was no

basis to reconsider the prior decision because a settlement had



                                         6                                A-1294-13T3
not been reached and because Willoughby sought enforcement of a

different    agreement       than    she    had    sought     in    her     underlying

motion.      The    judge    also    denied      Willoughby's      request     for   an

accounting of the loan, determining that the request was not

properly before her.

     The    sheriff's       sale    was    scheduled    for     November     4.      The

Trust's attorney sent Willoughby a letter notifying her of the

sale date.      Willoughby's attorney sought to file an OTSC to stay

the sale, but failed to pay the required filing fee.                        Willoughby

applied to us for emergent relief, which we denied on November

4.   The sale proceeded as scheduled.

     Willoughby's statutory redemption period was to expire on

November 14.        On November 11, she filed a motion objecting to

the sale.    Willoughby then withdrew the motion, and sought entry

of an OTSC setting aside the sale.                  On November 20, the judge

held an initial hearing on the application.                         She granted no

interim relief, but scheduled the return date of the OTSC for

December    19.      The    judge    denied      Willoughby's      request     for    an

extension    of     her     redemption      period,     which      relief    was     not

contained in her application for the OTSC.

     The judge held oral argument on December 19.                      She rejected

Willoughby's argument that she did not have proper notice of the

date of the sale and that the sale price was inadequate.                             The

judge   found      that    Willoughby      had    not   presented     any     evidence



                                           7                                  A-1294-13T3
warranting vacation of the sheriff's sale.              The judge determined

that "It is obvious to me and it's clear to me that [Willoughby]

knew what the sale date was.        She was notified by the sheriff.

She was notified by the plaintiff.          And she chose not to appear

or she chose not to do something."               On January 14, 2014, the

judge entered an order denying the relief sought in Willoughby's

OTSC.   This appeal follows.

                                    II.

    Willoughby argues on appeal that the General Equity judge

erred in determining that there was no mortgage modification

agreement, in failing to hold a plenary hearing, in refusing to

order an accounting, and in denying her application to set aside

the sheriff's sale.

    We conclude that there was no need for a plenary hearing.

A trial or factfinding hearing is only required when there are

genuine issues of material fact.           "The inquiry is 'whether the

evidence   presents      a    sufficient        disagreement    to     require

submission to a [trier of fact] or whether it is so one-sided

that one party must prevail as a matter of law.'"                      Liberty

Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46

(2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 536 (1995)).

    The    provisional       agreement    was     not    enforceable     on     a

permanent basis because it was, as its name implies, a temporary



                                     8                                 A-1294-13T3
agreement to be replaced by a permanent mortgage modification

signed    by   the     parties.         It    is    clear      from       the   record       that

Willoughby      never      accepted     GMAC's       offer     of     a    permanent         loan

modification.         She never signed the documents tendered by GMAC

to implement its offer, although she had several opportunities

to do so.       Instead, she made counteroffers seeking terms more

favorable      to   her,     particularly          with   respect         to    the    interest

rate.     A    "counteroffer        operates         as   a    rejection         because       it

implies that the offeree will not consent to the terms of the

original offer and will only enter into the transaction on the

terms stated in the counteroffer."                    Berberian v. Lynn, 355 N.J.

Super. 210, 217 (App. Div. 2002).                    There was never a meeting of

the minds with respect to the essential terms of a permanent

modification agreement.           Weichert Co. Realtors v. Ryan, 128 N.J.

427, 435 (1992).           Because we find no error with respect to the

judge's   initial       decision,       the    motion      for    reconsideration             was

properly denied.

      The Chancery Division has the authority to set aside a

sheriff's      sale    and     order    a     resale      of   the    property          in    the

exercise of its discretion, based on considerations of equity

and   justice.         First    Trust    Nat'l       Assoc.      v.   Merola,          319   N.J.

Super. 44, 49 (App. Div. 1999).                    "The general rule is that when

insufficient notice of a sheriff's sale is given, the preferred

remedy    is    that    which     restores         the    status      quo       ante    to    the



                                              9                                         A-1294-13T3
greatest      extent      possible."         New        Brunswick     Sav.    Bank     v.

Markouski, 123 N.J. 402 (1991).                  The court may void the sale if

the party seeks relief promptly, was unaware of the pending

sale, and no innocent third parties would be prejudiced.                            Ibid.

A judicial sale may be set aside for fraud, accident, surprise,

mistake, irregularities in the conduct of the sale, or for other

equitable considerations.            Merola, supra, 319 N.J. at 50.

      Willoughby acknowledges that she received notice from the

sheriff that the sale would occur on November 4, 2013.                         Counsel

for plaintiff also notified Willoughby of the November 4 date.

The sale took place on that date.

      We find no error in the judge's refusal to grant relief

based on a screenshot allegedly taken from the Monmouth County

Sheriff's Department website showing a December 9 sale date.

The website clearly states that the Sheriff's Office "does not

warrant      the     accuracy,    completeness,           or   timeliness     of     [the

posting]."         In addition, Willoughby did not contend that she had

been notified of a December 9 date by the Sheriff or the Trust.

She also acknowledges that, on November 4, the sale was listed

for   that    day    on   the    Sheriff's       Office    website.      We   find     it

telling      that    Willoughby's      application         for   an   OTSC    was     not

accompanied by a certification signed by her and alleging that

she would have appeared at the sale on November 4 but did not do

so    because       she   believed    the        date   had    been   adjourned,       or



                                            10                                 A-1294-13T3
asserting    that    she   had   sufficient    funds    to   bid   at   the    sale

whenever it was held.

      Willoughby also argues that the sale price at the sheriff's

sale was inadequate.        We have held that "inadequacy of price is

not sufficient alone to justify equitable relief."                 Ibid.

      The remaining issues raised on appeal are without merit and

do   not   warrant    discussion    in    a   written   opinion.        R.    2:11-

3(e)(1)(E).

      Affirmed.




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