MORTGAGE LAW - ATTORNEY IN BERGEN COUNTY NEW JERSEY (201) 646-3333

 

WELLS FARGO BANK, N.A., AS TRUSTEE, ON BEHALF OF THE HOLDERS OF THE HARBORVIEW MORTGAGE LOAN TRUST MORTGAGE LOAN PASS-THROUGH CERTIFICATES, SERIES 2006-12, Plaintiff-Respondent,
v.
MARY YACCARINO, Defendant, and
WALTER A. WALKER, SR., Defendant-Appellant.

No. A-4580-17T3.
Superior Court of New Jersey, Appellate Division.

Submitted May 22, 2019.Decided June 6, 2019

On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. F-001493-16.

Walter A. Walker, Sr., appellant pro se.

Parker Ibrahim & Berg, LLP, attorneys for respondent (Charles W. Miller, III, Ben Zev Raindorf and Nathania Reyes, on the brief).

Before Judges Accurso and Vernoia.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

In this residential mortgage foreclosure action, defendant Walter A. Walker, Sr., appeals from a September 22, 2017 order granting plaintiff Wells Fargo Bank, N.A.^[1] summary judgment and striking defendant's answer, an April 27, 2018 order denying defendant's motion to fix the amount due, and an April 30, 2018 order granting final judgment to plaintiff. Finding no merit to defendant's arguments, we affirm.

In October 2006, Mary Yaccarino^[2] borrowed $247,500 from Countrywide Bank, N.A. Yaccarino signed a promissory note in that amount in Countrywide's favor. To secure the loan, Yaccarino and defendant executed an October 16, 2006 mortgage on property in Mays Landing to Mortgage Electronic Registration Systems, Inc. (MERS), acting as Countrywide's nominee.

The note went into default in May 2011 for non-payment and remained in default thereafter. In October 2011, MERS assigned the mortgage to Bank of America, N.A.^[3] In 2015, Bank of America assigned the mortgage to plaintiff.

In January 2016, plaintiff filed a foreclosure complaint. Defendant filed an answer. Plaintiff subsequently filed a summary judgment motion and, in response, defendant filed a cross-motion to dismiss the complaint and to amend the answer to include a counterclaim.

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After hearing argument on the motions, the court issued a detailed opinion from the bench. The court found there was no dispute there was a default under the note, and determined plaintiff had standing to foreclose because it is the assignee of the mortgage and possessed the note. The court rejected defendant's claim plaintiff violated the New Jersey Home Ownership Security Act of 2002 (HOSA), N.J.S.A. 46:10B-22 to-35, finding the statute inapplicable because defendant did not present any evidence that the mortgage loan satisfied either the statute's interest rate or total points and fees thresholds, N.J.S.A. 46:10B-24. The court also rejected defendant's assertion that plaintiff violated the Truth in Lending Act, 15 U.S.C. §§ 1601 to 1667f, because the competent evidence in the summary judgment record established that defendant was properly served with a notice of intent to foreclose and notice of the assignment of the mortgage to plaintiff. The court entered a September 22, 2017 order granting plaintiff summary judgment and striking defendant's answer.

Plaintiff filed a motion for entry of final judgment, to which defendant did not file a response. Defendant filed a motion to set the amount due. Defendant challenged the accuracy of plaintiff's business records and argued plaintiff's calculation of the amount due under the note included incorrect late payment charges and failed to credit defendant for mortgage payments made from 2012 to 2014 during his personal bankruptcy proceeding. The court rejected defendant's contentions and found the certification of plaintiff's loan servicing officer and plaintiff's business records established that the amount plaintiff claimed was due under the note accurately credited defendant with the mortgage payments made during the bankruptcy proceeding.

The court entered an April 27, 2018 order denying defendant's motion to set the amount due and directed the Office of Foreclosure to process plaintiff's motion for entry of a final judgment. On April 30, 2018, the court entered a final judgment of foreclosure finding $344,747.89 was the amount due, plus interest from November 20, 2017, costs and counsel fees. This appeal followed.

On appeal, defendant first argues the court erred by granting summary judgment because there was a fact issue as to whether "Yaccarino alone executed [the] [n]ote." Defendant asserts that plaintiff alleged Yaccarino executed the note, but that there was an issue of fact as to that assertion because he and Yaccarino executed the note and were designated as the "borrowers" in the mortgage.

Summary judgment should be granted if the court determines "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." R. 4:46-2(c). We review the motion court's decision de novo and afford its ruling no special deference. Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, 224 N.J. 189, 199 (2016). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party" in consideration of the applicable evidentiary standard, "are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

In a mortgage foreclosure proceeding, the court must determine three issues: "the validity of the mortgage, the amount of the indebtedness" and default, and the right of the plaintiff to foreclose on the mortgaged property. Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994). On appeal, defendant does not contest the validity of the mortgage, that the note is in default or plaintiff's right to foreclose. Instead, he argues only that there are fact issues precluding summary judgment, the court erred in rejecting his claim plaintiff violated HOSA and plaintiff failed to present competent evidence supporting its calculation of the amount due. For the reasons that follow, we reject defendant's contentions.

A motion for summary judgment must be denied where there is a genuine issue of fact that is material to the determination of whether the moving party is entitled to judgment as a matter of law, Brill, 142 N.J. at 540, but that is not the case here. As a matter of undisputed fact, Yaccarino alone signed the note, but defendant correctly notes that he and Yaccarino executed an addendum to the note that allowed for the imposition of a prepayment penalty, and in the mortgage he was referred to as a borrower. Those designations, and any purported factual dispute over whether defendant was a party to the note, are immaterial to a resolution of plaintiff's foreclosure action. Whether defendant is a borrower or not, there is no dispute that the mortgage secured the payment of the note, he and Yaccarino received plaintiff's notices of intent to foreclose and there is a default under the note entitling plaintiff to foreclose under the mortgage. See Pardo, 263 N.J. Super. at 394.

We also reject defendant's claim that the court erred by granting summary judgment because plaintiff violated HOSA. As noted, the court found the statute inapplicable because defendant failed to present any evidence that the mortgage loan constituted a "high-cost home loan" to which the statute is applicable where there has been an assignment of the loan. N.J.S.A. 46:10B-27. The court explained that plaintiff did not demonstrate the loan satisfied either the statute's interest rate or total points and fees thresholds to qualify as a high-cost home loan subject to the statute. N.J.S.A. 46:10B-24. The record supports the court's finding. There is no competent evidence supporting the statute's application, and defendant points to none in support of his contention on appeal.

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Defendant last argues the court erred by relying on plaintiff's business records to calculate the amount due. Defendant contends the proffered business records are inadmissible under Rule 803(c)(6) and that plaintiff's representative, Brandi Davis, who submitted a certification concerning the records, did not possess sufficient personal knowledge to support the court's acceptance of the records as competent evidence of the sums due under the note. We are not persuaded.

The Davis certification expressly states that her knowledge was obtained by her personal review of records made in the regular course of her employer's business, at or near the time of the events, and recorded by persons with knowledge of the activity and transactions memorialized in the records. Thus, the documents upon which Davis's certification is based are admissible as business records under Rule 803(c)(6). State v. Sweet, 195 N.J. 357, 370 (2008). There is no requirement that Davis possess personal knowledge of the events reflected in the records. New Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 326 (App. Div. 2014); cf., Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 599-600 (App. Div. 2011) (finding a certification supporting a summary judgment motion inadequate because it did not indicate it was based upon personal knowledge and did not reflect the source of the affiant's knowledge of the facts stated).

To the extent we have not addressed any arguments asserted in defendant's pro se brief, they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

[1] Plaintiff filed the foreclosure complaint "as trustee, on behalf of the holders of HarborView Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2006-12."

[2] Yaccarino is a defendant in the foreclosure, but has neither appealed the court's orders nor participated in the appeal.

[3] Bank of America, N.A, is the successor by merger to BAC Home Loans Servicing, LP, which was formally known as Countrywide Home Loans Servicing, LP.

BANKRUPTCY ATTORNEY LOCATED IN HACKENSACK - NEW JERSEY | BANKRUPTCY ARTICLE (201) 646-3333

 

sTANYA L. KAUFFMAN, Plaintiff-Respondent,
v.
JALAL M. SHABAZZ, Defendant-Appellant.

No. A-2114-18T1.
Superior Court of New Jersey, Appellate Division.

Argued December 10, 2019.Decided January 3, 2020.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FM-03-1428-12.

Louis Gerard Guzzo argued the cause for appellant.

Luretha M. Stribling argued the cause for respondent.

Before Judges Accurso and Gilson.

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.

Defendant Jalal Shabazz appeals from a post-judgment order enforcing a provision of the parties' marital settlement agreement in which they agreed to be "equally responsible" for an American Express account having an approximate balance of $7400 at the time of their divorce in 2012. The December 14, 2018 order directed defendant to pay plaintiff Tanya Kauffman $10,123.36 for his fifty-percent share of the balance as of the time of the order and awarded her $3000 in attorney's fees.

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Defendant contends the amount awarded exceeded what plaintiff requested in her notice of motion; the order was based on the court's mistaken belief that plaintiff filed an objection to the discharge of the debt in his Chapter 7 bankruptcy; that enforcement of the marital settlement agreement was barred by laches; and that the trial court did not have adequate information "to calculate that plaintiff/respondent actually paid $10,126.36." Our review of the record convinces us that none of those arguments, only the last of which he raised to the trial court, is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.

Although defendant contends the amount awarded exceeded what plaintiff "requested in her notice of motion," the notice of motion included in his appendix mentions no amount but asks only that defendant be compelled "to immediately make payments as required by the Property Settlement Agreement attached to the Judgment of Divorce." We thus reject his first argument as baseless.

His second argument, that the trial court based its decision on the mistaken belief that plaintiff filed an objection to the discharge of this claim, is equally unavailing. Because 11 U.S.C. § 523(a)(15) provides that a Chapter 7 discharge under 11 U.S.C. § 727, does not discharge an individual debtor from any debt to a former spouse incurred in the course of a divorce or in connection with a separation agreement or divorce decree, whether the judge was mistaken as to whether plaintiff filed an objection to the discharge is of no moment. Defendant's obligation to pay half the American Express bill was not discharged in his Chapter 7 bankruptcy as a matter of law, with no action necessary by plaintiff to protect the claim.

The only argument defendant offers in support of his claim of laches is an old case in which the chancellor determined he could infer from the wife's failure to have pursued support arrearages for six years, making the application only after her ex-husband's death, that the two had "made some arrangement between themselves with respect to support." Duffy v. Duffy, 19 N.J. Misc. 332, 340 (Ch. 1941). Here, however, defendant claims no such arrangement, and the record reflects that plaintiff pursued defendant for contribution to the American Express bill for some time before filing her motion to enforce the agreement. There is, accordingly, no support for defendant's third argument that enforcement of the marital settlement agreement is barred by laches.

Finally, we reject defendant's fourth argument that plaintiff "failed to provide any documentation evidencing that she actually paid any interest" for the period between entry of the divorce judgment in 2012 and the American Express statement from 2018, which the trial court rejected.

Defendant has included in his appendix a copy of a certification plaintiff submitted in support of her motion in which plaintiff averred that her "attorney provided all of the outstanding AMEX bills" in her pre-hearing exchange pursuant to the court's discovery order. That certification references several exhibits, none of which were attached to the document.

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Plaintiff has included in her own appendix certain American Express statements defendant did not provide us. She further asserts in her brief that the court calculated the amount owed "by reviewing American Express bills which were noted in [plaintiff's] certification to be exhibits G, H, I, J, K, L, M, N, and O." Those exhibits are not included in defendant's appendix and he did not file a reply brief challenging the accuracy of plaintiff's representations regarding the state of the record before the trial court.

Defendant's failure to supply us with all the documents on which the trial court relied to calculate his share of the American Express account, including interest and fees imposed after entry of the divorce judgment, leaves us unable to agree with his argument that those documents were inadequate to support the court's conclusion. See Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002); R. 2:6-1(a)(1)(I).

Affirmed.

FORECLOSURE ATTORNEY IN HACKENSACK NJ - FORECLOSURE ARTICLE (201)646-3333

 

BANK OF AMERICA, N.A., Plaintiff-Respondent,
v.
WADELL P. SMITH, Defendant-Appellant.

No. A-0912-18T1.
Superior Court of New Jersey, Appellate Division.

Submitted May 29, 2019.Decided June 19, 2019.

On appeal from Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-007676-16.

Wadell P. Smith, appellant pro se.

Parker McCay, PA, attorneys for respondent (Eugene R. Mariano, of counsel; Stacy L. Moore, Jr., on the brief).

Before Judges Hoffman and Suter.

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.

Defendant Wadell Smith appeals from the August 17, 2018 trial court order denying his motion to set aside the sheriff's sale and allow redemption on a foreclosed property due to plaintiff's alleged failure to file proper proofs. For the reasons that follow, we affirm.

I.

In December 2008, defendant executed a note to Allied Mortgage Group, Inc. (Allied) for the sum of $403,987. On the same day, defendant executed a mortgage to Mortgage Electronic Registration Systems, Inc. as nominee for Allied. Plaintiff came into possession of the debt as successor to an assignee of the mortgage.

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In August 2010, defendant defaulted. Plaintiff filed a foreclosure complaint in March 2016. In December 2016, the trial court granted plaintiff's motion for summary judgment. In December 2017, plaintiff submitted an application for final judgment, which the court granted in January 2018.

In April 2018, defendant filed a motion to vacate final judgment. The court denied the motion the following month. In June 2018, defendant filed a motion to dismiss, which the court denied. The same month, a sheriff's sale was held and plaintiff purchased the property. Subsequently, in July 2018, defendant filed a motion to set aside the sheriff's sale. The trial court denied this motion in August 2018. This appeal followed, based only on the motion to set aside the sheriff's sale.

II.

To succeed in a foreclosure action, a plaintiff need merely prove: (1) the validity of the note and mortgage; (2) the defendant defaulted on the loan; and (3) plaintiff has the right to resort to the mortgaged property in satisfaction of the loan. Great Falls Bank v. Pardo, 263 N.J. Super. 388 (Ch. Div. 1993). Defendant does not contest any of these material elements. Rather, defendant argues plaintiff failed to comply with amended foreclosure Rules 4:64-1 and 4:64-2. Essentially, defendant argues plaintiff erred by filing certifications rather than affidavits.

We review motions to set aside a sheriff's sale for abuse of discretion. United States v. Scurry, 193 N.J. 492, 502-03 (2008). To set aside, we require a showing of fraud, accident, surprise or mistake, irregularities in the sale, or other similar circumstances. See R. 4:50-1; Karel v. Davis, 122 N.J. Eq. 526, 528 (E & A 1937).

Here, even assuming the bank's attorneys made mistakes, we find no circumstances to justify an order under Rule 4:50-1 vacating the judgment. Indeed, after reviewing the record, we find insufficient merit in defendant's arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.

On June 9, 2011, our Supreme Court adopted amendments to the rules governing foreclosure actions. See N.J. Judiciary, Residential Mortgage Foreclosure Rules: Amendments to Rules 4:64-1 and 4:64-2; Revised Form Certifications/Affidavits (June 9, 2011).

The amendments require an attorney for a foreclosure plaintiff to execute a Certification of Diligent Inquiry confirming the attorney has communicated with an employee of the plaintiff or its loan servicer and confirmed the accuracy of the Note and other foreclosure documents. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:64-1 and cmt. 1 on R. 4:64-2 (2019). Likewise, the plaintiff must file an affidavit of amount due. R. 4:64-2.

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However, despite defendant's argument to the contrary, the rule "permits proof of the amount due to be submitted by certification...." See Pressler & Verniero, cmt. 1 on R. 4:64-2 (2019). Likewise, the rule explicitly allows for a certification for the diligent inquiry. See R. 4:64-1.

Additionally, defendant only appealed the denial of his motion to set aside the sheriff's sale. He did not appeal the orders denying his motion to vacate final judgment or his motion to dismiss. Thus, we are unable to set aside the final judgment as defendant requests. See Pressler & Verniero, cmt. 6.1 on R. 2:5-1(f)(1) (2017) (citing Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div. 1994)) (rejecting review of the trial court's denial of a request for special interrogatories because the issue was not listed in the notice of appeal).

Affirmed.

MORTGAGE ATTORNEY - LAWYER FOR BANKRUPTCY CASES IN NEW JERSEY (201)646-3333 - MORTGAGE ARTICLE

 

PHH MORTGAGE CORPORATION, Plaintiff-Respondent,

v.

ERIC MOORE, Defendant-Appellant.

Docket No. A-4105-14T2.

Superior Court of New Jersey, Appellate Division.

Submitted May 8, 2017.Decided September 8, 2017.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-001008-13.

Eric Moore, appellant pro se.

Ballard Spahr LLP, attorneys for respondent (Daniel JT McKenna and Christopher N. Tomlin, on the brief).

Before Judges Nugent and Currier.

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.

Defendant Eric Moore appeals from a February 5, 2015 Chancery

Division order denying his motion to vacate the final judgment in this mortgage foreclosure action. For the reasons that follow, we affirm.

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On August 22, 2003, defendant borrowed $173,000 from Fleet National Bank ("Fleet"). Defendant delivered a note to Fleet in that amount and secured the debt by executing a mortgage encumbering property he owned in Irvington. Defendant executed the mortgage in favor of Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Fleet. The mortgage was duly recorded in the Office of Essex County Register on August 28, 2003. Thereafter, Fleet endorsed the note without recourse to Cendant Mortgage Corporation ("Cendant").^[1] Cendant endorsed the note in blank.

Six years later, on October 26, 2009, MERS assigned the mortgage to PHH Mortgage Corporation ("PHH"). The assignment was duly recorded on December 21, 2009.

According to the foreclosure complaint that PHH filed on January 10, 2013, defendant defaulted by failing to make an installment payment due June 1, 2012, and has since failed to make any payments.

On February 4, 2014, defendant filed a motion to set aside a default that had been entered pursuant to Rule 4:43-3.^[2] Thereafter, plaintiff filed a notice of motion for entry of judgment. Defendant opposed the motion and filed a cross motion to dismiss the complaint. The court denied defendant's cross motion and entered final judgment on November 21, 2014.

Defendant moved to vacate the final judgment. The court denied the motion on February 5, 2015. This appeal followed.

On appeal, defendant argues "[t]he Appellate Division must decide whether the defendant [is] entitled to relief as a matter of law." Defendant also argues plaintiff produced no competent admissible evidence that it owned an interest in the note secured by defendant's mortgage. Defendant contends the "Certification of Proof of Amount Due" signed by plaintiff's assistant vice-president, attesting "[p]laintiff is the holder of the . . . note," is not based on personal knowledge. Defendant further argues the vice-president did not address the note's endorsement in blank. In short, defendant contends plaintiff failed to demonstrate it was entitled to judgment as a matter of law.

Defendant seeks relief under Rule 4:50-1, which states:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

The rule "governs an applicant's motion for relief from default when the case has proceeded to judgment" pursuant to Rule 4:43-2. US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012). "The rule is `designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Id. at 467 (citing Mancini v. EDS, 132 N.J. 330, 334 (1993)).

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Relief from judgment under Rule 4:50-1 "is not to be granted lightly." Bank v. Kim, 361 N.J. Super. 331, 336 (App. Div. 2003). Moreover, "the showing of a meritorious defense is a traditional element necessary for setting aside both a default and a default judgment. . . ." Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:43-3 (2017). That is so because when a party has no meritorious defense, "[t]he time of the courts, counsel and litigants should not be taken up by such a futile proceeding." Guillaume, supra, 209 N.J. at 469 (quoting Schulwitz v. Shuster, 27 N.J. Super. 554, 561 (App. Div. 1953)).

An appellate court reviews a trial court's order denying a Rule 4:50-1 motion for relief under an abuse of discretion standard, giving the trial court's ruling substantial deference. Id. at 467 (citations omitted). An appellate court "finds an abuse of discretion when a decision is `made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Id. at 467-68 (citing Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

Here, defendant did not demonstrate he had a meritorious defense to the foreclosure action. His primary contention on appeal is PHH did not have standing when it filed the foreclosure complaint. The argument is unavailing. A mortgage assignment that predates the original complaint confers standing on a plaintiff. Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)). Here, it is undisputed that MERS, as nominee for Fleet, assigned the mortgage to PHH on October 26, 2009, and that the mortgage was duly recorded on December 21, 2009, more than three years before PHH filed the complaint on January 10, 2013.

Defendant has no other defenses. We have considered his remaining arguments and found them to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

[1] Plaintiff Cendant Mortgage Corporation is the former name of plaintiff PHH Mortgage Corporation.

[2] The record on appeal does not include an order disposing of defendant's motion.

MORTGAGE LAWYER - MORTGAGE ARTICLE - LAWYER IN HACKENSACK NJ (201)646-3333

 

GOSHEN MORTGAGE, LLC, Plaintiff-Respondent,
v.
DANIEL WILLIAMS, Defendant-Appellant, and
ROSA WILLIAMS, NEW CENTURY FINANCIAL SERVICES, CHILTON MEMORIAL HOSPITAL and MIDLAND FUNDING, LLC, Defendants.No. A-4811-15T1.Superior Court of New Jersey, Appellate Division.Submitted July 5, 2017.Decided October 23, 2017.

On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. F-031723-14.

Daniel Williams, appellant pro se.

Friedman Vartolo, LLP, attorneys for respondent (Adam J. Friedman, on the brief).

Before Judges Nugent and Accurso.

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.

Defendant Daniel Williams appeals from a final judgment of foreclosure contending plaintiff Goshen Mortgage, LLC failed to establish its predecessor in this action, Bayview Loan Servicing, LLC, possessed the note and mortgage when it filed its foreclosure complaint. Because the record reveals plaintiff's predecessor established its standing by actual possession of the note and mortgage and a duly recorded assignment of mortgage pre-dating its complaint, we affirm.

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Defendant borrowed $345,100 from Nationwide Equities Corporation in March 2008, executing a thirty-year note and a non-purchase money mortgage on his home. The loan went into default eight months later after defendant and his wife suffered serious health issues. As reflected in the 2014 foreclosure complaint and in counsel for Bayview's certification of diligent inquiry pursuant to R. 4:64-1(a)(2), the note and mortgage were assigned first to Bank of America, N.A., then to the Secretary of Housing and Urban Development and then to the original plaintiff, Bayview. While the matter was pending in the Chancery court, Bayview transferred physical possession of the note and mortgage to Goshen and recorded an assignment of mortgage documenting the transfer. The Chancery judge amended the caption accordingly.

Following discovery, Goshen moved for summary judgment. Defendant opposed, arguing that certain signatures on the assignments of mortgage were forged. He submitted two almost identical reports from a purported handwriting expert, each concluding, without explanation, that the signatures were forged.

After hearing oral argument, Judge McVeigh entered summary judgment for plaintiff, addressing and rejecting each of defendant's arguments in opposition to the motion in a comprehensive written opinion. After a detailed review of the documents in the record, she found Goshen established its own and its predecessor Bayview's standing by virtue of a certification by its servicer's employee made on personal knowledge in accordance with R. 1:6-6. See Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597-600 (App. Div. 2011).

Based on a review of Goshen's records, the employee was able to attest to Bayview's acquisition of the original note and mortgage six months before the filing of the complaint and its transfer of those original documents to Goshen during the pendency of the litigation, which continued to hold them at the time of the motion. As actual holders of the mortgage, plaintiff and its predecessor easily established standing to pursue its foreclosure. See Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 330-31 (Ch. Div. 2010).

Judge McVeigh was also satisfied that Goshen established it and its predecessor's standing through the chain of recorded assignments. Because Bayview had a recorded assignment of mortgage predating the complaint, it had standing to initiate the foreclosure. See Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Goshen's physical possession of the note and a recorded assignment of mortgage likewise provided it standing to pursue the complaint to judgment. See Ibid. Judge McVeigh rejected the proffered expert reports as net opinions and questioned whether even a forgery in the recorded assignments would affect plaintiff's standing in light of its possession of the original note and mortgage.

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Defendant appeals, reprising the standing arguments he made to the trial court. Having considered defendant's arguments and reviewed the record on the motion, we affirm, substantially for the reasons expressed by Judge McVeigh in her opinion of December 4, 2015. Because we agree defendant presented no competent proof of forgery, we need not consider whether summary judgment could have been entered had defendant raised a genuine issue as to the authenticity of the signatures on the assignments.

Affirmed.

BANKRUPTCY ATTORNEY IN HUDSON COUNTY NJ - (201) 646-3333

 

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff-Respondent,
v.
JOHN J. TOMASELLO and LINDA B. TOMASELLO, his wife, Defendants-Appellants, and
UNITED STATES OF AMERICA, AMERICAN EXPRESS TRAVEL RELATED SERVICES, PRECAST MANAUFACTURING COMPANY, SHERMAN CLAY AND CO., AMERICAN FIRE AND CASUALTY COMPANY, and STATE OF NEW JERSEY, Defendants.

No. A-2436-17T3.

Superior court of New Jersey, Appellate Division.

Submitted February 13, 2019.Decided March 8, 2019.

On appeal from Superior Court of New Jersey, Chancery Division, Camden County, Docket No. F-029506-15.

Weisberg Law, PC, attorneys for appellants (Matthew B. Weisberg, on the brief).

Stern, Lavinthal & Frankenberg, LLC, attorneys for respondent (Mark S. Winter, of counsel and on the brief).

Before Judges Accurso and Vernoia.

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.

Defendants John J. Tomasello and Linda B. Tomasello appeal from a Chancery Division order denying their motion to vacate a March 2017 sheriff's sale of property following entry of a final judgment of foreclosure. We affirm.

Plaintiff Federal National Mortgage Association filed a foreclosure complaint alleging that on July 1, 2010, defendants defaulted on a note and residential mortgage on property owned by defendants in Sicklerville. Defendants did not respond to the complaint and on March 3, 2016, the court entered a final judgment of foreclosure and a writ of execution authorizing the sale of the property.

On May 24, 2016, plaintiff mailed a notice of a June 22, 2016 sheriff's sale of the property. The notice was sent to defendants at their Sicklerville address. Defendants obtained two statutory stays of the sheriff's sale, but on July 20, 2016, the property was sold at the sale. It was later discovered that moments before the July 20, 2016 sale, defendants filed a bankruptcy petition that was subsequently dismissed.

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Four months later, plaintiff moved to vacate the sheriff's sale because it took place during the pendency of defendants' bankruptcy proceeding. On December 16, 2016, the court entered an order granting the motion, vacating the July 20, 2016 sheriff's sale and allowing a second sale without any further advertisement.

On February 8, 2017, plaintiff's counsel sent notice to defendants that the sheriff's sale was scheduled for March 1. The notice was sent to defendants at their address in Sicklerville. Plaintiff subsequently purchased the property at the sheriff's sale.

Defendants later moved to vacate the sheriff's sale, claiming plaintiff failed to mail notice of the sale to their Sicklerville address. Defendants' counsel submitted a certification supporting the motion that in pertinent part asserted plaintiff failed to serve notice of the sheriff's sale "to the subject New Jersey property via certified mail as required." Similarly, in defendant John Tomasello's supporting affidavit, he complained the original complaint was served at defendants' Florida residence "but not at the subject New Jersey property," and that plaintiff had not produced proof of delivery of the notice of the sheriff's sale to defendants' Sicklerville property address. Neither counsel's certification nor John Tomasello's affidavit asserted that the sheriff's sale should be vacated because notice of the sale was not sent to defendants at an address in Key West, Florida. Plaintiff filed opposition to the motion demonstrating that notice of the March 1, 2017 sheriff's sale was properly mailed to defendants at their Sicklerville address.

After hearing argument, the court denied defendants' motion finding defendants' requests for the two statutory stays established they were aware of the sheriff's sale. The court further found defendants filed the bankruptcy petition at the "eleventh hour" and "manage[d] to stay [the sheriff's sale] again." The court also implicitly rejected defendants' claim that notice of the sale was not properly sent to defendants at their Sicklerville address, and entered an order denying defendants' request to vacate the sale. This appeal followed.

We review a court's order denying a motion to vacate a sheriff's sale for an abuse of discretion. U.S. ex. rel. U.S. Dept. of Agric. v. Scurry, 193 N.J. 492, 502-03 (2008). An abuse of discretion occurs "when a decision is `made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).

On appeal, defendants abandon their claim the sheriff's sale should be vacated because notice of the sale was not properly sent to them at their Sicklerville address. See Jefferson Loan Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008) (finding that an issue not briefed on appeal is deemed waived). Instead, defendants rely on a single argument, asserted for the first time on appeal, that the court erred by failing to find the sale should be vacated because plaintiff did not serve them with notice of the sale at their address in

Florida.

"Appellate review is not limitless. The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Defendants' singular contention on appeal was never asserted before the motion court. We reject the argument because it was not "properly presented to" the motion court and does not "go to the jurisdiction of the . . . court or concern matters of great public interest." Id. at 20 (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973)).

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Moreover, we discern no abuse of discretion in the court's decision denying the motion to vacate the sheriff's sale. As noted, defendants do not dispute that plaintiff properly served them with notice of the sale at their Sicklerville address. Thus, plaintiff provided notice of the sale to "the owner of record of the property as of the date of commencement of the action" in accordance with Rule 4:65-2. That defendants may have also had an address in Florida at the same time does not render the notice invalid. Indeed, in their motion to vacate the sheriff's sale, defendants complained that service of the complaint was invalid because it was sent to their Florida address instead of their Sicklerville address. In other words, defendants argued before the motion court that the sale should be set aside because it was not sent to their New Jersey address.

As we explained in Assoulin v. Sugarman, "noncompliance [with Rule 4:65-2] warrants setting [a] sale aside, `provided the party entitled thereto has no knowledge of the pendency of the sale, seeks relief promptly upon learning thereof, and no intervening equities in favor of innocent parties have been created in the interim.'" 159 N.J. Super. 393, 398 (App. Div. 1978) (citation omitted). As the motion court aptly found here, defendants were aware of the pendency of the sale, sought two statutory stays and filed a bankruptcy petition to delay the sale and were served with notice of the adjourned sale at their Sicklerville address. Under such circumstances, we discern no basis to conclude the court abused its discretion by denying defendants' motion to vacate the sheriff's sale.

Affirmed.