HSBC BANK, ETC. VS. DORIS ODOEMENE (F-006184-08, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0256-17T2
HSBC BANK USA, NA,
as trustee for NOMURA ASSET
ACCEPTANCE CORPORATION
MORTGAGE PASS-THROUGH
CERTIFICATES SERIES 2006-AF2,
Plaintiff-Respondent,
v.
DORIS ODOEMENE and
EMMANUEL ODOEMENE,
Defendants-Appellants,
and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS,
INC., as a nominee for ALTERNA
MORTGAGE CO., its successors
and assigns, and STATE OF NEW
JERSEY,
Defendants.
_______________________________
Submitted November 1, 2018 – Decided March 11, 2019
Before Judges Whipple and DeAlmeida.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
006184-08.
Doris Odoemene and Emmanuel Odoemene, appellants
pro se.
Reed Smith LLP, attorneys for respondent (Henry F.
Reichner, of counsel; Brian P. Matthews, on the brief).
PER CURIAM
Defendants Doris Odoemene and Emmanuel Odoemene appeal from
several orders of the Chancery Division, including an August 1, 2017 final
judgment of foreclosure. We affirm.
I.
On March 16, 2006, Doris 1 executed a promissory note to Alterna
Mortgage Co. (Alterna) in the amount of $508,000. On the same day, to secure
the note Doris executed a mortgage encumbering property in Newark to
Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for Alterna.
The mortgage was recorded on March 23, 2006.
1
Because defendants share a last name, we refer to them by their first names.
No disrespect is intended.
A-0256-17T2
2
On July 28, 2006, plaintiff HSBC Bank USA, NA, as Trustee for Nomura
Asset Acceptance Corporation Mortgage Pass Through Certificates Series 2006-
AF2 (HSBC) acquired the note and mortgage in a transaction involving more
than 1500 loans. The note is endorsed in blank. A written assignment of the
mortgage to HSBC was not executed at that time.
Doris defaulted on the note on November 1, 2007. On February 14, 2008,
HSBC filed a foreclosure complaint in the Chancery Division. A month later,
on March 10, 2008, MERS, as nominee for Alterna, executed a written
assignment of the mortgage to HSBC. Defendants filed an answer on March 24,
2008, contesting HSBC's standing to file the complaint. The assignment of the
mortgage to HSBC was recorded on April 4, 2008. An April 20, 2009 corrective
assignment of mortgage addressing a "court inquiry regarding the notarization"
of the original assignment was recorded on May 4, 2009.
On August 17, 2009, HSBC filed a motion for summary judgment striking
the answer. In support of the motion, HSBC filed a statement of undisputed
material facts detailing the history of the mortgage, and certifications from
authorized representatives of America's Servicing Company, the loan servicer
for HSBC. The certifications stated that as of April 2009, Doris owed
$604,557.83 on the note and mortgage, and recounted HSBC's acquisition of the
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note and mortgage on July 28, 2006. Defendants opposed the motion and cross-
moved to dismiss the complaint. They argued that HSBC lacked standing to file
the complaint and issued a notice of intent to foreclose that did not comply with
the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -73. In addition, they
argued that HSBC's counsel violated attorney ethics rules by alleging in the
complaint that the mortgage had been assigned to HSBC.
On January 26, 2011, the trial court granted HSBC's motion for summary
judgment, struck defendants' answer, and entered default against them. The
court also denied defendants' cross-motion. In its detailed written opinion, the
trial court held that although the written assignment of the mortgage to HSBC
was not executed until after the filing of the foreclosure complaint, HSBC
obtained an interest in and possession of the note in the July 2006 transaction,
giving it standing to file the complaint. In reaching this conclusion, the court
relied on a July 1, 2006 Pooling and Servicing Agreement listing defendants'
note as an asset transferred to HSBC in the later transaction.
The court also concluded that the notice of intent to foreclose served on
defendants by HSBC was valid because the FFA applies only to foreclosures on
residential properties, Cho Hung Bank v. Kim, 361 N.J. Super. 331, 343 (App.
Div. 2003), and defendants conceded that the mortgage concerns an investment
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property. Finally, the court concluded that in light of its decision regarding
HSBC's interest in the note, the bank's attorneys did not violate ethics rules by
alleging in the complaint that the mortgage had been assigned to the bank. The
court also denied defendants' motion to dismiss the complaint. On April 19,
2011, the trial court denied defendants' motion for reconsideration.
The complaint was thereafter dismissed for lack of prosecution. On
November 21, 2014, the trial court entered an order reinstating the complaint.
On June 3, 2016, HSBC moved for final judgment of foreclosure. In
support of the motion, the bank submitted a certification of an employee of the
entity servicing the note detailing the amount due and owing on the note.
Defendants opposed the motion and cross-moved to dismiss the complaint.
On January 23, 2017, the trial court denied defendants' cross-motion and
their objections to the final judgment. The court concluded that defendants
failed to produce any evidence supporting their claim that HSBC's
representation of the amount due and owing on the note was incorrect.
On April 6, 2017, HSBC renewed its motion for final judgment to update
the certification of the amount due on the note. Defendants opposed entry of
final judgment and contested the amount due.
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On July 21, 2017, the trial court denied defendants' objection to the
amount due, concluding that they produced no credible evidence in support of
their position. The court, instead, adopted the representations made in a
certification filed by HSBC. On August 1, 2017, the trial court entered a final
judgment of foreclosure.
This appeal followed. Defendants appeal from the January 26, 2011,
January 23, 2017, and July 21, 2017 orders, as well as the August 1, 2017 final
judgment of foreclosure. 2
II.
We review the trial court's decision granting summary judgment de novo,
using "the same standard that governs trial courts in reviewing summary
judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.
162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant
2
In their notice of appeal, defendants list the May 12, 2015, October 9, 2015,
and February 4, 2016 orders of the trial court extending the time for HSBC to
file a motion for entry of final judgment, the April 19, 2011 order denying their
motion for reconsideration, and the November 21, 2014 order reinstating the
complaint. Because defendants make no substantive arguments with respect to
these orders we consider their appeal from these orders waived. "[A]n issue not
briefed is deemed waived." Pressler and Verneiro, Current N.J. Court Rules,
cmt. 5 on R. 2:6-2 (2019); Telebright Corp. v. Dir., Div. of Taxation, 424 N.J.
Super. 384, 393 (App. Div. 2012) (deeming a contention waived when the party
failed to include any arguments supporting the contention in its brief).
A-0256-17T2
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summary judgment when "the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." "Thus, the movant must
show that there does not exist a 'genuine issue' as to a material fact and not
simply one 'of an insubstantial nature'; a non-movant will be unsuccessful
'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167
(quotations omitted).
Self-serving assertions that are unsupported by evidence are insufficient
to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan
Servicing, LP, 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent
opposition requires 'competent evidential material' beyond mere 'speculation'
and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.
415, 426 (App. Div. 2009) (citations omitted). We review the record "based on
our consideration of the evidence in the light most favorable to the parties
opposing summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J. 520,
523-24 (1995).
Defenses to a foreclosure are narrow. "The only material issues in a
foreclosure proceeding are the validity of the mortgage, the amount of the
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indebtedness, and the right of the mortgagee to" foreclose on the property. Great
Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J.
Super. 542, 547 (App. Div. 1994).
In the trial court, defendants challenged both the amount of indebtedness
on their note and HSBC's standing to foreclose. They reiterate those arguments
on appeal. Having carefully reviewed defendants' arguments in light of the
record and applicable legal principles, we conclude that there is ample evidence
supporting the trial court's findings of fact and conclusions of law rejecting
defendants' arguments.
To have a right to foreclose "a party . . . must own or control the
underlying debt." Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28
(Ch. Div. 2010). Standing is established by "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. 2012). A
certification from a representative of HSBC's loan servicing entity supports the
trial court's finding that HSBC obtained its interest in and possession of the note
in July 2006, prior to the filing of the foreclosure complaint. That certification
was completed by a person familiar with business records memorializing the
transfer and the details of the note. Defendants offered no credible evidence
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that the business records on which the certification was based were unreliable
or incorrect, or that HSBC did not possess the note on the day the complaint was
filed.
We reach the same conclusion with respect to the trial court's findings
regarding the amount due and owing on the note. HSBC submitted certifications
based on business records detailing defendants' outstanding debt. Defendants
produced no specific or convincing evidence challenging the amounts proffered
by HSBC. Nor did defendants establish that they made a single payment on
their debt after the November 2007 default. The trial court's findings are amply
supported by the record.
To the extent we have not specifically addressed any of defendants'
remaining claims, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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