JPMORGAN CHASE BANK, NA VS. SIMON ZAROUR (F-022587-16, MOMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-0951-17T4
JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,
Plaintiff-Respondent,
v.
SIMON ZAROUR,
Defendant-Appellant,
and
LORI ZAROUR, husband and wife,
LYNX ASSET, and FRANKS GMC
TRUCK CENTER,
Defendants.
_________________________________
Submitted September 12, 2019 – Decided September 24, 2019
Before Judges Nugent and Suter.
On appeal from the Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No. F-
022587-16.
Simon Zarour, appellant pro se.
McCalla Raymer Leibert Pierce, attorneys for
respondent (Brian P. Scibetta, on the brief).
PER CURIAM
Defendant Simon Zarour appeals a September 15, 2017 order that denied
his motion to set aside the final judgment of foreclosure and other orders entered
in the course of the foreclosure action. These include the April 13, 2017 order
that denied his motion to extend discovery; the May 12, 2017 orders that granted
summary judgment to plaintiff, JP Morgan Chase Bank, National Association,
struck defendant's answer and entered default, and denied defendant's cross-
motion for summary judgment; and the August 17, 2017 final judgment of
foreclosure. He claims the trial court abused its discretion by finding plaintiff
had standing to foreclose and by denying his motion to challenge the amount
due and owing. He asserts plaintiff's foreclosure complaint was filed beyond
the applicable statute of limitations. We affirm the trial court's orders, including
its finding that a twenty-year statute of limitations applied.
On September 20, 2007, defendant executed a $5 million promissory note
in favor of Washington Mutual Bank, FA (WaMu). As security for payment of
the note, defendant and his wife Lori Zarour executed a mortgage to WaMu for
a property located in Monmouth Beach. Defendant defaulted on the loan in
August 2008, and has not made payments since then. The note was endorsed in
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blank. The mortgage was assigned to plaintiff by the Federal Deposit Insurance
Corporation (FDIC) as receiver for WaMu on October 19, 2015, and recorded.
See Suser v. Wachovia Mortg., FSB, 433 N.J. Super. 317, 323-24 (App. Div.
2013) (explaining the FDIC became receiver for WaMu pursuant to 12 U.S.C. §
1821(d)).
After a notice of intention to foreclose was sent to defendant, who did not
cure the default, plaintiff filed a foreclosure complaint on August 15, 2016.
Defendant's contesting answer was stricken on May 12, 2017, when the trial
court granted summary judgment to plaintiff and denied defendant's cross-
motion to dismiss the foreclosure complaint. 1 Based on a certification from
plaintiff's representative, the trial court found that "plaintiff possessed the
original note, properly endorsed when the action was commenced and therefore
was the holder thereof." It also determined "plaintiff [had] standing by virtue
of a pre-complaint assignment of the mortgage to the plaintiff." The trial court
found plaintiff showed a "prima facie right to foreclose" because it found that
the elements set forth in Great Falls Bank v. Pardo, 263 N.J. Super. 388 (Ch.
1
This followed the denial on April 13, 2017, of defendant's motion to extend
discovery. Defendant listed that order in his notice of appeal, but did not address
it substantively in his appellate brief. Because of this, its appeal is waived. See
Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).
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Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994), were satisfied. It
rejected defendant's argument that a six-year statute of limitations applied,
finding that a twenty-year statute was applicable.
Plaintiff filed a motion to enter a final judgment of foreclosure supported
by a certification of the amount due. Plaintiff's authorized representative
certified that the schedules attached to the motion correctly stated "any advances
made or to be made by or on behalf of the plaintiff, that such advances were, in
fact, made." These included substantial amounts advanced for the payment of
real estate taxes and homeowner's insurance premiums. Defendant did not file
opposition to the motion, and a final judgment of foreclosure was entered on
August 17, 2017, for $7,726,406.25.
Shortly after, defendant filed a motion to set aside the final judgment and
fix the amount due. Plaintiff filed opposition. The trial court denied the motion
on September 15, 2017, finding defendant had not satisfied the requirements of
Rule 4:50-1. He did not indicate which subsection of the Rule applied to his
case. The court found plaintiff's "proofs are sufficient" and defendant had not
"offered any evidence to call into question the correctness of the amount of the
final judgment being sought."
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On appeal, defendant argues the trial court erred because plaintiff's
foreclosure complaint was filed beyond the statute of limitations that applied, it
had no standing to file for foreclosure, and it had not shown the amount due was
accurate.
A decision to vacate a judgment or order lies within the sound discretion
of the trial court, guided by principles of equity. Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 283 (1994). We will reverse the trial court's decision on a
motion to vacate where there is an abuse of discretion. Ibid. An "abuse of
discretion only arises on demonstration of 'manifest error or injustice.'" Hisenaj
v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572,
(2005)). It occurs when the "'decision [was] made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" United States ex rel. U.S. Dep't of Agric. v. Scurry, 193
N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cty.
Prosecutor, 171 N.J. 561, 571 (2002)). However, our review of a trial court's
legal determinations is plenary. D'Agostino v. Maldonado, 216 N.J. 168, 182-
83 (2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995)). Whether a cause of action is barred by a statute of
limitations is a legal question subject to our de novo review. See Estate of
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Hainthaler v. Zurich Commercial Ins., 387 N.J. Super. 318, 325 (App. Div.
2006) (citations omitted).
Defendant argues the trial court should have applied a six-year statute of
limitations. In Deutsche Bank Tr. Co. v. Weiner, 456 N.J. Super. 546, 548-49
(App. Div. 2018), we recently held the twenty-year statute of limitations under
N.J.S.A. 2A:50-56.1(c)2 applied when a mortgagor has defaulted, and the default
has not been cured. In that foreclosure case, the defendants argued the six-year
statute of limitations under N.J.S.A. 2A:50-56.1(a) "was triggered . . . when their
default triggered the loan's acceleration." Id. at 548. We disagreed with that
interpretation, holding that section (c) "specifically provide[d] a time frame to
be considered upon an uncured default." Id. at 549.
The analysis in Weiner is applicable here. Under N.J.S.A. 2A:50-56.1
there are three possible statutes of limitations for a residential mortgage, the
earliest of which is to be applied:
• Six years from "the date fixed for the making of the
last payment or the maturity date set forth in the
mortgage or the note," N.J.S.A. 2A:50-56.1(a);
• Thirty-six years from the date the mortgage was
recorded or, if not recorded, from the date of execution,
N.J.S.A. 2A:50-56.1(b); and
2
This section was amended effective April 29, 2019 to provide a six-year statute
of limitations. See L. 2019, c. 67, §1.
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• Twenty years from the date of a default that "has not
been cured," N.J.S.A. 2A:50-56.1(c).
[Weiner, 456 N.J. Super. at 547.]
N.J.S.A. 2A:50-56.1(a)'s reference to "the maturity date" means the
maturity date set forth in the note or mortgage. In this case, that date is October
1, 2047. Six years from that date is the year 2053. The date derived from
subsection "b" also is substantially in the future. N.J.S.A. 2A:50-56.1(c) sets
forth the earliest of the statute of limitations. In this case, twenty-years from
the default date of August 1, 2008 is 2028. Plaintiff's complaint, filed in 2016,
was well within this statute of limitations.
Defendant's argument is without merit that N.J.S.A. 2A:50-56.1 should
not apply because this was not a residential mortgage. In the mortgage
document that defendant signed, he represented that as the borrower, he would
occupy the property as his principal residence at least for a year unless the lender
otherwise agreed in writing. The form used for the mortgage was for a "single
family." His argument on this issue simply was not supported by the loan
documents.
Defendant is incorrect that the six-year statute of limitations in N.J.S.A.
12A:3-118(a) applied. Under that statute, "an action to enforce the obligation
of a party to pay a note payable at a definite time must be commenced within
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six years after the due date or dates stated in the note or, if a due date is
accelerated, within six years after the accelerated due date." N.J.S.A. 12A:3-
118(a). Here, plaintiff was not enforcing the note; it was foreclosing on the
mortgage, making N.J.S.A. 12A:3-118 inapplicable.
Defendant argues the court abused its discretion in finding plaintiff had
standing to foreclose. A party seeking to establish its right to foreclose on a
mortgage must generally "[']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)). See also Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch.
Div. 2010). In Deutsche Bank Tr. Co. Ams. 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.
We are satisfied the trial court did not abuse its discretion in concluding
plaintiff had standing to foreclose. Plaintiff's representative certified that it was
in possession of the note prior to filing the foreclosure complaint , and that the
mortgage was assigned to plaintiff in 2015. We agree with the trial court that
these proofs satisfied Angeles' requirements. There was no indication from the
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record the court made any credibility decision; defendant did not refute
plaintiff's proofs.
Defendant's argument that the court abused its discretion by determining
the amount due is not supported. Defendant did not challenge the amount due
until after the final judgment was entered, even though objections had to be
made within ten days. See Rule 4:64-1(d)(3)-(4). Plaintiff's authorized
representative certified that the supporting certifications were correct and that
the advances set forth in the schedules were made. These showed that
substantial amounts were advanced for real estate taxes and homeowner's
insurance premiums. Defendant did not argue that he paid the taxes or
homeowners insurance, nor did he show there was a tax lien or cancelled
insurance policy. He did not show any error with the amount plaintiff claimed
was due.
Defendant's remaining arguments 3 are without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
3
Defendant raised an issue in his reply brief that he filed for bankruptcy in
September 2015 and that the assignment violated the automatic stay. It does not
appear defendant raised this issue before the trial court. We need not consider
defendant's arguments not raised in the trial court. Selective Ins. Co. of Am. v.
Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973).
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Affirmed.
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