U.S. BANK TRUST, NA, ETC. VS. MATTHEW C. WALDMAN (F-016195-15, GLOUCESTER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4685-17T4
U.S. BANK TRUST, NA, AS
TRUSTEE FOR LSF9 MASTER
PARTICIPATION TRUST,
Plaintiff-Respondent,
v.
MATTHEW C. WALDMAN,
Defendant-Appellant,
and
MRS. MATTHEW C. WALDMAN,
WIFE OF MATTHEW C. WALDMAN,
and MARIA M. WALDMAN,
Defendants.
_______________________________
Submitted May 16, 2019 – Decided May 30, 2019
Before Judges Simonelli and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Gloucester County, Docket No. F-
016195-15.
Matthew C. Waldman, appellant pro se.
McCalla Raymer Leibert Pierce, LLC, attorneys for
respondent (Brian P. Scibetta, on the brief).
PER CURIAM
In this residential foreclosure matter, defendant Matthew C. Waldman
appeals from the August 21, 2015 Chancery Division order granting the motion
of Nationstar Mortgage LLC (Nationstar) 1 for summary judgment and striking
defendant's answer. Defendant also appeals from the April 29, 2016 order
denying his motion to vacate the August 21, 2015 order.2 We affirm.
On June 29, 2011, defendant executed a note to E Mortgage Management
LLC (E Mortgage) in the amount of $239,000. E Mortgage executed an allonge
making the note payable to Bank of America, N.A (BNA). BNA endorsed the
note in blank, which transformed the note into a negotiable instrument
1
On June 16, 2017, the trial court substituted U.S. Bank Trust, N.A., as Trustee
for LSF9 Master Participation Trust (U.S. Bank) as plaintiff.
2
Defendant also appealed from the April 1, 2016, June 16, 2017, April 27, 2018
orders and the April 30, 2018 final judgment, but did not address these orders
or the final judgment in his merits brief. Therefore, any issues relating thereto
are deemed waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App.
Div. 2011); Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 2:6-2
(2019).
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enforceable by possession alone. See N.J.S.A. 12A:3-201(a) and N.J.S.A.
12A:3-205(b).
To secure payment of the note, defendant and defendant Maria M.
Waldman executed a mortgage to Mortgage Electronic Registration System, Inc.
(MERS), as nominee for E Mortgage, on their property in Williamstown. The
mortgage was recorded with the Gloucester County Clerk on July 11, 2011.
On February 19, 2014, MERS executed a corporate assignment of
mortgage to Nationstar. The assignment was recorded with the Gloucester
County Clerk on March 14, 2014.
Defendant defaulted on the note on March 1, 2014, and has made no
payment since. On June 3, 2014, Nationstar served defendant with a notice of
intention to foreclose (NOI). The NOI identified Nationstar as the lender and
provided Nationstar's contact information. Defendant failed to cure.
On May 5, 2015, Nationstar filed a foreclosure complaint. On June 12,
2015, defendant filed an answer and asserted twelve affirmative defenses,
including lack of standing.
On July 23, 2015, Nationstar filed a motion for summary judgment. In
support thereof, Nationstar submitted a certification from an authorized
representative, who certified that she reviewed Nationstar's business records in
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this matter, confirmed defendant's execution of the note and mortgage and the
recording of the assignment, and confirmed that the original note was presently
in Nationstar's physical possession and was in Nationstar's possession at the time
Nationstar filed the complaint. The representative attached a true copy of the
note and assignment to the certification. Defendant did not file opposition. The
trial court found that Nationstar met the standards for foreclosure and was
entitled to summary judgment. The court entered an order on August 21, 2015,
granting the motion.
On February 8, 2016, Nationstar filed a motion for final judgment of
foreclosure. In response, defendant filed a motion to fix the amount due. He
also filed a motion to vacate the August 21, 2015 order and dismiss the
complaint, challenging Nationstar's standing. Defendant argued that Federal
Home Loan Mortgage Corporation (Freddie Mac) was the owner and holder of
the note and Nationstar was merely the loan servicer. Defendant also argued
Nationstar produced no evidence it had possession of the original note when it
filed the complaint; the NOI did not comply with US Bank National Association
v. Guillaume, 209 N.J. 449 (2012); the assignment to Nationstar was invalid;
and the evidence did not support summary judgment.
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In an April 29, 2016 order, the court denied defendant's motion to vacate
the August 21, 2015 order and dismiss the complaint for the reasons the court
expressed in granting summary judgment. In a Statement Pursuant to Rule 2:5-
1(b), the court added that the document from Freddie Mac attached to
defendant's certification in support of his motion were not certified as true
copies as required by Rule 2:6-6 and did not prove Freddie Mac was the owner
of the note and mortgage. The court also found Nationstar had submitted a true
copy of the note, and the true copy of the recorded assignment Nationstar
submitted indicated Nationstar was the owner of the mortgage. In a June 16,
2016 order, the court denied final judgment for failure to respond to a return
notice.
On February 21, 2017, Nationstar executed an assignment of mortgage to
U.S. Bank. The assignment was recorded with the Gloucester County Clerk on
March 1, 2017. Thereafter, Nationstar filed a motion to substitute U.S. Bank as
plaintiff. Defendant did not oppose the motion. In a June 16, 2017 order, the
court granted the motion.
On March 26, 2018, U.S. Bank filed a motion for final judgment of
foreclosure. In support, U.S. Bank submitted a certification of proof of amount
due and schedule from David Nilsen, an authorized representative of Caliber
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Home Loans, Inc. (Caliber), the mortgage loan servicer for U.S. Bank. Nilsen
certified that "[a]s the mortgage servicer, Caliber is authorized to service and
handle mortgage transactions involving the mortgage debtors named in the
[p]laintiff's complaint." Nilsen reviewed Caliber's business records in this
matter. He also reviewed the entries, calculations, and amounts indicated on the
schedule of amount due attached to his certification, and certified that they were
"correctly stated." The schedule of amount due indicated defendant owed
$312,261.05.
In response, defendant filed a motion to fix the amount due and argued
that Nilsen lacked personal knowledge to certify and authenticate the amount
due. The court rejected that argument, finding Nilsen's certification satisfied
N.J.R.E. 803(c)(6) and Rule 1:6-6, and was admissible and reliable. The court
also found defendant failed to specifically attack any entry on the schedule of
amount due. The court entered a final judgment of foreclosure on April 30,
2018.
On appeal, defendant raises substantially the same arguments he raised
before the trial court. We have considered these arguments in light of the record
and applicable legal principles and conclude they are without sufficient merit to
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warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make
the following brief comments.
"As a general proposition, a party seeking to foreclose a mortgage must
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, N.A. v. Ford,
418 N.J. Super. 592, 597 (App. Div. 2011)). "[E]ither possession of the note or
an assignment of the mortgage that predated the original complaint confer[s]
standing." Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 318
(App. Div. 2012). "[S]tanding is not a jurisdictional issue in our State court
system and, therefore, a foreclosure judgment obtained by a party that lacked
standing is not 'void' within the meaning of Rule 4:50-1(d)." Deutsche Bank
Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012). The
judgment is "voidable" unless the plaintiff has standing from either possession
of the note or an assignment of the mortgage that predated the original
complaint. See Angeles, 428 N.J. Super. at 319-20.
There is sufficient proof that Nationstar had both possession of the
original note and a valid assignment of the mortgage prior to filing the
foreclosure complaint. Accordingly, the court properly granted summary
judgment to U.S. Bank.
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Affirmed.
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