FILED Mar 18, 2013 RALPH F. CASALE & ASSOCIATES, LLC DENVILLE LAW CENTER 290 ROUTE 46 WEST DENVILLE, NEW JERSEY 07834 973-586-2300 Facsimile 973-585.2907 PLAGSINA@CAPLAW.NET Merch 12, 2013 Hon. Mary Eva Colaiilo Chancery Division, General Equity Part (Presiding) (Camden County Superior Court Hall of Justice 401 S. Sth St Camden, NJ 08103-4001 : Re: Deutsche Bank National Trust Company, a8 Trustee for Argent Securties Inc., Asset-Backed Pass-Through Cerificates, Series 2003-W5 v. KOEHLER JR GEORGE A, PATRICIA J DOCKET NO. F-006306-11 Dear Judge Colalllo ‘We represent plaintif in the above-captioned matter. Please kindly accept this letter brief in lieu of ‘8 more formal Opposition to defendant's Motion for @ downward reduction in attorney's fees. Plaintiff respectfully submits that defendants Motion be denied in its entirety, Summary of Parties’ Positions Briefly, this matter was previously contested. Plaintiffs Summary Judgment was heard on January 6, ‘2012 buta decision was delayed due tothe ther-pending Guillaume case. Defendants contested Answer was later withdrawn in exchange for mediation Defendant asserts R. 4:42-9(a)(4) controls attorneys fees. This Rule allows, but limits, the amount of etiomey’s fees a motgagee can recover in foreclosure Defendant's Motions based on the language of he Rule, the Faire Foreclosure Act, and case law. Plaintiff respectfully submits that R 4 42-9(a)4) does not appy to defendants who have contested the foreciosure matter but cure default prior to judgment. Rather, the “ceasonable atlorney’s fees clause in the Note executed by defendant controls.| | LEGAL ANALYSIS : ‘Statutory construction, case law, and equilable principles supports plaini's positon 1, R.4:42.9(A)(8) APPLIES ONLY TO ATTORNEY'S FEES IN FINAL JUDGMENT Fist, satutory consructon and structure of 4:42-(a)(4) clear indicates his Rule exclusively apples to attorney's fes at dgment. When arayzing a slate, “were is need to Keepin view... the structure of he statute and the relation .. between its several parts” Coooet Hosp. Unversty Media! Center v. Prudential ins, Co.. 378 N.J.Super. 510, 514 (App. Div. 2008)(citing Duparquet Huol & Moneuse Co, 1 vw. Evans, 297 U.S. 216, 218 (1936)}(emphasis added). ! Here, defendant cites a Rule found in the “Judgment” chapter ofthe New Jersey Rules of Court, The Rule is found under the "Judgment; Order; Qamages: Costs Section and contains eleven individual Rules and ‘numerous sub-ules. , 4:42. AS the titles of these chaplers and sections express, these Rules sand sub- rules are related to the procedural and substantive law governing Judgments. Moreover, the Rules govering costs and fees under R, 44-2 contemplate direct adjudication by the Court Applying the foregoing analysis to the instant facts, plinif respectfully submits that R, 4:42 is not witin the scope of prejudgment loan reinstatements. Firs, this matter isnot in Judgment, so aplication of ‘any Rules under section 44.2 is premature. Second, defendants reinstatement of the foan is not subject to ‘an adjudicatve process, as athe other R 44-2 costs and fees rules are. Rather, plant respectiully submits that einstatement ofthe defauttes loan is @ non-usicial and private transaction between the parties governed by the instant Note and Mortgage “Therefore, 8 4:42-9(a(4) cannot apply to this mater becouse Judgment has not been entered and he loan's reinstatement is between the partes without judicial intervention I, APPLYING R, 4:42.9(a)(4) TO A PRE-JUDGMENT REINSTATEMENT DOES NOT ‘GUARANTEE THE MORTGAGE WILL BE DISCHARGED ‘Second, case law indicates applying R. 4:42-9(a)(4) to @ pre-udginent reinstatement in a contested Ioreciosure case does not guarantee the mortgage willbe discharged. This actually runs the isk of crouding defendant’ tiie iMortgagees who make advances during the life ofthe loan above the orignal secured amount are not obligated te discharge the merigage when only that ariginel amount is tendered. See Goldome Realty Credit Corp. Harwick, 296 N.L.Super. 118, 124-125 (Ch. Ov. 1988)(emphasis added). Assuming arquendo that 4:42-6(9)(4) did apply in the instant case, i would merely control the amount required to reinstate the loan Pursuant to Goldome, the balance of the attorney's fees above the stalutory cap would be required to utimately clscharge the merlgage ‘Therefore, defendants Motion should be denied because applcatioh off. 442-94 lopre judgment loan reinstatements presents unreasonable risk to tite, ll APPLYING R. 4:42-9(2)(4) TO PRE-JUDGMENT REINSTATEMENT VIOLATES PRINCIPLES OF FUNDAMENTAL FAIRNESS Finaly, undamenalaess miliates infor of plitits poslion Cappngpreudament atone’ fes onreinstatement woulsrendérsecous inequities agains plintt ose defendants woul be ina postion to contest each foreclosure insted as a esut of he own defaut force paint to itigate the case up to judgment, and then reinstate the oan wit relative pecuniary impunty Moreover, Such a scenario would be capable of reptton, yet evade review due to the prejudgment reinstaement, Thisis clearly inequitable because plant would incur great expenses ove ie in protecting its own colateralin contested cases while defendant would be only marginal Sable for tnese cost. “Thus, th Motion should be denied because ofthe inherent inequities underlying defendant's position. CONCLUSION Therefore, for the foregoing reasons, plaintif respectfully requests that defendant's Motion be denied Respectuly Yours, RALPH F CASALE & ASSOCIATES, LLC ov PATRICK O.JACSINA PoUrte ccc: Mr. Jeffrey Garbowski, EsqRALPH F. CASALE & ASSOCIATES, LLC 290 ROUTE 48 WEST DENVILLE, NEW JERSEY 07834 \ 973.664.9700 ATTORNEYS FOR PLAINTIFF Deutsche Bank Natonal Trust Company, as Trustee for Argent ‘Secures Inc, Asset-Backed Pass-Through Cerificates, Series 2003.5 PaintitiMongagee ‘SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION CAMDEN COUNTY GEORGE A KOEHLER; PATRICIA J. KOEHLER DOGKET NO. F-008308-11 Detendant(s)Mortgagor(s) ‘An original and three (3) copies ofthe within Opposition has been fled withthe Clerk of the County of ‘CAMOEN at the Court House, CAMDEN, New Jersey. Pack ©, Lacsina PROOF OF MAILING: On March 13, 2013 , |, the undersigned, mailed by.Cerlfied Mail, return receipt requested, the Opposition {The return receipt card is attached to the orginal hereof, if avaliable) to: MR. JEFF A. GARBOWSK(, ESQ, PO BOX 804 VOORHEES, Nu 08043 attorney for GEORGE A KOEHLER | cetity thatthe foregoing statements made by me are true. !em aware that ifany ofthe forgoing statements made by me are willy false, | am subject to punishment. Ve—_ Patrick O, Lacsina Dated: March 13, 2013