WAGE GARNISHMENT - LAWYER IN HUDSON COUNTY NEW JERSEY (201) 646-3333

 

PETER DALEDDA, Plaintiff-Appellant,
v.
LORETTA GUARDINO, Defendant-Respondent.

No. A-3215-15T3.
Superior Court of New Jersey, Appellate Division.

Argued August 1, 2017.Decided August 17, 2017.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FM-02-1937-10.

Jenny Berse argued the cause for appellant.

Francesca S. Blanco argued the cause for respondent.

Before Judges O'Connor and Whipple.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM.

Plaintiff appeals from a March 22, 2016 Family Part order denying his motion for reconsideration. We affirm for the reasons that follow.

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Plaintiff and defendant were married on June 21, 1987, and had one child. The couple divorced March 8, 2011, entering into a property settlement and support agreement (the agreement). The agreement obligates plaintiff to pay defendant $42,500 per year in permanent alimony in equal installments of $817.31 per week. The agreement states plaintiff was fifty-two years of age at the time of the divorce and worked as an executive chef in New York City, making a salary of $180,400 per year. He also had a 401K savings plan through his employer and an Individual Retirement Agreement (IRA). Defendant had worked as a secretary, earning $20,800 annually, but was unemployed at the time of the divorce. She also had an IRA. The parties agreed to an equal equitable division of the marital portions of the various retirement and other accounts.

In March 2015, plaintiff lost his job. In June 2015, he stopped paying his alimony obligation. Defendant moved to enforce litigant's rights in July 2015. Plaintiff cross-moved seeking to terminate his alimony obligation, revisit his alimony obligation upon obtaining employment, and emancipate the parties' child.

On September 30, 2015, the Family Part judge found plaintiff's unemployment to be temporary in nature, denied modification, and issued an order requiring plaintiff to pay defendant $11,442.34 in alimony arrears and $2100 in child support arrears within fourteen days and to resume regular payments. The Family Part judge also denied emancipation of the parties' child.

On October 9, 2015, plaintiff moved for reconsideration of the September 30, 2015 order. In October 2015, plaintiff secured a new position earning $114,000 per year. On December 2, 2015, the Family Part judge entered an order granting plaintiff's motion for reconsideration in part, granting plaintiff's request for emancipation of the parties' child, denying plaintiff's request for modification of alimony, and denying both parties' requests for counsel fees. The Family Part judge discredited the discrepancy in income between plaintiff's former position and his new position, noting the cost of living in Florida, where plaintiff resides, is lower than in New Jersey/New York, and plaintiff's $114,000 per year salary was not in and of itself prima facie evidence he was unable to earn what he previously earned to establish changed circumstances.

Defendant received no alimony payments from plaintiff and filed another motion on December 8, 2015, seeking wage garnishment and probation monitoring. Plaintiff again moved for modification of alimony. On March 22, 2016, the Family Part judge granted defendant's request for wage garnishment and probation monitoring and ordered plaintiff to make a lump sum payment of $11,442.34 within thirty days. Plaintiff appealed from the March 22, 2016 order. On appeal, plaintiff argues the court erred by denying modification of alimony and requests the matter be remanded to a different judge; plaintiff also contends he should be awarded counsel fees. We disagree and affirm.

Appellate review is particularly deferential to family courts' findings of fact because of their unique expertise. Cesare v. Cesare, 154 N.J. 394, 413 (1998). However, "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990); Dolson v. Anastasia, 55 N.J. 2, 7 (1969); Pearl Assurance Co. Ltd. v. Watts, 69 N.J. Super. 198, 205 (App. Div. 1961)).

Plaintiff asserts the record does not support the judge's determination and factual findings because the judge took no testimony and overlooked the parties' agreement, the applicable statutory factors, case law, and the substantial change in plaintiff's circumstances. He asserts he is entitled to a plenary hearing.

As noted above, plaintiff appeals only the motion for reconsideration and not the original order. See Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div.) (citing Pressler, Current N.J. Court Rules, cmt. 6 on R. 2:5-1(f)(3)(i) (2002)) (explaining this court only considers judgments and orders listed in a notice of appeal), certif. denied, 174 N.J. 544 (2002). Accordingly, we review for an abuse of discretion. Ibid. We also note "[m]otions for reconsideration are granted under very narrow circumstances." Ibid.

Reconsideration should be used only for those cases which fall into that narrow corridor in which either (1) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); R. 4:49-2).]

We discern no abuse of discretion on the part of the Family Part judge. As the judge correctly explained, when a party seeks to modify any support obligation under an agreement, the party must demonstrate "changed circumstances" supporting such a modification. See J.B. v. W.B., 215 N.J. 305, 327 (citing Lepis v. Lepis, 83 N.J. 139, 146-48 (1980)). A reduced income may qualify as "changed circumstances." Ibid. Family Part judges, however, have considerable discretion in determining whether a changed circumstance warrants an alimony modification. Larbig v. Larbig, 384 N.J. Super. 17, 23 (App. Div. 2006). This discretion turns on a Family Part judge's "experience as applied to all the relevant circumstances presented." Ibid. We further note the party seeking modification has the burden of demonstrating such changed circumstances as would warrant relief from his or her obligation. Lepis, supra, 83 N.J. at 157. When a supporting spouse brings an application for a downward modification, the central focus is on "the supporting spouse's ability to pay." Miller v. Miller, 160 N.J. 408, 420 (1999).

Although the judge noted plaintiff's reduced income, he also noted the reduced reported income did not appear to be a permanent circumstance. In order to prove changed circumstances, the change must be permanent. Lepis, supra, 83 N.J. at 151. Accordingly, we conclude the Family Part judge's decision was not based on a palpably incorrect basis.

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Plaintiff's income at the time of the agreement was $180,000. Plaintiff asserts his current income from his new job is thirty-seven percent lower, but plaintiff has not demonstrated he cannot earn more. "Courts have consistently rejected requests for modification based on circumstances which are only temporary." Ibid. The issue is whether changed circumstances are enduring enough to warrant a modification. In other words, plaintiff must demonstrate his decline in income and his ability to earn are permanent. The motion judge correctly concluded plaintiff's evidence did not evince a showing of permanent changed circumstances. Accordingly, there was no basis upon which the Family Part was required to conduct a plenary hearing. See id. at 157 (explaining a court should hold a plenary hearing if "a party clearly demonstrate[s] the existence of a genuine issue as to a material fact").

We also conclude the court appropriately considered all of the relevant probative and competent evidence. See D'Atria, supra, 242 N.J. Super. at 401. The trial court reviewed plaintiff's submissions and found plaintiff did not demonstrate his earning capacity had substantially changed since the time the parties' executed agreement. We find no error on the judge's part in this regard.

Plaintiff's argument the Family Part judge disregarded the provision in the agreement permitting an application to modify it is unpersuasive. Plaintiff was permitted to, and did, make such an application, but he fell short of the proofs required to establish changed circumstances. Moreover, we reject the argument plaintiff is entitled to a modification merely based on defendant's employment status.

In light of our decision, we need not address plaintiff's argument for a new judge to hear this matter. Plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(11)(E).

Affirmed.

CHAPTER 13 ATTORNEY - HACKENSACK NEW JERSEY (201) 646-3333

 

MICHAEL BANDLER, Plaintiff-Appellant,
v.
GEORGE KOSTAS, Defendant-Respondent.

No. A-2650-19.

Superior Court of New Jersey, Appellate Division.

Argued February 11, 2021.Decided March 3, 2021.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2515-18.

Michael Bandler argued the cause pro se.

Joseph P. McGroarty argued the cause for respondent (Fitzgerald McGroarty attorneys; Joseph P. McGroarty on the brief).

Before Judges Mawla and Natali.

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.

PER CURIAM.

Plaintiff Michael Bandler appeals from a January 14, 2020 order denying his application to stay the proceedings on his fraud-based complaint against defendant Joseph McGroarty because he filed a Chapter 13 bankruptcy petition. He also appeals a February 25, 2020 order dismissing the complaint without prejudice for his failure to appear for trial. Because the orders under review are not final, we dismiss the appeal as interlocutory.

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Plaintiff obtained a $10,000 judgment against defendant's daughter and subsequently discovered that she owned a vehicle, later sold, which would have partially satisfied the judgment. After post-judgment discovery, where defendant initially stated that the vehicle was transferred to him, and then later admitted it was not, plaintiff filed a complaint alleging fraud. In defendant's answer, he denied all the allegations and asserted twelve affirmative defenses, including an assertion that "plaintiff's claims against [defendant] are frivolous in nature and in violation of N.J.S.A. 2A:15-59 and... Rule 1:4-8(b) and therefore plaintiff should be sanctioned."

On November 4, 2019, plaintiff filed for Chapter 13 bankruptcy protection. A few days after his petition was filed, plaintiff attended a previously scheduled arbitration but refused to participate.

On December 23, 2019, plaintiff filed an application to stay the proceedings pursuant to United States Bankruptcy Code, 11 U.S.C. § 362(a), arguing that the automatic stay applied because defendant's affirmative defense seeking counsel fees was "a claim against the bankruptcy estate." Judge James P. Savio denied plaintiff's motion in a January 14, 2020 order. In his accompanying written statement of reasons, the judge explained that plaintiff was not entitled to a stay because "[s]ection 362 is only applicable where a judgment is rendered against a debtor, not suits by a debtor." The court further stated that "[a] bankruptcy judgment would have no bearing on a [p]laintiff bringing a claim, as any potential award would not be forthcoming from the [p]laintiff but rather from a defendant."

Plaintiff failed to appear for the February 24, 2020 trial believing that if he attended the proceedings, he would be in violation of the automatic stay. He also asserts in his merits brief that he had "contacted the court several times, seeking a delay in the trial, without success." On February 25, 2020, Judge Savio dismissed plaintiff's complaint without prejudice for lack of prosecution, a remedy expressly permitted by Rule 1:2-4(a).^[1]

On appeal, plaintiff maintains that the judge's January 14, 2020 order refusing to stay the trial proceedings under 11 U.S.C. § 362(a) was erroneous. He also argues that Judge Savio's February 25, 2020 order dismissing his complaint was improper as the automatic stay provision prevented the court from scheduling trial and entering the dismissal order.

We first address the finality of the trial court's January 14, 2020 and February 25, 2020 orders. The Rules that warrant dismissal of interlocutory appeals are clear. We consider appeals from final orders of a trial court and other orders expressly designated as final for purposes of appeal. R. 2:2-3(a)(1), (3). "To be a final judgment, an order generally must `dispose of all claims against all parties.'" Janicky v. Point Bay Fuel, Inc., 396 N.J. Super. 545, 549-50 (App. Div. 2007) (quoting S.N. Golden Ests., Inc. v. Cont'l Cas. Co., 317 N.J. Super. 82, 87 (App. Div. 1998)). This "final judgment rule[] reflects the view that `piecemeal [appellate] reviews, ordinarily, are [an] anathema to our practice.'" Janicky at 550 (all but first alterations in original) (quoting S.N. Golden Ests., 317 N.J. Super. at 87).

If an order is not final, or among those orders expressly designated as final for purposes of appeal, a party must seek leave to appeal from the Appellate Division. R. 2:5-6(a). A grant of leave to appeal from an interlocutory order is left to the discretion of this court, and that discretion is exercised sparingly and "in the interest of justice." R. 2:2-3(b); R. 2:2-4; Janicky, 396 N.J. Super. at 551. It is clear that we will not decide an appeal from an interlocutory order merely because the appellant's notice of appeal mischaracterized the order, the respondent did not move to dismiss, or the appeal was "fully briefed." Vitanza v. James, 397 N.J. Super. 516, 519 (App. Div. 2008).

Here, the orders under review were not final as they did not resolve all issues against the parties. Further, the February 25, 2020 dismissal order was expressly without prejudice.^[2] A dismissal without prejudice is generally not a final order from which an appeal as of right can be taken. Kwiatkowski v. Gruber, 390 N.J. Super. 235, 237 (App. Div. 2007) (order dismissing plaintiff's complaint without prejudice pursuant to Rule 4:23-5 is not a final order). Further, "if a dismissal without prejudice is entered under a particular rule that itself provides for vacation of the dismissal... the order of dismissal may not be appealable unless vacation is first sought." Pressler & Verniero, Current N.J. Court Rules, cmt. 2.2.4 on R. 2:2-3 (2021).^[3]

We recognize that we may, in appropriate cases, grant leave to appeal nunc pro tunc. R. 2:4-4(b)(2); see e.g., Yuhas v. Mudge, 129 N.J. Super. 207, 209 (App. Div. 1974) (granting leave to appeal nunc pro tunc "in the interest of prompt disposition of the matter"). However, such relief is not automatic and should not be presumed as granting leave to appeal nunc pro tunc is "most extraordinary relief." Hallowell v. Am. Honda Motor Co., 297 N.J. Super. 314, 318 (App. Div. 1997) (quoting Frantzen v. Howard, 132 N.J. Super. 226, 227-28 (App. Div. 1975)). In dismissing an appeal as interlocutory after it was fully briefed, we stated:

[I]f we treat every interlocutory appeal on the merits just because it is fully briefed, there will be no adherence to the Rules, and parties will not feel there is a need to seek leave to appeal from interlocutory orders.

At a time when this court struggles to decide over 7,000 appeals a year in a timely manner, it should not be presented with piecemeal litigation and should be reviewing interlocutory determinations only when they genuinely warrant pretrial review.

[Parker v. City of Trenton, 382 N.J. Super. 454, 458 (App. Div. 2006) (citations omitted).]

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We are convinced that the interests of justice do not warrant consideration of plaintiff's interlocutory appeal from the trial court's orders of January 14, 2020 and February 25, 2020. R. 2:2-3(b); R. 2:2-4. In sum, we conclude the January 14, 2020 and February 25, 2020 orders were not final orders. We also decline to treat plaintiff's improvidently filed appeal as a request for leave to appeal nunc pro tunc as there is nothing about the issues on appeal that warrant such "extraordinary" relief. See Hallowell, 297 N.J. Super. at 318.

Appeal dismissed without prejudice.

[1] The parties have not included in the record a copy of the transcript from the February 24, 2020 proceeding.

[2] Plaintiff's notice of appeal and corresponding case information statement incorrectly state that the court's February 25, 2020 order was not a without prejudice dismissal.

[3] We acknowledge that unlike Rules 1:13-7(a) and 4:23-5(a), Rule 1:2-4(a) does not, itself, specify the procedures for reinstating a dismissal without prejudice. See, e.g., Scalza v. Shop Rite Supermarkets, 304 N.J. Super. 636, 638 (App. Div. 1997). We are satisfied, however, that such a remedy is clearly contemplated by that Rule. Indeed, defendant conceded at oral argument that neither Rule 1:2-4(a), nor the court's February 25, 2020 order, precluded plaintiff from filing such an application, subject to defendant's opposition.

CHAPTER 7 ARTICLE - BANKRUPTCY ATTORNEY IN HUDSON COUNTY NEW JERSEY (201) 646-3333

 

JOAN MARIE HOFFMAN, Plaintiff-Appellant,
v.
J.P. MORGAN CHASE and CALIBER HOME LOANS, Defendants-Respondents.No. A-4566-17T4.Superior Court of New Jersey, Appellate Division.

Argued telephonically May 13, 2019.Decided June 5, 2019.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. C-012005-18.

Joan Marie Hoffman, appellant, argued the cause pro se.

Robert T. Yusko argued the cause for respondent Caliber Home Loans (Perkins Coie LLP, attorneys; Robert T. Yusko, on the brief).

Eva K. Carey argued the cause for respondent J.P. Morgan Chase Bank (Bertone Piccini, LLP, attorneys; Eva K. Carey, of counsel and on the brief).

Before Judges Fasciale and Rose.

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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.

PER CURIAM.

Plaintiff appeals from two orders: an April 30, 2018 order dismissing the amended complaint against defendant Caliber Home Loans (Caliber); and a June 8, 2018 order dismissing the complaint against defendant JPMorgan Chase Bank, N.A. (Chase), improperly pled as J.P. Morgan Chase. Judge Margaret Goodzeit entered the orders and rendered comprehensive and thorough opinions. We affirm.

Almost eleven years ago, a bank instituted a residential foreclosure complaint against plaintiff, who immediately filed an answer contesting the bank's allegations. In November 2009, the bank obtained final judgment, which the court amended. The Sheriff then scheduled the sale of the property. Thereafter, plaintiff filed a Chapter 13 petition, which stayed the sale. The bankruptcy court dismissed the petition in October 2016, and although the Sheriff re-listed the sale, plaintiff stayed it again by filing a Chapter 7 petition. The bankruptcy court lifted the stay, refusing to stay the sale any further, despite multiple applications by plaintiff.^[1] Plaintiff filed this complaint in January 2018, and the Sheriff sale of the property occurred in June 2018.

In this complaint, plaintiff alleged she proposed to redeem the property in March 2010, Chase failed to respond, Caliber became the servicer of the loan in July 2015, and Caliber provided a pay-off figure to plaintiff in November 2017. The judge entered the orders under review dismissing the complaint under Rule 4:6-2(e), the entire controversy doctrine (ECD), res judicata, and collateral estoppel.

On appeal, plaintiff argues the judge erred by dismissing the complaint by relying on the ECD. Indeed, her merits brief focuses solely on the ECD, although at oral argument before us, she contended that the judge erroneously relied on the other bases for dismissing this case. Plaintiff urges us to reverse the orders and award her damages.

We conclude that plaintiff's contentions are without sufficient merit to warrant attention in a written opinion. R. 2:11-3(e)(1)(E). We reach that conclusion even considering plaintiff's new arguments on appeal, on the record that she expanded without court order. We affirm substantially for the reasons expressed by Judge Goodzeit.

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Affirmed

[1] Plaintiff filed at least three other bankruptcy petitions, seeking further stays of the sale. The bankruptcy court dismissed the petitions and denied each of her requests to stay the sale of the property.

FORECLOSURE ARTICLE - LAWYER IN ESSEX COUNTY NEW JERSEY (201) 656-3333

 

DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-QSI4, Plaintiff-Respondent,
v.
Debbie A. WEINER and Clifford R. Weiner, Defendants-Appellants.

DOCKET No. A-2110-17T4.
Superior Court of New Jersey, Appellate Division.

Submitted October 23, 2018.Decided November 8, 2018.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-026288-16.

Christopher D. Ferrara LLC, attorneys for appellants (Christopher D. Ferrara, on the brief).

Blank Rome LLP, attorneys for respondent (Michael P. Trainor, on the brief).

Before Judges Fisher, Geiger and Firko.

122The opinion of the court was delivered by

FISHER, P.J.A.D.

For many years, New Jersey lacked a statute of limitations for residential foreclosure actions. Instead, for more than a century, our courts applied the time-bar used in adverse possession actions: twenty years. See Depew v. Colton, 60 N.J. Eq. 454, 464, 46 A. 728 (E. & A. 1900); Security National Partners L.P. v. Mahler, 336 N.J. Super. 101, 106-07, 763 A.2d 804 (App. Div. 2000). In 2009, the Legislature made up for lost time and enacted N.J.S.A. 2A:50-56.1, which codified Security National Partners^[1] by declaring that a residential foreclosure action "shall not be commenced following the earliest of" three points in time:

• Six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a);

• Thirty-six years from the date the mortgage was recorded or, if not recorded, from the date of execution, N.J.S.A. 2A:50-56.1(b); and

• Twenty years from the date of a default that "has not been cured," N.J.S.A. 2A:50-56.1(c).^[2]

Defendants' contention that N.J.S.A. 2A:50-56.1(a)'s six-year time-frame applies and bars this foreclosure action, which was filed seven years after their uncured default, is without merit.

The record reveals that defendant Debbie A. Weiner borrowed $657,500 from Weichert Financial Services in 2005 and then executed in Weichert's favor a promissory note that required monthly payments, 123the last of which was scheduled for June 2035. To secure the note's repayment, both defendants executed a mortgage that was recorded in 2005 and ultimately assigned to plaintiff Deutsche Bank Trust Company Americas.^[3]

There is no dispute that defendants failed to make a scheduled August 2009 payment and all later monthly payments. After four discontinued suits, Deutsche Bank commenced this foreclosure action in September 2016, more than seven years after defendants' uncured default.

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The parties eventually cross-moved for summary judgment. The judge granted Deutsche Bank's motion, denied defendants' motion, and later denied defendants' motion for reconsideration. Once final judgment was entered in December 2017, defendants filed this timely appeal, arguing: (1) summary judgment should not have been entered because discovery was incomplete and there were genuine disputes about Deutsche Bank's claim, its standing to sue, and its status as a holder; (2) their answer should not have been stricken; and (3) the complaint was barred by the statute of limitations. We reject these arguments and affirm.^[4]

In arguing the action was time-barred, defendants claim the six-year time frame in subsection (a) was triggered in 2009 when their default triggered the loan's acceleration. We disagree. Subsection (c) specifically provides a time frame to be considered upon an uncured default. To interpret subsection (a) as triggering the same event encompassed by subsection (c) would wreak havoc with the clearly delineated provisions of N.J.S.A. 2A:50-56.1. We refuse to inject such confusion into what the Legislature carefully planned when it adopted this multi-part statute of limitations.

Defendants' interpretation would also require that we ignore subsection (a)'s plain language. That provision declares that the six-year period runs from the date of the last payment or the maturity date "set forth in the mortgage or the note." N.J.S.A. 2A:50-56.1(a). June 1, 2035 was the date "set forth" in the note and mortgage here, and that date is the one and only date that triggers the six-year period in subsection (a). There is no ambiguity; that conclusion is what the plain language of the statute compels. See DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Any other conclusion would mangle the Legislature's carefully phrased statute. State v. Clarity, 454 N.J. Super. 603, 608, 186 A.3d 919 (App. Div. 2018).

In short, the three events described in subsections (a), (b), and (c) of N.J.S.A. 2A:50-56.1, were scheduled to occur in 2041 (six years after the 2035 maturity date), 2041 (thirty-six years after the 2005 recording of the mortgage), and 2029 (twenty years from defendants' uncured 124 default), respectively. Since the earliest has yet to occur, this suit, commenced in September 2016, was not time-barred.^[5]

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Affirmed.

[1] See Assemb. Fin. Insts. & Ins. Comm. Statement to S. No. 250 — L. 2009, c. 105 (Oct. 6, 2008).

[2] For brevity's sake, we have omitted statutory language from the descriptions of each subsection that has no bearing here.

[3] The mortgage was first assigned to Deutsche Bank Trust Company Americas, as trustee for certain certificate holders, in 2009, and later assigned to Deutsche Bank, as trustee for Residential Accredit Loans, Inc., 2005-QS14, the plaintiff here, in 2013. The assignments were duly executed and recorded.

[4] We find insufficient merit in defendants' first two points to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only as to the first that, in moving for summary judgment, Deutsche Bank provided undisputed evidence that it was in possession of the note, which was endorsed to it, and that the mortgage assignments were duly executed and recorded. See Deutsche Bank Trust Co. v. Angeles, 428 N.J. Super. 315, 318, 53 A.3d 673 (App. Div. 2012).

[5] Although not raised, we assume N.J.S.A. 2A:50-56.1 applies to defendants' argument that Deutsche Bank's suit was untimely even though the statute did not become effective until August 6, 2009, approximately the same time as defendants' default. Even if the statute had no application here, the result would be the same, since the pre-statute twenty-year time-bar described in Colton and Security National Partners would allow for the maintenance of this suit.

MORTGAGE ARTICLE - BANKRUPTCY LAWYER IN HUDSON COUNTY NEW JERSEY (201) 646-3333

CAPITAL ONE, N.A., Plaintiff-Respondent,
v.
James I. PECK, IV, Defendant-Appellant.

Docket No. A-0582-16T4.
Superior Court of New Jersey, Appellate Division.

Argued April 25, 2018.Decided June 18, 2018.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-005201-13.

Nicolas A. Stratton argued the cause for appellant (Stratton Stepp, LLP, attorneys; Nicolas A. Stratton, on the brief).

Danielle Weslock argued the cause for respondent (McCarter & English, LLP, attorneys; Joseph Lubertazzi, Jr., of counsel and on the brief; Danielle Weslock, on the brief).

Before Judges Fuentes, Koblitz, and Manahan.

1106The opinion of the court was delivered by

KOBLITZ, J.A.D..

In this appeal of an August 26, 2016 final residential foreclosure judgment, defendant James I. Peck, IV^[1] contends that, after the promissory note, without the mortgage, was sold to Freddie Mac, and Capital One, N.A. (CONA) became the loan servicer on behalf of Freddie Mac, CONA could not foreclose on his home because it did not possess the note and a valid assignment of mortgage at the time it filed the complaint. He argues that only Freddie Mac had standing to foreclose. Although we agree that in these unusual circumstances where one entity owns the note and another the mortgage, both the note and a valid mortgage assignment are required to foreclose, we affirm in spite of certain irregularities.

Freddie Mac's form 10-K annual report pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 provides the following information. The Federal Home Loan Mortgage Corporation, known as Freddie Mac, is a government sponsored enterprise (GSE) chartered by Congress in 1970. Its public mission is to provide liquidity, stability and affordability to the United States housing market. It does this primarily by purchasing residential mortgage loans originated by lenders. It does not originate loans or lend money directly to mortgage borrowers. United States Securities and Exchange Commission, Form 10-K, "Federal Home Loan Mortgage Corporation," https://www.sec.gov/Archives/edgar/data/1026214/XXXXXXXXXXXXXXXXXX/a20174q10k.htm (last visited May 29, 2018).

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On March 10, 2005, defendant executed a promissory note to Chevy Chase Bank, F.S.B., (CCB) which was secured by a residential mortgage by Mortgage Electronic Registration Systems, Inc. (MERS), for $258,750.^[2] On July 28, 2005, CCB sold defendant's note to Freddie Mac, but retained 1107the mortgage. In July 2009, CCB converted to a national bank and merged with CONA. Defendant defaulted on the loan in 2010, and did not pay the mortgage or taxes after that date. The original mortgage states: "MERS is a separate corporation that is acting solely as a nominee for [l]ender and [l]ender's successors and assigns." MERS, which also states in the "Assignment of Mortgage" that it is "acting solely as nominee for [CCB], its successors and assigns," assigned the mortgage to CONA on February 9, 2011, more than one year after CCB merged into CONA.

At least since July 15, 2009, defendant received repeated notices that identified CONA as the servicer on the loan, although Freddie Mac remained the investor. Defendant also conceded that he made payments to CONA. In June 2012, the court dismissed without prejudice an earlier foreclosure proceeding initiated by CONA, F-003445-11, because CONA failed to comply with the court-ordered deposition of an employee who could provide information about possible mortgage irregularities. CONA brought the original note to court in that proceeding. The note was subsequently returned to Freddie Mac later in 2012.

On February 15, 2013, CONA initiated the present foreclosure proceedings. The court dismissed the contesting answer on June 9, 2015, and referred the case to the Office of Foreclosure for entry of final judgment as uncontested. R. 4:64-1. Defendant's motion for reconsideration was denied on May 5, 2016 and his subsequent motion for summary judgment was denied on November 25, 2016, after defendant's death.^[3] Defendant appeals from the entry of final judgment arguing that CONA lacked standing to foreclose.

Our review is de novo, applying the same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346, 157 A.3d 416 (2017). Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburg, 224 N.J. 189, 199, 129 A.3d 1069 (2016) (quoting R. 4:46-2(c)). If all the contesting pleadings have been stricken or otherwise deemed noncontesting, an action to foreclose a mortgage is deemed uncontested. R. 4:64-1(c)(3).

Defendant argues that because "Freddie Mac is the owner of [d]efendant's loan," it "is the only entity with the right to enforce the mortgage." He further argues that in order to validly assign a mortgage, the "assignment must contain evidence of the intent to transfer one's rights." (quoting K. Woodmere Assocs., LP v. Menk Corp., 316 N.J. Super. 306, 314, 720 A.2d 386 (App. Div. 1998)).

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The court found that the material facts in controversy involved standing, and were limited to possession of the original note, endorsement of the note, the transfer of the note from CCB to Freddie Mac, and CONA's right to enforce the note. The trial court concluded, "[I]t's clear . . . that a bearer of the note endorsed in blank is the holder of the note [ ] and entitled to enforce the note pursuant to N.J.S.A. 12A:3-301." Unquestionably, CONA had possession of the original note during the earlier foreclosure hearing in 2012.

In Mitchell, we held that a plaintiff may establish standing either through possession of the note or as an assignee under 108N.J.S.A. 46:9-9 "if it . . . presented an authenticated assignment indicating that it was assigned the note before it filed the original complaint." Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 224, 27 A.3d 1229 (App. Div. 2011). We emphasized this holding in Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318, 53 A.3d 673 (App. Div. 2012). Thus, a plaintiff need not actually possess the original note at the time of filing in order to have standing to file a foreclosure complaint. Mitchell, 422 N.J. Super. at 225, 27 A.3d 1229.^[4]

In both Mitchell and Angeles we dealt with the usual foreclosure situation where one entity owns both the note and the mortgage. As Judge William C. Todd, III said: "It is difficult to imagine circumstances where one would want to hold a mortgage, without having the right to act on the underlying debt. By the same token, there is no technical reason why the interests could not be separated in one way or another." Raftogianis, 418 N.J. Super. at 345, 13 A.3d 435. Here we have such a situation: where Freddie Mac owns the note and CCB, now merged into CONA, retained the mortgage. To preclude the possibility of one entity foreclosing on the home while the other enforces the note, we now hold that when the note is separated from the mortgage, the plaintiff in a foreclosure action must demonstrate both possession of the note and a valid mortgage assignment prior to filing the complaint.

Defendant concedes that Freddie Mac, as owner of the note, had the right to foreclose on defendant's home. Defendant argues, however, that the mortgage was not legally retained by CCB, but followed the note by force of law. We reject that analysis. The issue is whether CONA, both the successor owner and assignee of the mortgage, and the loan servicer, had the right to foreclose. "Foreclosures must normally be processed or litigated in the [s]ervicer's name." Freddie Mac, Bulletin Number 2013-22, http://www.freddiemac.com/singlefamily/guide/bulletins/pdf/bll1322.pdf (October 18, 2013). Freddie Mac's requirement that the servicer of the loan litigate a foreclosure in the servicer's name supports CONA's assertion regarding its authority to bring a foreclosure action.

Standing is not a jurisdictional issue in New Jersey. Deutsche Bank Nat'l Tr. Co. v. Russo, 429 N.J. Super. 91, 101, 57 A.3d 18 (App. Div. 2012). Depending on the equities of the particular proceeding, a foreclosure judgment may not be reversed, even if some irregularities in the foreclosure process are demonstrated by the defendant. See Angeles, 428 N.J. Super. at 320, 53 A.3d 673 ("In foreclosure matters, equity must be applied to plaintiffs as well as defendants.").

Here, MERS as nominee for CCB and its "successors" did assign the mortgage to CONA, a formality because CONA is a successor to CCB. Thus, CONA had both the original note and an assignment before filing this foreclosure complaint. The twist here is that CONA returned the original note to Freddie Mac, and obtained the assignment from MERS as nominee of CCB after CCB merged with CONA.

Given that defendant was provided more than sufficient notice that CONA was the servicer for Freddie Mac, given that Freddie 1109Mac is a GSE that publicly declares its policy to foreclose through its servicers, and given that CONA did possess the note at an earlier foreclosure proceeding as well as an assignment from MERS, we do not find the irregularities here sufficient to reverse the foreclosure judgment. We do not intend by this decision to approve the way this foreclosure was prosecuted. The note should have been in CONA's possession at the time it filed this foreclosure complaint.

Affirmed.

[1] Peck, who litigated this matter as a pro se attorney, died on July 2, 2016. We continue to refer to defendant as the party in interest in this opinion.

[2] "MERS is a private corporation which administers a national electronic registry that tracks the transfer of ownership interests and servicing rights in mortgage loans. . . . MERS, as nominee, does not have any real interest in the underlying debt, or the mortgage which secured that debt. It acts simply as an agent or `straw man' for the lender." Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 332, 347, 13 A.3d 435 (Ch. Div. 2010).

[3] Defendant apparently filed this final motion shortly before he died.

[4] Effective February 18, 2016, three years after the commencement of this foreclosure action, a new statute required that "[o]nly the established holder of a mortgage shall take action to foreclose a mortgage." N.J.S.A. 46:18-13(1)(a). Thus to have standing to foreclose, as of the effective date of this statute, a plaintiff must have an original mortgage or recorded assignment, or be found to be the record mortgage holder in a civil action. N.J.S.A. 46:18-13(1)(b).