U.S. BANK TRUST, N.A., ETC. VS. KUNLE ADAMSON (F-030071-16, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-2191-18
U.S. BANK TRUST, N.A., as
Trustee for LSF9 Master
Participation Trust,
Plaintiff-Respondent,
v.
KUNLE ADAMSON, PH.D.,
Defendant-Appellant,
and
MRS. ADAMSON, unknown
spouse of KUNLE ADAMSON,
PH.D., U.S. BANK NATIONAL
ASSOCIATION, as Trustee for
Citigroup Mortgage Loan Trust
2007-WFHE3, Asset-Backed Pass-
Through Certificates, Series
20047-WFHE3, and STATE OF
NEW JERSEY,
Defendants.
_____________________________
Submitted September 16, 2021 – Decided October 12, 2021
Before Judges Gilson and Gummer.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No.
F-030071-16.
Kunle Adamson, Ph.D., appellant pro se.
Stern & Eisenberg, PC, attorneys for respondent
(Salvatore Carollo, on the brief).
PER CURIAM
In this residential foreclosure action, defendant Kunle Adamson appeals
from two orders and a final judgment: an August 25, 2017 order granting
summary judgment to plaintiff U.S. Bank Trust, N.A., as Trustee for LSF9
Master Participation Trust (plaintiff or U.S. Bank); a December 6, 2018 order
denying defendant's objections to the final judgment; and a final judgment
entered on December 19, 2018. We affirm.
I.
The record establishes the material facts. In July 2005, defendant
borrowed $297,007.95 from Wells Fargo Financial New Jersey, Inc. (Wells
Fargo). In connection with that loan, defendant signed a promissory note and
mortgage. The mortgage was duly recorded. In September 2008, defendant
defaulted by failing to pay what was due under the note and since that time he
has not cured the default.
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In 2009, Wells Fargo sued defendant in a foreclosure action. A year later,
in October 2010, the action by Wells Fargo was dismissed without prejudice
because Wells Fargo had failed to produce certain discovery. Wells Fargo later
moved to reinstate its foreclosure action, but that motion and defendant's cross -
motion to dismiss the action with prejudice were denied in January 2011.
In June 2016, Wells Fargo assigned defendant's mortgage to U.S. Bank,
and that assignment was duly recorded. Two months later, U.S. Bank sent
defendant a notice of default and its intent to foreclose if the default was not
cured. Defendant did not cure the default. Accordingly, in November 2016,
U.S. Bank filed an action of foreclosure on the mortgage.
Defendant filed an answer, contesting the foreclosure and asserting
numerous affirmative defenses. Thereafter, the parties exchanged discovery
demands. In March 2017, U.S. Bank moved for summary judgment and to strike
defendant's answer. Defendant opposed that motion but did not request oral
argument.
On August 25, 2017, the Chancery court granted summary judgment to
U.S. Bank, supporting that order with a written statement of reasons. The
Chancery court found that the record established that the mortgage was valid,
defendant had defaulted on the debt, and U.S. Bank, as the assignee of the
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mortgage and holder of the note, had the right to foreclose on the property
secured by the mortgage. In support of those findings, the Chancery court relied
on a certification establishing that U.S. Bank possessed the note and the
mortgage had been assigned to U.S. Bank before U.S. Bank filed its foreclosure
action. The court also found that defendant had produced no evidence that he
had cured his default or made any payments on the loan since September 2008.
The Chancery court also reviewed but rejected defendant's affirmative
defenses. The court found that none of those defenses, including defendant's
claim of predatory lending or fraud, were supported by competent evidence.
Instead, the court found that all those defenses were based on general allegations
that failed to plead particular facts needed to support such claims, including any
facts that would support a claim of a violation of the Consumer Fraud Act. The
Chancery court also found that defendant had failed to properly present many of
his affirmative defenses and those defenses were, therefore, deemed abandoned.
Defendant moved for reconsideration. In an order and statement of
reasons issued on May 4, 2018, the Chancery court denied that motion. The
court found that defendant had not properly raised the issue of outstanding
discovery in opposing summary judgment. Nevertheless, the court reviewed
defendant's contentions but found that the alleged missing discovery did not
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demonstrate that there was any material disputed facts that prevented summary
judgment in favor of U.S. Bank.
Thereafter, U.S. Bank moved for entry of a final judgment. Defendant
opposed, and following oral argument, the Chancery court denied defendant's
objections. A memorializing order was entered on December 6, 2018. On
December 19, 2018, a final judgment was entered. A month later, defendant
filed his notice of appeal.
In early April 2019, a sheriff's sale of the property was scheduled. That
sale was adjourned when defendant filed for bankruptcy. The appeal was also
dismissed but later reinstated when defendant received permission to lift the
automatic bankruptcy stay so that this appeal could proceed.
II.
Defendant, who is representing himself, makes six primary arguments on
appeal. He contends that the Chancery court erred by (1) not conducting oral
argument on the summary judgment motion and, thereby, failing to accord
defendant an opportunity to cross-examine plaintiff; (2) not compelling plaintiff
to respond to discovery; (3) granting summary judgment prematurely; (4) not
allowing defendant to recover damages from plaintiff for fraud, predatory
lending, and alleged violations of the Consumer Fraud Act (CFA), N.J.S.A.
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56:8-1 to -210; (5) not accepting defendant's contention that plaintiff had given
a loan modification before seeking foreclosure; and (6) rejecting defendant's
third-party beneficiary claims regarding the loan purchasing agreement.
Having reviewed the record, we find that none of defendant's arguments
have merit. Defendant's arguments are based on conclusory contentions that are
not supported by competent evidence in the record.
In an action to foreclose a mortgage, the only material issues are "the
validity of the mortgage, the amount of the indebtedness, and the right of the
mortgagee to resort to the mortgaged premises." U.S. Bank Nat'l Ass'n v.
Curcio, 444 N.J. Super. 94, 112-13 (App. Div. 2016) (quoting Sun NLF Ltd.
P'ship v. Sasso, 313 N.J. Super. 546, 550 (App. Div. 1998)). A foreclosure
action will be deemed uncontested if "none of the pleadings responsive to the
complaint either contest the validity or priority of the mortgage or lien being
foreclosed or create an issue with respect to plaintiff's right to foreclose it." R.
4:64-1(c)(2).
In support of its summary judgment, U.S. Bank submitted a certification
and documents establishing that (1) defendant signed a note and mortgage
securing a loan he took; (2) defendant defaulted on the loan and has not cured
that default; (3) the mortgage was assigned to U.S. Bank; and (4) U.S. Bank
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filed an action for foreclosure and supported that action with proof that it held
the note.
Defendant does not dispute that he signed the note and mortgage. Instead,
he tries to contend that U.S. Bank does not have standing to enforce the
mortgage. His contentions in that regard, however, are not supported by any
competent evidence in the record. To demonstrate standing, a plaintiff is
required to prove either 1) possession of the note, or 2) assignment of the
mortgage prior to initiating the foreclosure action. See Deutsche Bank Nat'l Tr.
Co. v. Mitchell, 422 N.J. Super. 214, 223-25 (App. Div. 2011); Deutsche Bank
Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Here, the
record establishes that U.S. Bank had been assigned the mortgage before filing
the complaint and possessed the note. Consequently, U.S. Bank had standing to
bring the foreclosure action.
Defendant also asserts that his original loan was the result of predatory
lending or fraud. The record, however, contains no facts to support that
contention. Instead, defendant made general allegations about reports of
predatory lending by Wells Fargo, but he fails to submit any competent evidence
that his loan was the result of such predatory lending. Indeed, defendant has not
even pled specific facts to support a claim of predatory lending. "In all
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allegations of misrepresentation [or] fraud . . . particulars of the wrong, with
dates and items if necessary, shall be stated insofar as [is] practicable." R. 4:5-
8(a). Defendant's reference to the CFA does not provide an exception to this
heightened pleading standard. See Hoffman v. Hampshire Labs, Inc., 405 N.J.
Super. 105, 112 (App. Div. 2009) (noting "[b]ecause a claim under the CFA is
essentially a fraud claim, the rule requires that such claims be pled with
specificity to the extent practicable"). Moreover, "to state a claim under the
CFA, a plaintiff must allege each of three elements: (1) unlawful conduct by
the defendants; (2) an ascertainable loss on the part of the plaintiff; and (3) a
causal relationship between the defendants' unlawful conduct and the plaintiff's
ascertainable loss." New Jersey Citizen Action v. Schering-Plough Corp., 367
N.J. Super. 8, 12-13 (App. Div. 2003). Defendant's general reference to Wells
Fargo's past practice of predatory lending is not enough to show that plaintiff
was one of the individuals affected by that practice. The legal conclusions stated
by defendant, without specific supporting facts in the record, do not constitute
a valid affirmative defense. See Pressler & Verniero, Current N.J. Court Rules,
cmt. 1.1 on R. 4:5-4 (2022).
Affirmed.
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