                        NOT FOR PUBLICATION WITHOUT THE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-3732-15T4

E* TRADE BANK,

        Plaintiff-Respondent,

v.

FARLEY BOYLE, MR. BOYLE,
husband of Farley Boyle,
PATRICK BOYLE, MRS. PATRICK
BOYLE, his wife, and WELLS
FARGO BANK, N.A.,

     Defendants-Appellants.
___________________________________

              Submitted August 1, 2017 – Decided August 8, 2017

              Before Judges Sabatino and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, General Equity, Monmouth
              County, Docket No. F-4325-14.

              Fox & Melofchik, L.L.C., attorneys                   for
              appellants (Gary E. Fox, on the briefs).

              Phelan Hallinan Diamond & Jones, P.C.,
              attorneys for respondent (Brian J. Yoder, on
              the brief).

PER CURIAM

        The narrow focus of this residential foreclosure appeal is

whether the final judgment of foreclosure reflects duplicative or
excessive charges that should be subtracted from the defendant

homeowners' monetary obligation to the plaintiff bank.     For the

reasons that follow, we vacate the trial court's April 1, 2016

order rejecting defendants' overcharge claims on the papers and

the ensuing April 27, 2016 final judgment, and remand for a plenary

hearing concerning the alleged overcharges.

     Much of the factual and procedural background is undisputed.

On February 25, 2005, defendants Farley and Patrick Boyle executed

a promissory note in the amount of $1,241,000 payable to GreenPoint

Mortgage Funding, Inc. ("GreenPoint") for funds they borrowed to

purchase a residence in Little Silver.   On that date, the Boyles

executed a mortgage in that same amount to GreenPoint's nominee.

The mortgage was duly recorded.      Almost eight years later, in

January 2013, GreenPoint's nominee assigned the Boyles' mortgage

to plaintiff, E* Trade Bank, and that assignment was likewise duly

recorded.1

     As admitted by the Boyles, they defaulted on the Note in or

about December 2012.   The default prompted plaintiff to file this

foreclosure action in the Chancery Division in February 2014.    The




1
  The Boyles also entered into a second mortgage on the property
in June 2006 with co-defendant Wells Fargo Bank, N.A., which is
not pertinent to the present appeal.

                                 2                          A-3732-15T4
Boyles do not dispute plaintiff's standing as an assignee to bring

this action.

     In their answer to the foreclosure complaint, the Boyles

asserted that they had been improperly double-charged by plaintiff

and its servicer for certain insurance costs.      Thereafter, counsel

for the parties entered into a Consent Order in December 2014

agreeing to have the matter returned to the Office of Foreclosure.

The parties also agreed to attempt to mediate the dispute and

achieve   a    possible   loan   modification    through   the   court's

foreclosure mediation program.     The mediation occurred, but failed

to produce a settlement.

     Plaintiff then moved for the entry of final judgment in the

sum of $1,619,775.62, plus costs and attorney's fees.       Plaintiff's

notice of motion specifically advised that the borrowers could

object in writing to the "calculation of the amount due[.]"           The

notice further advised that if such a specific objection to the

amount due were advanced by the borrowers, the dispute would be

referred to a judge in the county of venue.

     Through their counsel, the Boyles filed a written objection

to the calculation of the final judgment.       They did so in the form

of a letter, a certification from Mrs. Boyle, and supporting

documents.     Specifically, the Boyles objected to (1) allegedly

duplicative flood insurance charges of $7,567.50, respectively

                                   3                             A-3732-15T4
dated December 16, 2011 and December 29, 2011, and (2) homeowner's

insurance charges of $10,699.89.               As stated in Mrs. Boyle's

certification, the Boyles directly maintained and paid homeowner's

insurance for the residence every year, and thus it was unnecessary

for plaintiff to incur and seek reimbursement for that premium

cost.     Mrs. Boyle also provided a copy of the flood insurer's

endorsement for the policy period of October 24, 2014 to October

24, 2015, reflecting that the annual flood premium was only $7,500,

and not the sum used by plaintiff for over that amount.                Plaintiff

contested     these      assertions,   maintaining      that   the     insurance

expenses that had been charged were proper and not duplicative.

      The    overcharge     dispute    was   referred    by    the    Office    of

Foreclosure to the vicinage's Chancery Division.                     The Boyles'

counsel supplied the court with his client's prior submissions,

along with his own certification and brief in support of the

motion.      Counsel requested oral argument on the motion, and sent

a   letter    to   the    court   on   March   16,   2016,     confirming      his

understanding that the court would hear oral argument on April 1,

2016.     Meanwhile, two days before that return date, plaintiff

served a package of additional responding documents upon the

Boyles' counsel.         The following day, March 31, the court advised

counsel that it would not allow oral argument on the pending motion

and would instead decide the matter on the papers.

                                        4                                A-3732-15T4
     On April 1, 2016, the trial court issued an oral opinion,

granting plaintiff the full amount it had sought in the final

judgment and rejecting the Boyles' contention that they had been

overcharged.     Among other things, the court characterized the

Boyles' objection as "speculative" and insufficiently "specific."

     With respect to the flood insurance charges, the court found

that plaintiff's "business records show that the charge[s] [were]

not duplicative, but [that] plaintiff was forced to make certain

payments."     The court further noted that the mortgage provided

that, if the borrowers failed to maintain required insurance

coverages, the lender had the right to obtain such coverage at its

own option and at the borrowers' expense.   The court deemed Mrs.

Boyle's certification inadequate because, although it states that

the borrowers maintained homeowners' insurance, the borrowers did

not furnish the court with "any proofs that show that they did."

     On appeal, the Boyles argue that the trial court procedurally

erred in denying their counsel's request for oral argument and,

moreover, in not conducting a plenary hearing at which testimony

could have shed light on the disputed pretrial issues.   Plaintiff

responds that there were no genuine issues of disputed fact to

justify either oral argument on the motion or a plenary hearing.

In addition, plaintiff interposes a legal argument not relied upon

by the trial court, arguing that the Boyles waived any right to

                                 5                         A-3732-15T4
contest the final calculation of the judgment by entering into the

December 2014 Consent Order.

     Having   considered    these   arguments,   we   conclude   that   the

fairest and most appropriate course of action is to remand this

matter to the trial court for further proceedings concerning the

alleged overcharges.

     In general, trial courts are to honor litigants' requests for

oral argument on substantive civil motions that do not concern

pretrial discovery or calendaring issues. See R. 1:6-2(c). Where,

as here, a timely request has been made for oral argument on a

civil motion not related to discovery or calendaring, Rule 1:6-

2(d) prescribes that such a "request shall be granted as of right."

See also Great Atl. & Pac. Tea v. Checchio, 335 N.J. Super. 495,

497-98 (App. Div. 2000).       This is not an exceptional instance in

which the entitlement to oral argument under Rule 1:6-2(d) was

appropriately relaxed because argument would have been manifestly

unproductive.   Cf. Polanski v. Polanski, 414 N.J. Super. 274, 285-

86 (App. Div. 2010).       Moreover, the trial court's decision does

not address why the Boyles' request for oral argument was denied.

     The   thrust   of   the    Boyles'   opposition    to   the    bank's

calculations centered upon factual issues and disputes that could

have benefited from a plenary hearing.           In general, a plenary

hearing in such contexts is preferable to the court resolving the

                                    6                              A-3732-15T4
issues based solely upon competing written submissions.    Bruno v.

Gale, Wentworth & Dillon Realty, 371 N.J. Super. 69, 76-77 (App.

Div. 2004) (remanding a dispute for a plenary hearing "[t]o insure

a proper accommodation to fairness" and "to resolve the conflicting

factual contentions").

     Although we appreciate the trial court's legitimate interest

in disposing of pending motions efficiently, in this particular

instance the better course would have been to permit counsel to

present oral advocacy and plenary testimony before conclusively

rejecting the Boyles' overcharge claims.     We do agree with the

trial court that the Boyles' objections would have been more

persuasive had they attached additional documentation, such as

invoices or bank statements substantiating Mrs. Boyle's certified

assertion that they, in fact, had paid their homeowners' policy

premiums directly.   But, as the Supreme Court has instructed, one

should be cautious in hypothesizing that witnesses who attest to

facts under penalty of perjury are lying or mistaken.    See, e.g.,

Townsend v. Pierre, 221 N.J. 36, 58-59 (2015).

     We recognize that plaintiff has supplied plausible evidence,

which defendants dispute, to substantiate its explanation that the

two December 2011 flood insurance premiums it paid were for two

successive policy periods and thus not duplicative.   Nevertheless,



                                 7                          A-3732-15T4
these matters could have been explored in a relatively short

hearing that would have dispelled any lingering uncertainties.

      Although we need not reach the question because plaintiff's

waiver argument was not adjudicated below, we reject its overly-

broad construction of the December 2014 Consent Order.                       To be

sure, the Consent Order does recite that defendants waived "all

claims and defenses" against plaintiff.           Nevertheless, we decline

to construe that language as depriving the borrowers an opportunity

to   interpose   an   objection    to   the    total    amount   of    the   final

judgment,   which     had   not   yet   been   calculated    pending     further

processing by the Office of Foreclosure.               The notice sent to the

Boyles expressly advised them of their right to file a specific

objection to the calculation of the final amount due.                 We will not

consider that written direction to be meaningless.                    The Boyles

appropriately exercised the rights afforded to them under the

notice, and the trial court accordingly was authorized to consider

their objection on its merits (as it did, albeit without a hearing)

notwithstanding the prior Consent Order.

      For these reasons, the trial court's rulings are vacated and

the matter is remanded for oral argument and a plenary hearing.

In doing so, we express no views about the ultimate merits of the

Boyles' overcharge claims.

      Vacated and remanded.        We do not retain jurisdiction.

                                        8                                 A-3732-15T4
