THE BANK OF NEW YORK MELLON, ETC. VS. PHONG N. TRAN (F-014048-16, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-0910-17T2
THE BANK OF NEW YORK MELLON
f/k/a THE BANK OF NEW YORK,
AS TRUSTEE FOR THE
CERTIFICATEHOLDERS OF THE
CWALT, INC., ALTERNATIVE LOAN
TRUST 2006-45TI, MORTGAGE PASS-
THROUGH CERTIFICATES,
SERIES 2006-45T1,
Plaintiff-Respondent,
v.
PHONG N. TRAN and CHARLOTTE
L. TRAN, husband and wife,
Defendants-Appellants,
and
SUN TRUST BANK and STATE OF
NEW JERSEY,
Defendants,
and
PHONG N. TRAN and CHARLOTTE
L. TRAN, husband and wife,
Third-Party Plaintiffs,
v.
AMERICA'S WHOLESALE LENDER and
THE BANK OF NEW YORK MELLON
f/k/a THE BANK OF NEW YORK, THE
BANK OF NEW YORK MELLON f/k/a
THE BANK OF NEW YORK AS TRUSTEE
FOR SECURITIZED TRUST ALTERNATIVE
LOAN TRUST 2006-45T1; COUNTRYWIDE
HOME LOANS, INC.; CWALT, INC.;
COUNTRYWIDE HOME LOANS SERVICING,
LP; and MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS a/k/a "MERS",
Third-Party Defendants.
__________________________________________
Submitted December 4, 2018 – Decided February 5, 2019
Before Judges Rothstadt and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Burlington County, Docket No.
F-014048-16.
Tran & Tran Law Firm, LLC, attorneys for appellants
(Phong N. Tran, on the brief).
Mattleman, Weinroth & Miller, PC, attorneys for
respondent (Robert W. Williams, on the brief).
PER CURIAM
A-0910-17T2
2
In this residential foreclosure matter, defendants Phong N. and Charlotte
L. Tran appeal from a September 12, 2017 final judgment and a May 15, 2017
order striking their contesting answer and affirmative defenses, dismissing their
counterclaims and third-party complaint, and entering default against them.
Defendants argue that plaintiff, the Bank of New York Mellon (the Bank ),1
failed to establish that it was the holder of the note, or the assignee of the
mortgage, and therefore lacked standing to foreclose. Defendants also argue
that the Chancery court misapplied the law concerning the rights of a holder in
due course.
Defendants made these same arguments before the Chancery court and
Judge Paula T. Dow analyzed and correctly rejected those arguments in a written
opinion issued on May 15, 2017. We affirm for the reasons explained in Judge
Dow's thorough opinion.
The Bank submitted competent evidence establishing that (1) defendant
Phong N. Tran borrowed over $609,000, (2) he executed a promissory note and
mortgage, (3) the mortgage was recorded, (4) defendants defaulted on the note
1
The Bank's full name is The Bank of New York Mellon, formerly known as
The Bank of New York, as Trustee for the Certificate holders of the CWALT,
Inc., Alternative Loan Trust 2006-45TI, Mortgage Pass-Through Certificates,
Series 2006-45TI.
A-0910-17T2
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in May 2011, and have not made payments since that default, (5) the mortgage
was assigned to the Bank in August 2011, (6) that assignment was recorded, and
(7) the Bank took possession of the note and was the holder of the note when it
instituted the foreclosure action against defendants. Those facts were
established by a certification from an individual with personal knowledge.
Judge Dow correctly found that the certification was both competent and
admissible. See R. 1:6-6; N.J.R.E. 803(c)(6).
Judge Dow correctly ruled the Bank had standing to pursue the foreclosure
action as it was both the assignee of the mortgage and the holder of the note.
See, e.g., Capital One, NA v. Peck, 455 N.J. Super. 254, 258 (App. Div. 2018);
Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 223 (App. Div.
2011). Moreover, Judge Dow considered, but rejected defendants' affirmative
defenses, counterclaims, and third-party complaint for various legal reasons. In
that regard, Judge Dow analyzed the affirmative defenses, counterclaims, and
claims against third parties that were not merely conclusory and explained in
her written decision why those claims and defenses lacked merit as a matter of
law. Having reviewed those rulings de novo, we agree with each of Judge Dow's
rulings.
Affirmed.
A-0910-17T2
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