MTGLQ INVESTORS, LP VS. JANICE M. LAWRENCE (F-025868-14, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4843-16T2
MTGLQ INVESTORS, LP,1
Plaintiff-Respondent,
v.
JANICE M. LAWRENCE,
Defendant-Appellant,
and
MR. LAWRENCE, husband of JANICE
M. LAWRENCE and FIRST FINANCIAL
FEDERAL CREDIT UNION,
Defendants. 2
_______________________________
Submitted August 7, 2018 - Decided August 10, 2018
Before Judges Mayer and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No.
F-025868-14.
1
During the pendency of this foreclosure action, Green Tree
Servicing, LLC, the original plaintiff, merged into Ditech
Financial, LLC (Ditech). Ditech was substituted as plaintiff by
order dated January 4, 2016. Ditech then assigned the mortgage
to MTGLQ Investors, LP. This entity was substituted as plaintiff
by order dated November 22, 2016.
2
Only defendant Janice M. Lawrence filed a contesting answer.
Janice M. Lawrence, appellant pro se.
Phelan Hallinan Diamond & Jones, PC, attorneys
for respondent (Brian J. Yoder, on the brief).
PER CURIAM
Defendant appeals from the following orders: a September 18,
2015 order granting summary judgment in favor of the original
plaintiff, Green Tree Servicing, LLC (Green Tree), and denying
defendant's cross-motion to dismiss the foreclosure complaint; an
April 28, 2017 order denying defendant's motion to fix the amount
due; and a May 23, 2017 final judgment in favor of plaintiff MTGLQ
Investors, L.P. We affirm.
Defendant borrowed $161,000 from GMAC Mortgage Corporation
DBA ditech.com. The note provided for monthly payments of $965.28.
To secure the loan amount, defendant executed a non-purchase money
mortgage on property in Toms River to Mortgage Electronic
Registration Systems, Inc. (MERS) as nominee for GMAC Mortgage
Corporation DBA ditech.com, its successors and assigns. The
mortgage was recorded on May 1, 2006. MERS assigned the mortgage
to GMAC Mortgage, LLC and the assignment of mortgage was recorded
on April 12, 2012. GMAC Mortgage, LLC assigned the mortgage to
Green Tree and the assignment of mortgage was recorded on August
21, 2013.
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In February 2011, defendant failed to make the monthly
payments. On July 30, 2013, Green Tree sent a notice of intent
to foreclose (NOI) to defendant at the mortgaged property.3 The
NOI, sent by regular and certified mail, notified defendant of the
default. The NOI also advised defendant of the right to cure the
default and the commencement of a foreclosure action if the default
was not cured.
Defendant failed to cure the default and, on June 24, 2014,
Green Tree filed a foreclosure complaint. Defendant filed a
contesting answer on September 17, 2014.
Green Tree filed a motion for summary judgment and to strike
defendant's answer. The motion included a certification from
Danielle Froelich (Froelich), who was employed by Green Tree as a
Document Execution Specialist. In her certification, submitted
in accordance with Rule 1:6-6, Froelich certified that Green Tree
had possession of the note prior to mailing the NOI and filing the
foreclosure complaint. Her certification also stated that
defendant defaulted and remained in default.
Defendant opposed the motion and filed a cross-motion to
dismiss the foreclosure complaint. Defendant argued the
certification in support of summary judgment failed to establish
3
The mortgaged property is defendant's personal residence.
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Green Tree was the owner of the debt. Defendant further argued
the assignment to Green Tree was invalid because there was no
intent to grant, sell, assign, or transfer the mortgage rights to
Green Tree. Additionally, defendant claimed the NOI was deficient
and Green Tree failed to provide evidence of mailing of the NOI.
The motion judge granted summary judgment in favor of Green
Tree, and struck defendant's contesting answer. The judge found
the assignments of the mortgage and other documents in support of
summary judgment admissible based on Froelich's certification.
Froelich certified that she had knowledge regarding the
maintenance of the records and personally reviewed the account.
The judge concluded the information in Froelich's certification
was admissible under the business records exception to the hearsay
rule, N.J.R.E. 803(c)(6). In accordance with the mortgage
documents, the judge determined that Green Tree had standing to
proceed with the foreclosure. The judge also found defendant
defaulted when she failed to pay the valid debt pursuant to the
mortgage documents.
After the entry of summary judgment, Ditech sent a notice to
defendant, in accordance with the Fair Foreclosure Act (FAA),
N.J.S.A. 2A:50-53 to -73, advising that it would be submitting
proof for entry of a Final Judgment of Foreclosure. The January
22, 2016 notice allowed ten (10) days for defendant to indicate
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any reasonable likelihood of providing payment necessary to cure
the default. Subsequent to this notice, the mortgage was assigned
to plaintiff.
On March 22, 2017, plaintiff moved for entry of a final
judgment in foreclosure. Defendant filed a motion to fix the
amount due. On April 28, 2017, the motion judge denied defendant's
motion to fix the amount due. The case proceeded as an uncontested
matter and a final judgment was entered in favor of plaintiff on
May 23, 2017, in the amount of $232,539.43.
Defendant appealed. On appeal, defendant claims Green Tree
lacked standing to file a foreclosure complaint. In addition,
defendant contends Green Tree did not mail the NOI to her in
accordance with the FFA. She further alleges that the various
assignments of the mortgage were invalid and the certification
supporting the validity of the assigned mortgages was deficient.
She also claims the payment history produced by Green Tree in
support of the default fails to demonstrate her nonpayment of the
loan.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Townsend v.
Pierre, 221 N.J. 36, 59 (2015). "Summary judgment must be granted
if 'the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
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there is no genuine issue as to any material fact challenged and
that the moving party is entitled to a judgment . . . as a matter
of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013)
(quoting R. 4:46-2(c)). We accord no special deference to the
trial judge's conclusions on issues of law. Nicholas v. Mynster,
213 N.J. 463, 478 (2013).
A party seeking to foreclose must demonstrate "execution,
recording, and non-payment of the mortgage." Thorpe v. Floremoore
Corp., 20 N.J. Super. 34, 37 (App. Div. 1952). In addition, the
foreclosing party must "own or control the underlying debt."
Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 222
(App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J.
Super. 592, 597 (App. Div. 2011)). In Mitchell, we held that
either possession of the note or an assignment of the mortgage
predating the original complaint conferred standing. Id. at 225.
In this case, based on the documentary evidence, Green Tree
had standing to proceed with the foreclosure action because it
possessed the note prior to mailing the NOI and filing the
foreclosure complaint. Green Tree, or its assignee, remained in
possession of the note throughout the proceedings. Green Tree
established, by way of admissible and competent proofs attached
to a proper certification, the validity of the mortgage, the amount
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of the indebtedness, and the right to resort to foreclosure of the
mortgaged premises.
Defendant failed to present any legally competent evidence
to support her bald allegations. The evidence upon which defendant
relied to challenge Green Tree's standing to proceed with the
foreclosure was not authenticated and was culled from the internet,
untethered to the note, mortgage, or any other documents relevant
to this matter.
Turning to defendant's argument that the NOI failed to comply
with the FFA, our review of the record confirms the NOI was served
on defendant in accordance with N.J.S.A. 2A:50-56. Froelich's
certification states the NOI was sent, by certified and regular
mail, to defendant at the mortgaged property's address.4 In
accordance with the statute, "[t]he notice is deemed to have been
effectuated on the date the notice is delivered in person or mailed
to the party." N.J.S.A. 2A:50-56(b).
We also reject defendant's argument that Froelich's
certification was deficient. Froelich certified that she had
particular knowledge regarding the maintenance of the records in
this matter and personally reviewed those records. Froelich was
competent to testify as to the information in her certification
4
We note that defendant's address in her appellate submissions
is the same address to which the NOI was mailed.
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pursuant to Rule 1:6-6. In addition, the information in Froelich's
certification was properly admitted under the business records
exception to the hearsay rule. See N.J.R.E. 803(c)(6).
On the challenge to the amount of the final judgment,
plaintiff supplied all of the documents required pursuant to Rule
4:64-2. Although defendant challenges the accuracy of the amount
due, she failed to present any proofs to support her challenge or
raise any material disputed facts.
Having reviewed the record, we agree that plaintiff
established a prima facie case for foreclosure. "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 mortgage premises." Great Falls Bank
v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273
N.J. Super. 542 (App. Div. 1994). Defendant did not dispute that
she signed the note and mortgage, defaulted on the payment, and
has not paid the mortgage since February 2011.
Defendant's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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