CHRISTIANA TRUST, ETC. VS. ROBERT BEACH (F-002143-15, CAPE MAY COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0544-16T1
CHRISTIANA TRUST, a Division
of Wilmington Savings Fund,
Society, FSB, not in its
individual capacity but as
Trustee of ARLP Trust 3,
Plaintiff-Respondent,
v.
ROBERT BEACH,
Defendant-Appellant,
and
MRS. BEACH, unknown spouse
of Robert Beach, C&R OF NORTH
FIELD INC., ASSIGNEE OF CAPE
HEALTH ANESTHESIA LAWRENCE VIRGILIO
DR. CAPE REGIONAL MEDICAL CENTER,
Defendants.
_____________________________________
Submitted October 31, 2017 – Decided November 28, 2017
Before Judges Carroll and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Cape May County, Docket No.
F-002143-15.
Robert Beach, appellant pro se.
Powers Kirn, LLC, attorneys for respondent
(Jeanette J. O'Donnell, on the brief).
PER CURIAM
Defendant Robert Beach appeals from a July 21, 2016 order
denying his motion opposing entry of a final judgment of
foreclosure in favor of plaintiff Christiana Trust. Plaintiff was
previously granted summary judgment on December 17, 2015. We
affirm.
The following facts are taken from the record. On June 26,
2007, defendant signed a note securing a mortgage on his home
located in Marmora in the amount of $229,000. The mortgage was
recorded by Mortgage Electronic Registrations Systems, Inc. (MERS)
as nominee for Countrywide Home Loans, Inc. on August 10, 2007.
MERS then executed an assignment of the mortgage to BAC Home Loans
Servicing, LP (BAC), formerly Countrywide Home Loans Servicing,
LP. The assignment was recorded on June 24, 2011, and a corrective
assignment was later recorded on June 30, 2014. Bank of America,
NA merged with BAC and subsequently assigned the mortgage to
plaintiff. This assignment was recorded on January 30, 2014.
On January 20, 2015, plaintiff instituted a foreclosure
action in the Chancery Division. Plaintiff filed a motion for
summary judgment supported by the certification of Lucas Jon
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Hansen, a foreclosure specialist with the servicing agent for
plaintiff. Hansen certified that he personally reviewed the
business records regarding the mortgage defendant signed and the
underlying transactional documents for the assignments. His
certification confirmed that based upon his review of the business
records, defendant had defaulted on April 1, 2009.
Plaintiff also adduced a certification from Crystal Dunbar,
another foreclosure specialist from the servicing agent for
plaintiff. Dunbar certified to the interest due on the note from
March 1, 2009. Her certification attached business records
demonstrating the April 1, 2009 default date, and defendant's non-
payment as of that date.
The trial court granted plaintiff summary judgment on
December 17, 2015, and a final judgment of foreclosure was entered
in favor of plaintiff in the amount of $401,356.42 on May 9, 2016.
The property was sold at a sheriff's sale on October 26, 2016.
On appeal, defendant challenges plaintiff's standing to
foreclose. He argues plaintiff did not possess the original note.
Defendant also argues plaintiff failed to comply with the Fair
Foreclosure Act, N.J.S.A. 2A:50-53 to -73, claiming the notice of
intent to foreclose provided was inadequate because it identified
the wrong lender. Defendant claims plaintiff did not produce
objective evidence he defaulted as of April 1, 2009.
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Our review of an order granting summary judgment is de novo.
Graziano v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999).
"[W]e review the trial court's grant of summary judgment . . .
under the same standard as the trial court." Templo Fuente De
Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J.
189, 199 (2016). The court considers all of the evidence submitted
"in the light most favorable to the non-moving party," and
determines if the moving party is entitled to summary judgment as
a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995). The court may not weigh the evidence and
determine the truth of the matter. Ibid. If the evidence
presented "show[s] that there is no real material issue, then
summary judgment should be granted." Walker v. Atl. Chrysler
Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987) (citing Judson
v. Peoples Bank and Tr. Co. of Westfield, 17 N.J. 67, 75 (1954)).
"[C]onclusory and self-serving assertions by one of the parties
are insufficient to overcome [summary judgment]." Puder v.
Buechel, 183 N.J. 428, 440-41 (2005).
The right to foreclose arises upon proof of execution and
recording of a mortgage and note, and default on payment of the
note. Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37-38 (App.
Div. 1952). Standing to foreclose derives from N.J.S.A. 12A:3-
301, which states:
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"Person entitled to enforce" an instrument
means the holder of the instrument, a
nonholder in possession of the instrument who
has the rights of a holder, or a person not
in possession of the instrument who is
entitled to enforce the instrument pursuant
to 12A:3-309 or subsection d. of 12A:3-418. A
person may be a person entitled to enforce the
instrument even though the person is not the
owner of the instrument or is in wrongful
possession of the instrument.
We have stated that standing may be established through "either
possession of the note or an assignment of the mortgage that
predated the original complaint." Deutsche Bank Tr. Co. Ams. v.
Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012).
The record here demonstrates plaintiff had standing to
foreclose. Plaintiff offered the certification of Hansen, which
proved the mortgage was assigned to plaintiff before the complaint
for foreclosure was filed. Hansen's certification proved
plaintiff held the note before the filing date of the complaint.
His certification also established the mortgage was recorded
before plaintiff filed its complaint. For these reasons, we reject
defendant's argument that plaintiff lacked standing.
Next, defendant argues plaintiff failed to comply with the
Fair Foreclosure Act. He argues the notice of intent to foreclose
issued by plaintiff was invalid because it named the wrong lender.
Defendant's argument lacks merit.
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N.J.S.A. 2A:50-56(c)(11), in pertinent part, requires:
c. The written notice shall clearly and
conspicuously state in a manner calculated to
make the debtor aware of the situation:
. . . .
(11) the name and address of the
lender and the telephone number of
a representative of the lender whom
the debtor may contact if the debtor
disagrees with the lender’s
assertion that a default has
occurred or the correctness of the
mortgage lender's calculation of
the amount required to cure the
default.
Here, the notice of intent to foreclose issued to defendant on
February 10, 2014, complied with the statute, and specifically set
forth plaintiff's name and address. Moreover, plaintiff was
correctly noted as the lender because the note had been assigned
to it on January 30, 2014, before issuance of the notice of intent
to foreclose.
Lastly, as we noted above, plaintiff adduced the
certifications of Hansen and Dunbar who both attested to the date
defendant defaulted and provided the motion judge with the factual
basis to award plaintiff summary judgment. Both Hansen and Dunbar
attested to reviewing the business records and their
certifications were unrebutted by any objective evidence to the
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contrary. For these reasons, we reject defendant's argument
plaintiff offered no proof of default.
Affirmed.
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