                                 NOT FOR PUBLICATION WITHOUT THE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-5141-17T1

WELLS FARGO BANK, N.A.,

          Plaintiff-Respondent,

v.

RAYMOND C. HERZINGER,
MRS. RAYMOND C. HERZINGER,
his wife, KATHLEEN D. HERZINGER,
MR. HERZINGER, husband of
KATHLEEN D. HERZINGER,

     Defendants-Appellants.
_________________________________

                   Submitted May 20, 2019 – Decided July 19, 2019

                   Before Judges Sumners and Susswein.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Ocean County, Docket No. F-
                   004033-17.

                   Raymond C. Herzinger and Kathleen D. Herzinger,
                   appellants pro se.

                   Reed Smith LLP, attorneys for respondent (Henry F.
                   Reichner, of counsel and on the brief).
PER CURIAM

       In this residential foreclosure action, defendants Raymond Herzinger and

Kathleen Herzinger, appeal from the trial court's order granting plaintiff Wells

Fargo's motion for summary judgment and denying defendants' cross-motion to

dismiss the foreclosure complaint. Defendants, who appear before us pro se, do

not dispute that they were in default of the subject mortgage. Instead, they raise

two main contentions: first, that Wells Fargo does not have standing to foreclose

on the mortgage because another financial institution, Wachovia Bank,

originally made the loan; and second, that Wells Fargo did not serve the Notice

of Intent to foreclose (NOI) by registered or certified mail with return receipt

requested as required by the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to

-68.

       We have considered defendants' contentions in light of the record and

applicable legal principles. We find that the trial judge did not abuse his

discretion in concluding that plaintiff had adduced competent, admissible

evidence that established that Wells Fargo acquired the mortgage loan as a result

of its merger with Wachovia Bank and therefore had standing to bring this

foreclosure action. However, we agree with defendants that the record before

us does not show that Wells Fargo served the NOI by means of certified or


                                                                          A-5141-17T1
                                        2
registered mail with return receipt requested, which is explicitly required by

N.J.S.A. 2A:50-56(a)-(b). Because this statutory requirement must be strictly

enforced, we reverse the grant of summary judgment and order that the

foreclosure complaint be dismissed, without prejudice.

                                       I.

      On November 18, 2003, defendants executed and delivered a promissory

note for $81,200 to Wachovia Bank. To secure the loan, defendants executed a

mortgage on their home.

      On April 25, 2011, defendants entered into an Installment Loan

Modification Agreement with plaintiff Wells Fargo. Defendants defaulted on

the loan three years later.   On October 18, 2016, plaintiff sent NOIs to

defendants at the mortgaged property by certified and regular mail. Defendants

never cured the default.

      Plaintiff filed a foreclosure complaint against defendants on February 17,

2017, and eight months later filed a motion for summary judgment. On October

23, 2017, defendants filed a cross-motion to dismiss the foreclosure complaint.

      On October 26, 2017, a trial judge granted plaintiff's motion for summary

judgment.   On November 17, 2017, he denied defendants' cross-motion to




                                                                        A-5141-17T1
                                       3
dismiss. The trial judge addressed both motions in a combined statement of

reasons that he issued on November 17, 2017.

      On May 3, 2018, plaintiff moved for entry of final judgment, which was

granted on May 29, 2018. The following day, defendants filed a motion to fix

the amount due to zero. The court denied that motion on June 22, 2018.

                                       II.

      We first address whether the NOI was served in compliance with the FFA,

and if not, whether the foreclosure complaint should be dismissed. 1 "On appeal,

we engage in de novo review from a trial court's decision to grant or deny a

motion to dismiss filed pursuant to Rule 4:6-2(e)." Smith v. Datla, 451 N.J.




1
  The trial judge's written decision on November 17, 2017, treats defendants'
motion to dismiss as merely revisiting the decision to grant summary judgment
in plaintiff's favor. We would note that the trial judge's assumption that proper
service of the NOI was not disputed is incorrect in view of defendant's objections
to plaintiffs' statement of undisputed facts. See footnote 2. To the extent that
this material fact is very much in dispute, we question whether the standard for
summary judgment had been met. See Brill v. Guardian Life Ins. Co. of Am.,
142 N.J. 520, 540 (1995). However, we chose to address the NOI service issue
in the context of defendants' motion to dismiss the foreclosure complaint, rather
than defendants' opposition to plaintiff's motion for summary judgment. Were
we merely to reverse the grant of summary judgment, the remedy would be to
remand the case for trial. As we will explain momentarily, we do not believe
that is the appropriate remedy in the face of a violation of the FFA.


                                                                          A-5141-17T1
                                        4
Super. 82, 88 (2017) (citing Rezem Family Assoc., LP v. Borough of Millstone,

423 N.J. Super. 103, 114 (App. Div. 2011)).

      We start our analysis by noting that plaintiff asserts that, "the Borrowers

[defendants] have never denied receipt of the NOI." Defendants refute that

assertion in their reply brief and note that they denied receiving the NOI in their

objections and responses to plaintiff's statement of undisputed facts. 2 Because

we can find nothing in the record to support plaintiff's contention that the NOI

was actually received, for purposes of this appeal, we assume that the alleged

defect in the service of the NOI is not an academic issue.

      The FFA promulgates strict foreclosure guidelines that lenders must

comply with as they attempt to resolve non-performing loans. In U.S. Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449 (2012), the Supreme Court emphasized

the important function of the NOI as part of the foreclosure process, explaining

that "[t]he [NOI] is a central component of the FFA, serving the important

legislative objective of providing timely and clear notice to homeowners that

immediate action is necessary to forestall foreclosure." Id. at 470.


2
  Plaintiff's Statement of Undisputed Facts asserts that the NOI was "mailed by
certified mail, return receipt requested, and regular mail. . . ." Defendant's
Response to that specific assertion was: "Defendants deny this statement." The
response also states, "There is no return receipt card that supports [p]laintiff's
assertion."
                                                                           A-5141-17T1
                                        5
      The FFA specifically and explicitly prescribes that a residential mortgage

lender must serve a NOI to file foreclosure proceedings "by registered or

certified mail, return receipt requested." N.J.S.A. 2A:50-56(a)-(b) (emphasis

added). We must assume that when the Legislature included the language

"return receipt requested" in the FFA, it did so carefully, opting to impose a

requirement that goes beyond the rule of general application in civil cases that

permits service by regular mail, and that creates a presumption that a notice was

received if it was mailed to the correct address. See e.g., Hammond v. City of

Paterson, 145 N.J. Super. 452, 456 (App. Div. 1976) (holding that the

Legislature, in requiring "actual receipt" of notice in the Tort Claims Act when

certified mail is not used, "clearly did not mean to leave proof of actual receipt

to a presumption."); see also Intile Realty Co., Inc. v. Raho, 259 N.J. Super. 438,

454 (Law. Div. 1992) (holding that "[n]o presumption of receipt will arise from

mailing by ordinary mail where the statute prescribes registered mail.").

      In Hammond, we noted that, "[i]t is evident from the tenor of the Tort

Claims Act that the Legislature considered the receipt of notice of fundamental

importance." 145 N.J. at 455. We also observed that it is clear from case law

"[t]hat statutory requirements for giving notice in a particular fashion must be




                                                                            A-5141-17T1
                                        6
strictly followed." Ibid. This principle, of course, applies not only to the Tort

Claim Act, but to the FFA as well.

      Indeed, the FFA provision governing the service of notice goes further by

explicitly requiring not just certified mail, but certified mail return receipt

requested. It bears noting that this is a special, enhanced requirement as the

Legislature does not always prescribe that notices and pleadings be mailed with

a return receipt request as a condition of satisfactory service. In Green v. East

Orange, 21 N.J. Tax 324 (2004), for example, the Tax Court relied on the fact

that N.J.S.A. 54:4-34 – a statute governing tax assessment matters – does not

incorporate a return-receipt requirement, but rather only requires that a tax

assessor's request for information be made by certified mail. 3 Id. at 334.

      When the Legislature chooses to impose a requirement to use the return-

receipt-request option for certified mail, as it did in the FFA, we must assume

that the requirement is significant and cannot be disregarded.       We expect,

moreover, that financial institutions would have little difficulty complying with



3
  The court in Green explained the difference between a delivery receipt (which
is maintained by the United States Postal Service (USPS)) and a return receipt
(which is returned to the sender). "Return receipt service is not automatically
part of certified mail service but rather is an optional service." 21 N.J. Tax at
334. This optional service provides a mailer with evidence of delivery. Ibid.
(quoting 58 Domestic Mail Manual § S915.1.1 (2003)).
                                                                          A-5141-17T1
                                        7
this requirement, or later proving that they had done so simply by retaining the

USPS receipt indicating that this option had been purchased. That receipt would

satisfy the service requirements of the FFA even if it should turn out that the

return is not signed by the addressee. This mailing option thus protects the

interests of lenders as well as borrowers.

        In GE Capital Mortg. Services, Inc. v. Weisman, 339 N.J. Super. 590

(Ch. Div. 2000), a case involving foreclosure pursuant to the FFA, the Chancery

Division judge addressed the borrower's challenge to the lender's policy of

mailing NOIs solely by means of first class mail. 4 The court concluded that the

lender's inability to provide proof demonstrating service was a violation of the

FFA.   Id. at 592-594.     The Chancery Division judge determined that the

appropriate remedy was to order the lender to forward a new NOI by certified

mail, return receipt requested, within ten days. Id. at 595. In E.M.C. Mortg.

Corp. v. Chaudhri, 400 N.J. Super. 126, 137 (App. Div. 2008), we rejected that

approach, noting that "[w]e disapprove of the remedy employed in that case [ GE

Capital Mortg. Services, Inc.], and reinforce the statutory mandate that lenders



4
  The FFA violation in GE Capital Mortg. Services, Inc., was the use of regular
mail rather than certified or registered mail. The court in that case did not have
occasion to address the use of certified mail without a return receipt request.
See footnote 3.
                                                                          A-5141-17T1
                                        8
send proper notice. . . ." 400 N.J. Super. at 139. We concluded that the proper

remedy for the FFA violation in Chaudhri, was dismissal of the foreclosure

complaint, without prejudice, explaining that, "[w]e concur with the trial judge's

dismissal, without prejudice, of [a lender's] foreclosure complaint due to the

failure to send the notice of intent to foreclose prior to commencing suit. As we

noted, the notice provisions are mandatory." Ibid. We further emphasized that,

"[t]he Legislature specifically intended that lenders faithfully comply with the

FFA provisions. . . . Accordingly, courts are not free to deviate from the

unambiguous statute." Ibid.

      We derive two important legal principles from these precedents. First, the

explicit procedural provisions of the FFA are to be enforced strictly; partial

compliance (e.g., using certified mail without the return-receipt-requested

option) is not sufficient. Second, the remedy for a lender's noncompliance is

dismissal of the foreclosure complaint, without prejudice.

                                       III.

      We now apply those principles to the case before us. In his November 17,

2017 statement of reasons for denying defendants' motion to dismiss, the trial

judge found that "[o]n October 18, 2016, Notices of Intention to Foreclose,

mailed by certified mail, return receipt requested, and regular mail were


                                                                          A-5141-17T1
                                        9
forwarded    to   RAYMOND          C.   HERZINGER         and   KATHLEEN          D.

HERZINGER." (emphasis added). Presumably, the trial judge was relying on

the plaintiff's Statement of Undisputed Facts.        See footnote 2.    However,

plaintiff's assertion is not supported by any document or certification that was

provided in the course of discovery. Plaintiff provided a copy of the NOI, but

without written proof that it was mailed with return receipt requested.

Furthermore, plaintiff provided a certification by the Vice President of Loan

Documentation for Wells Fargo, that states that "[a] notice of intent to foreclose

was mailed to [defendants'] last known address and, if different, to the address

of the property by regular and certified mail, at least thirty days before filing of

the [c]omplaint for foreclosure. A true copy of the [NOI] is attached . . . ."

Conspicuously absent from this certification is any mention that Wells Fargo

used the return-receipt-requested mailing option.

      In sum, our review of the record fails to disclose a basis for the judge's

finding that the NOI had been sent by certified mail with the return-receipt-

request option offered by USPS. We therefore conclude that the record on

appeal fails to establish that plaintiff complied with N.J.S.A. 2A:50-56(a)-(b),

and fails to establish that defendants actually received the NOI.




                                                                            A-5141-17T1
                                        10
      Plaintiff nonetheless contends that defendants did not make the return -

receipt-requested argument to the trial court as part of their motion to dismiss,

thereby waiving that argument and the right to appellate relief for plaintiff's

noncompliance with the FFA. Before addressing plaintiff's waiver argument,

we note that the parties do not agree on whether the NOI service issue was raised

at the trial court level. This dispute cannot be resolved simply by looking at the

point heading in defendants' pro se appellate brief, which asserts that this issue

was raised below. See R. 2:6-2(a)(1) (appellant's brief must include a statement

in parentheses at the end of the point heading if the issue was not raised below).

Accordingly, we have carefully reviewed the record.

      In the original answer to the foreclosure complaint, defendants asserted as

an "affirmative defense" that, "[p]laintiff did not plead the facts mailing [sic] a

'Notice of Intention to Foreclose' to [d]efendants that is in full compliance [with]

the Fair Foreclosure Act."      In their objections and responses to plaintiff's

statement of undisputed facts, which defendants filed on October 19, 2017,

defendants denied plaintiff's statement of undisputed fact that the NOI was

mailed by certified mail, return receipt requested, and specifically noted that,

"[t]here is no return receipt card that supports [p]laintiff's assertion."




                                                                             A-5141-17T1
                                        11
      However, it also appears that defendants did not assert the return-receipt-

request deficiency in the memorandum of law they submitted to the trial court

on October 19, 2017, in support of their motion to dismiss. Rather, the only

argument in the memorandum pertaining to the NOI is that it did not disclose

the actual lender, which seems to be a reiteration of the standing/merger issue.

Furthermore, the trial court's statement of reasons for denying defendant's

motion to dismiss makes no mention of a dispute with regard to the method by

which the NOI was served. To the contrary, as we have already noted, the

judge's statement of reasons finds that the NOI had been "mailed by certified

mail, return receipt requested" as if that were an undisputed fact, as plaintiff had

asserted.

      In these circumstances, and despite defendants' failure to include this

argument in their memorandum of law, we believe that the trial court was on

notice that the method of service was disputed by reason of the defendants '

October 19, 2017, objections to the plaintiff's statement of undisputed facts. The

court therefore should not have accepted the plaintiff's unsupported claim that

the NOI had been sent by certified mail, return receipt requested. See footnote

1 (explaining that the trial court viewed defendants' motion to dismiss as a

reiteration of their opposition to plaintiff's motion for summary judgment, which


                                                                            A-5141-17T1
                                        12
ought not have been granted if a material fact was disputed). We nonetheless

appreciate that as a practical matter, the trial court had no way to know that

defendants were relying on the defective-service argument as a basis for

dismissing the foreclosure complaint. Having submitted a memorandum of

law/brief in support of their motion, it was incumbent upon defendants to present

this argument in the memorandum, or at least mention it.

      Even if we were to conclude that the issue was not properly raised before

the trial court as part of defendants' motion to dismiss, we would decline to hold

that defendants waived their right to challenge the foreclosure based on

plaintiff's noncompliance with the FFA. Plaintiff cites to N.J. Div. of Youth &

Family Services v. M.C. III, 201 N.J. 328 (2010), for the general proposition

that "issues not raised below will ordinarily not be considered on appeal unless

they are jurisdictional in nature or substantially implicate the public interest."

Id. at 339. We agree, of course, that this is the general rule governing appellate

practice. However, an issue not raised below may be considered if it meets the

plain error standard, or is otherwise of special significance to the public or the

goal of achieving substantial justice. See e.g., State v. Romero, 191 N.J. 59, 80

(2007). Furthermore, the general rule need not apply where an issue was raised

in the trial court but the argument before the trial court was based on a different


                                                                           A-5141-17T1
                                       13
theory from that advanced in the appellate court. See Docteroff v. Barra Corp.

of America, Inc., 282 N.J. Super. 230, 237 (App. Div. 1995).

      In this instance, we find that the exception expressly recognized in the

case that plaintiff relies upon, M.C. III, applies. As the case law makes clear,

strict compliance with the FFA's procedural provisions is required precisely

because those requirements substantially implicate the public interest.          In

Chaudhri, we held in this regard that,

            [t]he Legislature specifically intended that lenders
            faithfully comply with the FFA provisions and
            articulated that "[w]aivers by the debtor of rights
            provided pursuant to [the FFA] are against public
            policy, unlawful, and void, unless given after default
            pursuant to a workout agreement in a separate written
            document signed by the debtor." N.J.S.A. 2A:50-61.
            Accordingly, courts are not free to deviate from the
            unambiguous statute.

            [400 N.J. Super. at 139].

      In view of the precedents that require us to strictly enforce the FFA notice

requirements, coupled with the explicit text of the FFA that does not allow for

the implied waiver of its procedural protections, see N.J.S.A. 2A:50-61, we are

not prepared to hold that pro se defendants relinquished those protections

because they failed to re-assert the statutory violation in their motion to dismiss




                                                                           A-5141-17T1
                                         14
after having characterized it as an affirmative defense in the pleadings stage. 5

Because the record before us does not establish that plaintiff complied with the

FFA when it served notice of its intention to foreclose, and does not otherwise

establish that defendants actually received it, we are constrained to reverse the

grant of summary judgement for plaintiff and remand with instructions to

dismiss the foreclosure complaint, without prejudice. We note that this remedy

has no effect on the underlying contractual obligations of the parties and our

ruling does not bar reinstitution of the same claims in a later action.             See

Chaudhri, 400 N.J. Super. at 140.

                                         IV.

      In view of our decision to dismiss the foreclosure complaint, without

prejudice, we need only briefly address defendants' argument that plaintiff failed

to present competent, admissible evidence of a merger between Wells Fargo and


5
   We recognize that as a general matter, a defense or issue raised in the initial
pleadings is waived if the party fails to litigate the issue after the pleadings stage.
See Mancini v. Twp. of Teaneck, 179 N.J. 425, 433 (2004) ("A mere one-time
mention of laches in a defendant's answer is insufficient to preserve it through
the span of litigation."); Williams v. Bell Tel. Laboratories Inc., 132 N.J. 109,
118 (1993) (defendant "waived the statute-of-limitations defense by its failure
to assert that defense at any stage of the proceedings after pleading t he statute
in its [a]nswer."). In the circumstances of this case, we view this general
principle, like the one set forth in M.C. III, to be subject to the caveat that an
issue need not be deemed to have been waived if that issue substantially
implicates the public interest.
                                                                               A-5141-17T1
                                         15
Wachovia. We are satisfied that the trial court did not abuse its discretion when

it accepted a certification from the Wells Fargo Vice President for Loan

Documentation, in support of plaintiff's assertion that it was in possession of the

note prior to the filing of the foreclosure action by reason of the merger of Wells

Fargo and Wachovia Bank. The certification, the court found, established the

basis of the affiant's knowledge, identified the source of the knowledge, and

authenticated the attached documents. The court also found that the certification

satisfied the business records exception to the hearsay rule under N.J.R.E.

803(c)(6).

      A trial judge's evidentiary decisions made in the context of a summary

judgment application are reviewed under the abuse of discretion standard.

Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).

In view of the trial judge's thorough and well-reasoned analysis, we have no

basis to disturb his conclusion that plaintiff acquired the loan as a result of the

Wells Fargo-Wachovia merger and therefore had standing to bring the

foreclosure action. We would only add, from an equity perspective, that it is

not disputed that defendant entered into an Installment Loan Modification

Agreement with Wells Fargo in April 2011 – after the merger was completed.

Having negotiated with Wells Fargo to modify the loan terms, defendants are


                                                                           A-5141-17T1
                                       16
hard pressed to argue that Wells Fargo had not acquired the loan and the right

to enforce it.

      To the extent that we have not specifically addressed any arguments raised

by the parties, we find they lack sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Reverse and remand. We do not retain jurisdiction.




                                                                        A-5141-17T1
                                       17
