DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, ETC. VS. JANET SPINELLI (F-031822-15, 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NOT FOR PUBLICATION WITHOUT THE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-3642-16T4
DEUTSCHE BANK NATIONAL
TRUST COMPANY AMERICAS,
AS TRUSTEE FOR MORTGAGE
ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2006-Q09,
Plaintiff-Respondent,
v.
JANET SPINELLI f/k/a JANET CAMPISI,
STATE OF NEW JERSEY, and
UNITED STATES OF AMERICA,
Defendants,
and
LOUIS SPINELLI,
Defendant-Appellant.
______________________________
Submitted October 3, 2018 - Decided October 16, 2018
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. F-
031822-15.
Louis Spinelli, appellant pro se.
Sandelands Eyet, LLP, and RAS Citron, LLC, attorneys
for respondent (Mitchell E. Zipkin, of counsel and on
the brief).
PER CURIAM
In this foreclosure matter, defendant Louis Spinelli appeals from October
11 and November 18, 2016 orders, which granted plaintiff summary judgment,
dismissed defendants' answer, and denied defendant's cross-motion to dismiss
the complaint. We affirm.
The following facts are taken from the record. In August 2006, defendant
Janet Spinelli, executed a note to First National Bank of Arizona in the amount
of $424,000. To secure the note, Janet and Louis1 executed a mortgage to
Mortgage Electronic Registration Systems, Inc. (MERS), naming it as nominee
to First National, in fee, on their property located in Toms River. This mortgage
was recorded on August 30, 2006. Janet and Louis ceased paying the mortgage
in December 2011.
1
We utilize first names to differentiate defendants who bear the same surname.
We intend no disrespect.
A-3642-16T4
2
A notice of intention to foreclose (NOI) addressed to Janet was sent to the
residence. This notice stated the mortgage was in default, specified the amount
due in order to cure default, and the date by which the default must be cured in
order to avoid foreclosure. The notice identified Nationstar Mortgage LLC as
the payee and listed its contact information and address. The notice identified
the name and address of the lender as "'Deutsche Bank Trust Company Americas
as trustee for Residential Accredit Loans, Inc. Pass Through Certificates 2006-
QO9' 1761 E. St. Andrew Place, Santa Ana, CA 92705."
The mortgage was later assigned by MERS, as nominee for First National,
to plaintiff on February 26, 2015. This assignment was recorded on March 27 ,
2015. Plaintiff furnished the certification of Talya Harris, Document Execution
Specialist for Nationstar, the loan servicer and attorney-in-fact for plaintiff, who
certified to the date of the assignment. Harris also certified that based on her
review of business records kept in the ordinary course of business, plaintiff was
in possession of both the note and mortgage before plaintiff filed the foreclosure
complaint on September 18, 2015.
In September 2016, plaintiff filed a motion for summary judgment and to
strike defendants' answer. Louis filed a cross-motion to dismiss the complaint.
The motion judge granted plaintiff's motion. In a separate order, the judge
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denied defendant's cross-motion. Following the entry of final judgment in
March 2017, Louis filed this appeal.
On appeal, Louis argues he did not receive notice of assignment of the
mortgage to plaintiff and the notice plaintiff provided violated the Fair
Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -73. Louis argues plaintiff lacked
standing because it did not possess the original note. He asserts plaintiff did not
execute the assignment, and did not have legal title or the ability to foreclose.
Louis argues the motion judge treated his motion to dismiss as a motion for
reconsideration, and did not apply the summary judgment standard to adjudicate
it.
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
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"show[s] that there is no real material issue, then summary judgment should be
granted." Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258
(App. Div. 1987) (citing Judson v. Peoples Bank & 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) (citations omitted).
The right to foreclose arises upon proof of execution, recording of a
mortgage and note, and default on payment of the note. Thorpe v. Floremoore
Corp., 20 N.J. Super. 34, 37 (App. Div. 1952). Standing to foreclose derives
from N.J.S.A. 12A:3-301, which states:
"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 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.
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2012) (citing Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 216
(App. Div. 2011).
Furthermore, there is no requirement a mortgagor must receive notice of
a mortgage assignment. EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126,
141-42 (App. Div. 2008). Rather, "[w]hen an assignment is duly recorded, it
shall 'be notice to all persons concerned that [the] mortgage is so assigned.'" Id.
at 142 (alteration in original) (citing N.J.S.A. 46:18-4). "Mortgagors are
'persons concerned' under the statute." Ibid.The arguments raised by Louis on appeal lack merit. The mortgage Louis
signed included a "Transfer of Rights in the Property" clause, which stated the
mortgage could be assigned. The certification from Harris and the filed
assignment established plaintiff's possession of the mortgage note before the
complaint was filed. Therefore, plaintiff had standing to file the foreclosure
complaint.
We also reject Louis's argument the notice of intention to foreclose was
invalid under the FFA. N.J.S.A. 2A:50-56(c) requires a written notice be sent
to a defaulting debtor to "clearly and conspicuously state in a manner calculated
to make the debtor aware of the situation[.]" The statute also requires:
[T]he name and address of the lender and the telephone
number of a representative of the lender whom the
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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.
[N.J.S.A. 2A:50-56(c)(11).]
Louis relies on US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449 (2012),
to challenge the form of the notice sent here and claims the case supports his
contention plaintiff did not comply with N.J.S.A. 2A:50-56(c)(11). We
disagree.
In Guillaume, the defendant contended the plaintiff "violated the FFA by
listing the name and address of a loan servicer—rather than the name of the
lender itself—on the Notice of Intention of foreclosure[.]" 209 N.J. at 457. "The
name and address of the lender, U.S. Bank, did not appear anywhere on the
notice of intention." Id. at 460. The Court reviewed the notice of intention
applying the equitable doctrine of substantial compliance and the following
factors:
(1) the lack of prejudice to the defending party; (2) a
series of steps taken to comply with the statute
involved; (3) a general compliance with the purpose of
the statute; (4) a reasonable notice of petitioner's claim;
(5) a reasonable explanation why there was not a strict
compliance with the statute.
[Id. at 473 (citing Galik v. Clara Maass Med. Ctr., 167
N.J. 341, 353 (2001)).]
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The Court concluded the notice of intention listing the loan servicer instead of
the lender did not achieve substantial compliance with N.J.S.A. 2A:50-
56(c)(11). Id. at 474.
The facts here are inapposite. In Guillaume, the notice of intent listed
only the name and address of the loan servicer, and did not identify the lender.
209 N.J. at 457, 460. Here, the NOI Janet received identified Nationstar and set
forth its address for transmittal of payments to cure the mortgage default.
Additionally, the notice set forth plaintiff's name and address, and identified
plaintiff as the "'Lender' as defined by New Jersey's Fair Foreclosure Act." The
notice here complied with the FFA and was not deficient.
For these reasons, summary judgment in plaintiff's favor was properly
granted. To the extent we have not addressed the other arguments asserted by
Louis, it is because they lack sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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