U.S. BANK NATIONAL ASSOCIATION, ETC. VS. STANLY F. FENNER (F-010215-12, ATLANTIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3732-16T4
U.S. BANK NATIONAL
ASSOCIATION, as Trustee
for the LXS 2005-9N,
Plaintiff-Respondent,
v.
STANLEY F. FENNER,
Defendant-Appellant,
and
MRS. FENNER, IRIS C. DIPASALEGNE,
a/k/a IRIS DIPASALEGNE-BLACK,
Defendants.
___________________________________
Submitted May 22, 2018 – Decided July 26, 2018
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Atlantic County, Docket No.
F-010215-12.
Stanley F. Fenner, appellant pro se.
Phelan Hallinan Diamond & Jones, PC, attorneys
for respondent (Brian J. Yoder, on the brief).
PER CURIAM
In this residential mortgage foreclosure action, defendant
Stanley F. Fenner appeals a September 20, 2013 order granting
summary judgment to U.S. Bank National Association, as trustee for
the LXS 2005-9N (U.S. Bank) and denying his cross-motion for
summary judgment, and a March 23, 2017 final judgment in favor of
U.S. Bank in the amount of $170,544.34. We affirm.
We glean the following facts from the record. On November
30, 2005, Fenner executed a non-purchase money mortgage to Mortgage
Electronic Registration Systems, Inc. (MERS) as nominee for
IndyMac Bank, and its successors and assigns, to secure an
adjustable interest rate promissory note for $106,800 payable to
IndyMac Bank, F.S.B. Both documents were properly recorded. On
December 7, 2011, U.S. Bank was assigned the mortgage, which was
recorded on March 7, 2012.
Due to Fenner's default on the loan, U.S. Bank initiated
foreclosure proceedings by serving Fenner with a notice of
intention to foreclose. After Fenner failed to cure the default,
U.S. Bank filed a foreclosure complaint on June 12, 2012, resulting
in the entry of default on September 24, 2012, because Fenner
failed to file an answer. About five months later, Fenner's motion
to vacate default was granted.
U.S. Bank subsequently moved for summary judgment; Fenner
cross-moved for summary judgment dismissal of the complaint. On
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September 20, 2013, after oral argument, Judge James E. Isman
granted U.S. Bank summary judgment and denied Fenner's cross-
motion. In his oral decision, the judge found that U.S. Bank
perfected its right to foreclose; U.S. Bank proved "by a
preponderance of the evidence the validity of the loan documents,
the existence of a default here by . . . Fenner . . . as well as
the right to foreclose." Determining Fenner's opposition to
summary judgment and proofs in support of his cross-motion were
insufficient, Judge Isman reasoned, "[U.S. Bank] has provided
sufficient proof to satisfy its preponderance of the evidence
burden[,]" and that "there is no issue whatsoever presented to
this [c]ourt in any meaningful fashion other than supposition,
conjecture, and speculation[.]"
Thereafter, the parties engaged in loss mitigation efforts,
which prompted U.S. Bank to withdraw its two motions for final
judgment of foreclosure. Eventually deciding a resolution was not
likely, U.S. Bank filed a third motion for entry of final judgment
in February 2017. Fenner did not object to the motion, and on
March 23, 2017, the Office of Foreclosure granted U.S. Bank final
judgment of foreclosure for $170,544.34. Fenner's two subsequent
motions to vacate judgment without prejudice pending this appeal
were denied.
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A trial court must grant a summary judgment motion 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." R. 4:46-2(c). "An issue of fact is genuine only if,
considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact."
Ibid.; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995). On appeal, we apply the same standard that governs the
trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015).
A mortgagee's "right to foreclose is an equitable right
inherent in the mortgage." Chase Manhattan Mortg. Corp. v. Spina,
325 N.J. Super. 42, 50 (Ch. Div. 1998). The mortgagee has the
right to insist upon strict observance of the obligations that are
contractually owed to it, including timely payment. See Kaminski
v. London Pub, Inc., 123 N.J. Super. 112, 116 (App. Div. 1973).
"The only material issues in a foreclosure proceeding are the
validity of the mortgage, the amount of the indebtedness, and the
right of the mortgagee to resort to the mortgaged premises." Great
Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993).
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When there is proof of execution, recording and non-payment of the
note and mortgage, a mortgagee has established a prima facie right
to foreclose. Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37
(App. Div. 1952). A mortgagor opposing summary judgment has a
duty to present facts controverting the mortgagee's prima facie
case. Spiotta v. William H. Wilson, Inc., 72 N.J. Super. 572, 581
(App. Div. 1962). Unexplained conclusions and "[b]ald assertions
are not capable of . . . defeating summary judgment." Ridge at
Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97-98 (App. Div.
2014).
Fenner argues:
[POINT I]
A. STANDARDS OF REVIEW
1. THE APPELLATE DIVISION MUST DECIDE –
WHETHER A GENUINE ISSUE OF MATERIAL FACT WAS
IN DISPUTE THAT SHOULD HAVE PRECLUDED SUMMARY
JUDGMENT, AND IF NOT, WHETHER THE TRIAL COURT
RULE[D] CORRECTLY ON THE LAW.
2. THE APPELLATE DIVISION MUST DECIDE –
WHETHER PLAINTIFF'S PROOF[S] WERE SUFFICIENT
TO SUPPORT ENTRY OF JUDGMENT.
[POINT II]
B. PLAINTIFF[] U.S. BANK NATIONAL
ASSOCIATION['S] OWN PROOF[S] ESTABLISHED THAT
BANK OF AMERICA, N.A. IS NOT THE HOLDER OF THE
NOTE, AND THEREFORE LACKS STANDING TO
FORECLOSE.
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1. IN ORDER FOR FINAL JUDGMENT TO BE GRANTED,
PLAINTIFF HAS TO SATISFY THE REQUIREMENTS AS
TO PROOFS, AS "CLARIFIED BY THE NEW JERSEY
SUPREME COURT IN U.S. BANK NATIONAL
ASSOCIATION V. GUILLUAME, 209 N.J. 449[,] 38
A. 3D 570[, (2012)] REGARDING [RULE] 4:64-2,
[RULE] 4:64-2(a)[, RULE] 4:64-2(c)[,] AND
[RULE] 4:64-2(d).
2. IN ORDER TO HAVE STANDING TO FORECLOSE, A
PLAINTIFF MUST SHOW BOTH (1) THAT THE
DEFENDANT OWES A DEBT TO THE PLAINTIFF AND (2)
THAT THE PLAINTIFF HAS A SECURITY INTEREST IN
THE PROPERTY.
3. TRANSFER OF A NEGOTIABLE INSTRUMENT IS
GOVERNED BY THE UNIFORM COMMERCIAL CODE,
[WHICH] REQUIRES PHYSICAL POSSESSION AND
INDORSEMENT OF A NOTE PAYABLE TO [HOLDER].
4. INDYMAC BANK DID NOT [TRANSFER] THE NOTE
TO U.S. BANK NATIONAL ASSOCIATION BEFORE (OR
AFTER) THE COMPLAINT WAS FILED; AND U.S. BANK
NATIONAL ASSOCIATION DID NOT HAVE POSSESSION
OR CONTROL OR HOLDER OF THE NOTE AND OR
MORTGAGE BEFORE THE COMPLAINT WAS FILED; OR
AFTER THE COMPLAINT WAS FILED.
5. PLAINTIFF'S ALLEGED POSSESS[ORY] INTEREST
IN THE NOTE, SUPPORTED ONLY BY AN ASSIGNMENT
OF MORTGAGE FAILS TO MEET THE REQUIREMENTS OF
THE UNIFORM COMMERCIAL CODE AND DOES NOT GIVE
RISE TO A CLAIM OF RELIEF AGAINST THE MAKER
OF THE NOTE.
6. PLAINTIFF[] U.S. BANK NATIONAL[]
ASSOCIATION['S] CLAIM OF ASSIGNMENT WAS
UNSUPPORTED BY COMPETENT EVIDENCE, AND
THEREFORE [IT] FAILED EVEN TO SHOW AN
OWNERSHIP INTEREST IN THE NOTE.
7. AS PLAINTIFF, U.S. BANK NATIONAL
ASSOCIATION FAILED TO SHOW THAT IT WAS THE
HOLDER OF THE NOTE THE ASSIGNEE OF THE
MORTGAGE IT IS NOT A PROPER PARTY TO THE
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FORECLOSURE ACTION AND LACKS STANDING TO
[FORECLOSE].
Considering Fenner's arguments in light of the record and
applicable legal principles, we conclude that they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). We affirm substantially for the reasons
expressed in Judge Isman's well-reasoned oral decision.
Affirmed.
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