U.S. BANK, N.A., ETC. VS. MICHAEL R. BELLO (F-013137-15, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-1756-17T3
U.S. BANK, N.A., Successor
Trustee to Bank of America,
N.A., Successor by merger to
LaSalle Bank N.A., as Trustee,
for WaMu Mortgage Pass-Through
Certificates, Series 2007-HY2,
Plaintiffs-Respondents,
v.
MICHAEL R. BELLO,
Defendant-Appellant.
______________________________
Submitted November 8, 2018 – Decided February 7, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No. F-
013137-15.
Ira J. Metrick, attorney for appellant.
Eckert Seamans Cherin & Mellott, LLC, attorneys for
respondent (Richard J. Nalbandian, III, on the brief).
PER CURIAM
In this foreclosure action, defendant Michael Bello appeals from the
Chancery Division's orders granting plaintiff U.S. Bank, NA (U.S. Bank)
summary judgment and denying both defendant's motions to reconsider.
Defendant contends plaintiff's motion for summary judgment should have
been denied because of numerous standing issues: insufficient evidence that
plaintiff was the holder of the properly endorsed note at the time the foreclosure
complaint was filed; the assignment of mortgage could not be used to establish
plaintiff's standing; the certification supporting the motion for su mmary
judgment was not based on personal knowledge; plaintiff did not establish it was
entitled to enforce the note under N.J.S.A. 12A:3-301; the mortgage was not
properly transferred into the trust pool; plaintiff failed to establish a valid chain
of title by establishing each transfer; the complaint failed to recite all
assignments of mortgage in the chain as required by Rule 4:64-1(b)(10). We are
unpersuaded by any of these arguments and affirm substantially for the reasons
set forth in Judge Robert P. Contillo's written decisions.
We cull the following facts from Judge Contillo's findings which cited to
sources in the record. In March 2006, defendant executed an adjustable rate
note for $2,500,000 to Washington Mutual Bank, F.A. (WaMu) and granted the
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bank a first mortgage on a property in Alpine that was recorded on March 23,
2006. The note and mortgage were transferred in February 2007 to LaSalle
Bank, NA (LaSalle) as trustee for WaMu Pass-Through Certificates Series 2007-
HY2 Trust (HY2 Trust). JPMorgan Chase Bank, NA, (JPMorgan) purchased
the loans and assets of Washington Mutual Bank (Washington Mutual), formerly
known as WaMu, from the Federal Deposit Insurance Corporation (FDIC) –
which was acting as the receiver for the failed Washington Mutual – in
September 2008. In May 2010, JPMorgan assigned defendant's mortgage to
Bank of America, NA (BOA), successor by merger to LaSalle, as trustee for the
HY2 Trust. The assignment was recorded on May 24, 2010. U.S. Bank acquired
BOA's trust and administration business, which included defendant's mortgage,
and succeeded BOA as trustee. Defendant failed to make his monthly mortgage
payments and the loan entered into default on January 1, 2010. On April 13,
2015 plaintiff filed a foreclosure complaint against defendant. Judge Contillo,
in granting plaintiff's motion for summary judgment, struck defendant's answer,
affirmative defenses and counterclaim and forwarded the case to the Office of
Foreclosure to proceed as an uncontested matter.
Summary judgment should be granted if the court determines "there is no
genuine issue as to any material fact challenged and that the moving party is
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entitled to a judgment or order as a matter of law." R. 4:46-2(c). We review the
motion judge's decision de novo and afford his ruling no special deference.
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016). We "consider whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party" in
consideration of the applicable evidentiary standard, "are sufficient to permit a
rational factfinder to resolve the alleged disputed issue in favor of the non-
moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
"The only material issues in a foreclosure proceeding are the validity of
the mortgage, the amount of the indebtedness, and the right of the mortgagee to
resort to the mortgaged premises." Great Falls Bank v. Pardo, 263 N.J. Super.
388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994); accord
Sun NLF Ltd. P'ship v. Sasso, 313 N.J. Super. 546, 550 (App. Div. 1998). The
right to foreclose arises upon proof of execution, recording of a mortgage and
note and default on payment of the note. Thorpe v. Floremoore Corp., 20 N.J.
Super. 34, 37 (App. Div. 1952). Inasmuch as defendant does not dispute that he
executed the note and mortgage, or his January 2010 default, and the record
supports plaintiff's standing to foreclose, summary judgment was correctly
granted.
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Judge Contillo rejected defendant's contention that the certification of an
employee of plaintiff's servicer and agent, Select Portfolio Servicing, Inc. (SPS),
was deficient because the employee did not work for plaintiff and lacked
personal knowledge of how SPS obtained the loan documents from plaintiff.
While we review a trial judge's evidentiary ruling for abuse of discretion, see
Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) ("In reviewing a trial court's evidential
ruling, an appellate court is limited to examining the decision for abuse of
discretion."), we agree with Judge Contillo that a servicing agent could
authenticate a loan document such as the assignment of mortgage where, as here,
the agent reviewed the business records and had personal knowledge of
plaintiff's business practices.
The SPS employee certified that she was familiar with SPS's regular
business practices regarding the mortgage loans it services – including
maintenance of a computer database which keeps records on each loan's "acts,
transactions, payments, communications, escrow account activity,
disbursements, events, and analyses" – and personally reviewed the records for
defendant's loan. "[D]ocuments may properly be admitted 'as business records
even though they are the records of a business entity other than one of the
parties, and even though the foundation for their receipt is laid by a witness who
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is not an employee of the entity that owns and prepared them.'" New Century
Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 326 (App. Div. 2014) (quoting
Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11, 17 (App. Div. 1996)).
Although the judge found the certification did not sufficiently establish
that plaintiff possessed the note prior to filing the foreclosure complaint, the
certification – to which the recorded assignment was attached – was evidence
from which the judge could find the May 2010 assignment of mortgage to
plaintiff, executed and recorded nearly five years prior to the filing of the
foreclosure complaint, established plaintiff's standing. See Deutsche Bank Tr.
Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (holding "either
possession of the note or an assignment of the mortgage that predated the
original complaint confer[s] standing"). We determine defendant's argument,
relying on N.J.S.A. 46:9-9 and Carnegie Bank v. Shalleck, 256 N.J. Super. 23
(App. Div. 1992), that possession of the note was a prerequisite to establishing
standing, to be without sufficient merit to warrant discussion in this written
opinion. R. 2:11-3(e)(1)(E).
The judge also correctly rejected defendant's challenges to the validity of
the assignment. JPMorgan purchased Washington Mutual's loans and assets
from the receiver, FDIC. It is not disputed that plaintiff was the successor to
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BOA, that BOA was successor in interest to LaSalle, which was the trustee of
the HY2 Trust, and that defendant's WaMu mortgage was included in that trust.
Thus, as Judge Contillo found, the two parties to the assignment – JPMorgan
and BOA – were the successors in interest to Washington Mutual and LaSalle,
respectively and, as such, had the authority to effect the assignment. Moreover,
defendant, who was not a party to the assignment, lacked standing to challenge
it. See Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 350 (Ch. Div. 2010)
("[L]itigants generally have no standing to assert the rights of third parties.");
see also Giles v. Phelan, Hallinan & Schmieg, LLP, 901 F. Supp. 2d 509 (D.N.J.
2012) (finding plaintiffs could not challenge the validity of assignments
transferring their mortgage from one holder to another); Correia v. Deutsche
Bank Nat'l Tr. Co., 452 B.R. 319, 324-25 (B.A.P. 1st Cir. 2011) (finding debtors
lacked standing to argue that assignment of their mortgage violated a pooling
and servicing agreement because they were not parties to the agreement, nor
third-party beneficiaries thereof). The same holds true for defendant's similar
argument regarding contradictions between the assignment and the pooling
servicing agreement and the Security and Exchange Commission filings.
We perceive no merit in defendant's argument that plaintiff violated Rule
4:64-1(b)(10) by not listing in the complaint additional assignments in the chain
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of title, beyond the one plaintiff recited from JPMorgan to BOA. Rule 4:64-
1(b)(10) provides, "if the plaintiff is not the original mortgagee or original
nominee mortgagee," the complaint shall state "the names of the original
mortgagee and a recital of all assignments in the chain of title." Plaintiff's
complaint recited the March 20, 2006 origination of the mortgage by WaMu and
the May 7, 2010 assignment from JPMorgan to BOA, the lineage of succession
from LaSalle to BOA as trustees for the HY2 Trust, JPMorgan's status as
successor in interest by purchase from the FDIC and that the mortgage has
remained in the trust since the execution of the assignment although the trustees,
up to and including plaintiff, have changed. We do not read Rule 4:64-1(b)(10)
to require trustees or successors of a trust created pursuant to a pooling and
services agreement be recited in the foreclosure complaint.
We determine the balance of defendant's arguments, to the extent we have
not addressed them, to be without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E). We see no abuse of discretion in the denial
of the motions for reconsideration. Pitney Bowes Bank, Inc. v. ABC Caging
Fulfillment, 440 N.J. Super. 378, 382 (App. Div. 2015).
Defendant presents no competent evidence raising a genuine issue of
material fact as to whether plaintiff is the proper party in interest to bring this
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foreclosure complaint. As noted, BOA had standing to bring this foreclosure
action; the complaint – filed three years ago – set forth the basis for its standing.
Plaintiff's complaint tracked the mortgage history; defendant has not presented
proof of other assignments. There is no evidence another entity has attempted
to enforce the note or mortgage since defendant's default. Defendant does not
contend he suffered prejudice as a result of any alleged defect in the pleading.
Defendant has not paid his mortgage since January 2010. Final judgment was
entered on October 30, 2017. Summary judgment was properly entered in this
matter.
Affirmed.
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