NATIONSTAR MORTGAGE, LLC VS. IRINA IUDINAÂ (F-4401-14, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-2993-15T1
NATIONSTAR MORTGAGE, LLC,
Plaintiff-Respondent,
v.
IRINA IUDINA,
Defendant-Appellant,
and
VASLILY VYPRYATHKIN, and
BANK OF AMERICA, N.A.,
Defendants.
_____________________________
Submitted May 2, 2017 – Decided August 4, 2017
Before Judges Yannotti and Sapp-Peterson.
On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. F-4401-14.
Irina Iudina, appellant pro se.
Sandelands Eyet, LLP, attorneys for respondent
(Raymond Kim, on the brief).
PER CURIAM
Defendant, Irina Iudina, appeals from various orders entered
by the trial court arising out of a foreclosure action. Those
orders: (1) denied defendant's motion to dismiss the foreclosure
complaint (December 19, 2014); (2) denied defendant's motion
seeking discovery regarding her loan payment history (February 20,
2015); (3) granted plaintiff's motion to strike defendant's answer
(February 25, 2015); (4) entered final judgment of foreclosure in
favor of plaintiff (July 14, 2015); (5) vacated a November 20,
2015 order granting defendant's motion to vacate the July 14, 2015
order and dismissing plaintiff's complaint with prejudice and, in
turn, restored the motion to the motion calendar (January 8, 2016);
and, (6) denied defendant's motion to set aside the July 14, 2015
judgment of foreclosure (February 18, 2016). We vacate the January
22, 2016 order and remand to the trial court for the entry of an
amended order reflecting that the order denying defendant's motion
to vacate the July 14, 2015 judgment of foreclosure was entered
on February 18, 2016, rather than January 22, 2016. We otherwise
affirm all of the orders under review.
By way of background, plaintiff executed a note in favor of
Bank of America in 2007, secured by property located in East
Brunswick. Through subsequent assignments, the mortgage was
ultimately assigned to Nationstar on May 22, 2013, and recorded
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in the Middlesex County Register's Office on June 21, 2013.
Defendant ceased making mortgage payments in 2011. As a result
of defendant's default, plaintiff sent defendant a Notice of Intent
to Foreclose on August 22, 2013, and thereafter filed its
foreclosure (NOI) complaint on February 6, 2014. Defendant filed
an answer, eighteen affirmative defenses, and five counterclaims.
Plaintiff moved for summary judgment and defendant cross-moved to
dismiss the complaint. Both motions were denied and the matter
proceeded to trial.
At trial, the court found that the only disputed issue before
the court was "who is the holder entitled to file this
[foreclosure] action." Based upon the evidence plaintiff
presented, which the court credited, the court found that the
Federal Home Loan Mortgage Corporation (Freddie Mac) executed a
valid assignment to Nationstar and that Nationstar came into
possession of the original note on October 24, 2013. The court
noted that this date "certainly predates the filing of the
complaint," and concluded that "Nationstar is deemed to be the
holder of the note." The court granted judgment in favor of
Nationstar, struck defendant's answer, affirmative defenses and
further noted that defendant submitted no proofs in support of her
counterclaims. The court returned the matter to the Foreclosure
Unit as an uncontested matter.
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The Foreclosure Unit entered a Final Judgment and Writ of
Execution July 14, 2015. By order dated November 20, 2015, the
court granted defendant's motion to vacate the final judgment and
dismiss the complaint. One month later, however, plaintiff filed
a motion to vacate the November 20, 2015 order. Plaintiff
contended that due to a change in law firms, newly assigned counsel
was unaware of the motion and therefore had not had the opportunity
to respond to defendant's motion. On January 8, 2015, the court
vacated the November 20, 2015 order and scheduled the matter for
a hearing on January 22, 2016. The court adjourned that hearing
date and thereafter conducted oral argument on the motion February
18, 2016. On that same date the court denied defendant's motion,
finding that there had been a trial in the matter and that
defendant's only recourse was an appeal. The court also determined
that the purported new evidence defendant submitted in support of
her motion was irrelevant to the foreclosure proceeding. The
present appeal followed.
On appeal, defendant contends: (1) the trial court improperly
enlarged the time period for reconsideration of the November 20,
2015 order; (2) improperly denied her motion to vacate the July
14, 2015 Judgment of Foreclosure, prior to conducting oral argument
on her motion; (3) the court failed to address her contention that
plaintiff had submitted misleading evidence during the trial,
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which the motion court acknowledged had in fact occurred when it
granted defendant relief from the judgment and dismissed the
complaint with prejudice on November 20, 2015; (4) the procedural
history of the matter subsequent to the entry of the November 20,
2015 order raises serious concerns about the predisposition of the
court and "may be considered a violation of fundamental due
process"; (5) the assignment of the note to Nationstar was invalid;
and (6) the NOI was defective because it failed to identify the
actual lender.
We have considered the arguments advanced by plaintiff in
light of the record and governing legal principles. Other than
remanding to the trial court for the entry of a corrected order
reflecting that defendant's motion to vacate the entry of final
judgment was denied on February 18, 2016, rather than on January
22, 2016, we reject all of the arguments advanced by defendant.
At the outset, contrary to defendant's contention, plaintiff
did not seek reconsideration of the order entered on November 20,
2015. Rather, as the January 8, 2016 order reflects, plaintiff's
motion sought to "Vacate the Order Entered November 20, 2015."
Thus, defendant's contention that the court improperly enlarged
the time within which plaintiff could seek relief from the November
20, 2015 order, and that plaintiff's application was untimely, is
entirely without merit.
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Turning to the January 22, 2016 order entered prior to the
return date of oral argument on February 18, 2016, once the trial
court vacated the November 20, 2015 order, it rescheduled oral
argument on defendant's motion for January 22, 2016. In accordance
with Rule 1:6-2(a), defendant's motion was "accompanied by a
proposed form of order," which the court utilized as the order
denying defendant's motion. The order is stamped, "Filed January
22, 2016[,] Frank M. Ciuffani, J.S.C." and is also marked
"opposed." Further, in addition to the judge's handwritten
signature affixed to the order, the date "22" and month "January"
are also handwritten on the document.
It is, however, undisputed that as of January 22, 2016, the
court had yet to receive plaintiff's opposition to defendant's
motion, which plaintiff subsequently filed on January 27, 2016.
It is equally undisputed that the court conducted oral argument
on the motion on February 18, 2016. In her Amended Notice of
Appeal, dated March 18, 2016, defendant certified that on January
22, 2016, there were "[n]o recordings, no oral argument and no
knowledge this motion was decided. Hearing was on February 18,
2016." At the time of the hearing, defendant advised the court
that "with regard to all of the arguments, I will rely on my
papers."
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Consequently, it is clear that the January 22, 2016 date on
the order denying defendant's motion is incorrect. The order
should have been dated February 18, 2016. We therefore remand the
matter to the trial court for the entry of a corrected order. See
R. 1:13-1 (authorizing a court on its own initiative to correct
clerical errors appearing on the face of an order).
Assuming, however, the court signed the order on January 22,
2016, because it concluded at that time, even without the benefit
of opposition from plaintiff, defendant was not entitled to relief,
it nonetheless afforded defendant the opportunity for oral
argument the following month. At that time, plaintiff advised the
court that she would rely upon the papers she submitted and
advanced no further arguments, notwithstanding having received
plaintiff's opposing papers in advance of the hearing. Plaintiff
offered nothing that altered the court's initial findings with
regard to her motion.
Next, in addressing the merits of defendant's motion to vacate
the entry of final judgment, based upon her contention plaintiff
lacked standing to foreclose, the trial court agreed with plaintiff
that the newly discovered evidence defendant presented, Freddie
Mac's Form 1036, Request for Physical or Constructive Possession
of Documents, was "not relevant and has no bearing on this case
whatsoever." We agree.
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In a foreclosure matter, a party seeking to establish its
right to foreclose on the mortgage must generally "own or control
the underlying debt." Deutsche Bank Nat'l Trust 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));
Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28, (Ch.
Div. 2010) (citations omitted). In Deutsche Bank Trust Co.
Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012),
we held that "either possession of the note or an assignment of
the mortgage that predated the original complaint confer[s]
standing," thereby reaffirming our earlier holding in Mitchell,
supra, 422 N.J. Super. at 216. At the foreclosure trial, the
trial court credited proofs plaintiff presented establishing that
it had a valid assignment, as well as presentation of the original
note and mortgage.
Defendant did not challenge the authenticity of these
documents nor their admissibility. As Form 1036 makes clear,
this is a document which a seller or servicer submits to Freddie
Mac when seeking the release of loan documents and is not part of
the proofs establishing standing to foreclose.
At the time of the trial, plaintiff had possession of the
original note, Angeles, supra, 428 N.J. Super. at 413, and
defendant presented no evidence that plaintiff obtained possession
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of the original note illegally. In addition, plaintiff presented
evidence that it had a valid assignment at the time the complaint
was filed in 2014. Ibid. Thus, the judgment of foreclosure in
favor of plaintiff was properly entered.
The remaining arguments advanced by defendant are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
The January 22, 2016 order is vacated and the matter remanded
for the entry of an amended order reflecting February 18, 2016,
as the date on which the court denied defendant's motion to vacate
the July 14, 2015 judgment of foreclosure. The orders on appeal
are otherwise affirmed in their entirety.
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