U.S. BANK NATIONAL ASSOCIATION, ETC. VS. ERIC HAYDEN (F-006884-13, 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NOT FOR PUBLICATION WITHOUT THE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-1610-17T4
U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE,
ON BEHALF OF THE HOLDERS
OF THE ASSET BACKED PASS-
THROUGH CERTIFICATES,
SERIES RFC 2007-HE1,
Plaintiff-Respondent,
v.
ERIC HAYDEN and MIESHA
HARDISON-HAYDEN,
Defendants-Appellants,
and
WELLS FARGO FINANCIAL BANK,
Defendant.
__________________________________
Submitted December 17, 2018 – Decided January 24, 2019
Before Judges Messano and Gooden Brown.
On appeal from the Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
006884-13.
Eric Hayden and Miesha Hardison-Hayden, appellants
pro se.
Parker Ibrahim & Berg, LLP, attorneys for respondent
(Charles W. Miller, III, and Nicholas Spindler, on the
brief).
PER CURIAM
In this residential mortgage foreclosure action, defendants Eric Hayden
and Miesha Hardison-Hayden appeal from a June 20, 2014 Chancery Division
order, striking their answer, entering default against them, and granting
summary judgment to plaintiff, U.S. Bank National Association, as Trustee, on
behalf of the holders of the Asset Backed Pass-Through Certificates, Series RFC
2007-HE1. Defendants also appeal from the January 6, 2016 Chancery Division
order, reinstating plaintiff's complaint, and the October 20, 2017 Chancery
Division order, entering final judgment of foreclosure. Defendants argue the
trial court erred by finding plaintiff had standing to bring the foreclosure action ,
and abused its discretion in allowing plaintiff to reinstate its complaint. We
disagree and affirm.
We derive the following facts from evidence submitted by the parties in
support of, and in opposition to, the summary judgment motion, viewed in the
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light most favorable to defendants. Angland v. Mountain Creek Resort, Inc.,
213 N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520,
523 (1995)). On July 27, 2006, defendants executed a $296,000 promissory note
with a 2036 maturity date in favor of Aegis Funding Corporation (Aegis), and,
to secure the note, a mortgage in the same amount to Mortgage Electronic
Registration Systems, Inc. (MERS), as nominee for Aegis, encumbering
residential property located in South Orange. The mortgage was recorded on
October 12, 2006, in the Essex County Register's Office.
Defendants defaulted on the loan on July 1, 2011. A Notice of Intent to
Foreclose (NOI) was sent to defendants on April 20, 2012, by MERS's servicer,
Select Portfolio Servicing, Inc. (SPS). On October 31, 2012, the mortgage was
assigned to plaintiff by MERS, as nominee for Aegis. The assignment was
executed "on behalf of [MERS]" by SPS's assistant secretary, Bill Koch. On
November 16, 2012, the assignment was recorded in the Essex County Register's
Office.
On March 4, 2013, plaintiff filed a foreclosure complaint.1 On April 11,
2013, defendants filed a contesting answer containing twelve affirmative
1
As a holder of an interest subordinate to plaintiff's mortgage lien, plaintiff
joined Wells Fargo Financial Bank as a defendant to the action.
A-1610-17T4
3
defenses, including lack of standing. On March 28, 2014, plaintiff moved for
summary judgment, and an order striking defendants' answer, entering default,
and transferring the case to the Office of Foreclosure to proceed as an
uncontested matter. To support its motion, plaintiff submitted a certification by
SPS's Document Control Officer, Paige Bushnell (the Bushnell certification). In
her certification, Bushnell explained that she had
access to records that were created and kept in the
ordinary course of business by [SPS] as part of its
regularly conducted business activities in connection
with the subject mortgage loan, and more particularly,
. . . [was] familiar with the systems that [SPS] uses to
record and create information related to the mortgage
loans it services, including the processes by which
[SPS] obtains the loan information in those systems[,]
[and] [w]hile much of the information [was] entered
through automated processes, where [SPS] employees
manually enter[ed] data, they ha[d] personal knowledge
of that information and enter[ed] it into the system at or
near the time they acquire[d] that knowledge.
Further, Bushnell stated she was "familiar with" and had "personally
reviewed" the "records acquired by [SPS] from any prior loan servicers for the
subject loan, including the loan origination file and servicing records." She
certified that the "[n]ote [was] endorsed in[] blank[,]" and "[t]he [n]ote and
[m]ortgage were . . . transferred to [p]laintiff, who acquired possession of [both]
on January 1, 2007[,]" as a result of a pooling and servicing agreement.
A-1610-17T4
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According to Bushnell, "the loan went into default" when defendants "failed to
make monthly payments when they became due" and "[t]he [m]ortgage was
assigned to [p]laintiff on October 31, 2012[.]" Copies of the documents
referenced in her certification were attached as exhibits, including the note,
mortgage, pooling and servicing agreement, assignment of mortgage, and NOI.
Defendants opposed the motion and cross-moved to dismiss the
complaint. In his supporting certification, Eric Hayden asserted that "[t]here
was an error of some kind on the [n]ote and it was voided[,]" and "[p]laintiff has
not produced a valid original [n]ote." He also claimed that "Bill Koch [was] a
known [r]obo [s]igner," that "[t]he [c]orporate [a]ssignment of [m]ortgage dated
October 30, 2012[,] [was] unrecorded[,]" and that plaintiff's interrogatory
answers were evasive.
On June 20, 2014, following oral argument, Judge Thomas M. Moore
granted plaintiff summary judgment and denied defendants' cross-motion in an
oral opinion. After identifying the "three material issues" in a foreclosure
action, namely "the validity of the documents[,]" "the default itself[,]" and
"standing" to foreclose, Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App.
Div. 1952), the judge determined that there were no genuine issues of material
fact in dispute precluding summary judgment, Brill, 142 N.J. at 529. Further,
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the judge found that "none of the pleadings responsive to the complaint either
contest[ed] the validity or priority of the mortgage[,] . . . or create[d] an issue
with respect to plaintiff's right to foreclosure[,]" Rule 4:64-1(c)(2).
Specifically, as to the validity of the documents, the judge accepted the
"certification of Paige Bushnell, . . . who establishe[d] possession of the original
note and mortgage, and the subsequent documents." Contrary to defendants'
assertion, the judge found no evidence of any "alleged error" on the original
note, which plaintiff's counsel actually produced in court. The judge also
rejected defendant's claim that Bill Koch either "fraudulently signed" or "was
not authorized to sign" the corporate assignment of mortgage, as unsupported
by any evidence "relevant" to this case. Additionally, the judge determined that
default was "established" even if a "certified check was sent on August 25[,]
[2011,]" because "[a]fter a default date, plaintiff [was] not obligated to accept
any late payments[,]" Eisen v. Kostakos, 116 N.J. Super. 358, 367 (App. Div.
1971).
Turning to the standing issue, the judge noted that "either possession o f
the note or an assignment of the mortgage that predated the original complaint
conferred standing on the plaintiff[,]" Deutsche Bank Tr. Co. Ams. v. Angeles,
428 N.J. Super. 315, 318 (App. Div. 2012). The judge continued:
A-1610-17T4
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Here, pursuant to the certification of Ms. Bushnell,
plaintiff gained possession of the note and mortgage on
January 1, 2007, and was assigned the mortgage on
October 31, 2012, both of which were before the filing
of the complaint on [March 4, 2013].2
I believe the certification of Paige Bushnell
properly supports these facts. She is identified as a
Document Control Officer of [SPS], the servicer for the
bank. The statements in the certification are based on
personal knowledge gained [from] the regular
performance of the job functions. And also a review of
the business records.
The certification complies with the requirements
set forth, which held that [Rule 1:6-6] requires that a
certification be based on the affiant's personal
knowledge. And that . . . the affiant must describe how
such personal knowledge was obtained. [Wells Fargo
Bank, N.A. v. Ford, 418 N.J. Super. 592, 599-600 (App.
Div. 2011)].
I do find that the Bushnell certification does
identify how the knowledge of the affiant was obtained,
consistent with the Ford requirements.
As for a claim that the note contains some sort of
an error, I do[] [not] find any details as to what that
error was on the note . . . . I do[] [not] find that to be
meritorious to defeat the standing argument or the
document argument, in light of the Bushnell
certification.
2
Here, the judge mistakenly stated the complaint was filed on July 9, 2013, but
referred to the correct filing date earlier in his opinion.
A-1610-17T4
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The judge rejected defendants' remaining defenses, including defendants'
claim that plaintiff failed to comply with the Fair Foreclosure Act. The judge
found the remaining defenses "conclusory, without factual support in
affidavits," lacking specificity as required by Rule 4:5-4, and insufficient to
defeat the application for summary judgment, Gherardi v. Bd. of Educ., 53 N.J.
Super. 349, 358 (App. Div. 1958). The judge entered a memorializing order,
striking defendants' answer, entering default against defendants, and
transferring the matter to the Office of Foreclosure to proceed as an uncontested
matter.
On July 31, 2015, pursuant to Rule 4:64-8,3 the Office of Foreclosure
dismissed plaintiff's complaint without prejudice for lack of prosecution . On
3
Rule 4:64-8 provides,
when a foreclosure matter has been pending for twelve
months without any required action having been taken
therein, the Clerk of the Superior Court shall issue
written notice to the parties advising that the matter
. . . will be dismissed without prejudice [thirty] days
following the date of the notice unless, within said
period, . . . an affidavit or certification has been filed
with the Clerk . . . asserting that the failure of filing or
taking the next required action is due to exceptional
circumstances. If the plaintiff fails to respond as herein
prescribed, the court shall enter an order of dismissal
without prejudice . . . . Reinstatement of the matter
A-1610-17T4
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October 20, 2015, plaintiff moved to reinstate the foreclosure action. In a
supporting certification, plaintiff's counsel, Timothy Ziegler, averred that
plaintiff's previous counsel, Zucker, Goldberg and Ackerman, "announced that
their firm was closing on or about the same time that the Notice of Intent to
Dismiss was issued[,]" and "[p]revious counsel did not file a certification
asserting exceptional circumstances in response to the notice." According to
Ziegler, his current firm "substituted in as [p]laintiff's counsel" on "July 14,
2015," and "was unaware of the pending dismissal, and thus did not file" the
requisite "certification of exceptional circumstances in response to the pending
dismissal notice." Defendants opposed plaintiff's motion to reinstate, and
certified that Ziegler "omitted [from his certification] that he was employed by
previous counsel . . . and Zucker Goldberg [was] still operating."
On January 6, 2016, Judge Moore granted plaintiff's motion to reinstate
the complaint, and ordered the default reinstated. In an oral opinion, quoting
Delaware Valley Wholesale Florist, Inc. v. Addalia, 349 N.J. Super. 228, 232
(App. Div. 2002), the judge explained that "[g]ood cause is an amorphous term
under the law" that "'[r]equires the exercise of sound discretion by the trial court
after dismissal may be permitted only on motion for
good cause shown.
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in light of the relevant facts, and[] circumstances.'" Additionally, pursuant to
Rivera v. Atlantic Coast Rehabilitation & Health Care Center, 321 N.J. Super.
340, 346 (App. Div. 1999), and Ghandi v. Cespedes, 390 N.J. Super. 193, 197
(App. Div. 2007), "[r]einstatement, particularly in these foreclosure actions, is
. . . routinely granted where plaintiff has cured the problem that led to the
dismissal[,]" and "there is a presumption of good cause, and[] no prejudice to
the defendant where a request to reinstate a matter [dismissed] for lack of
[prosecution] is made within a year." Stanley v. Great Gorge Country Club, 353
N.J. Super. 475, 485 (Law Div. 2002).
The judge explained:
Here, [the] [c]ourt dismissed the present action
for lack of prosecution on July 31, 2015. Within three
months of dismissal on October 20, 2015, plaintiff filed
the present motion to reinstate. Presumption of good
cause, and[] no prejudice have [not been] sufficiently
rebutted by the defendant[s]. . . .
. . . Plaintiff has further established good cause to
reinstate the present foreclosure, explaining . . . the
[c]ourt . . . initiated . . . notice of intent to dismiss for
lack of prosecution was sent to the former counsel at
the time the firm had announced its closing, and[] they
were in, to say the least, a phase of transition.
When current counsel was substituted as counsel
for plaintiff, it was unaware of the pending dismissal
notice, and . . . therefore did not file a certification of
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exceptional circumstances, which would have taken the
matter off of the dismissal list.
I[] [am] satisfied that the unexpected, and[]
sudden[,] change in the law firm's representation,
notwithstanding the fact that Mr. Ziegler may . . . or,
may not have been in charge of this case when he was
at the Zucker firm, meets the good cause requirement.
Furthermore, reinstatement of the matter will not
prejudice defendants. They[] [have] already had an
opportunity to fully litigate, and[] appear in the case,
and[] defend against it.
On September 29, 2017, plaintiff moved for entry of final judgment in
accordance with Rule 4:64-9. In support, plaintiff submitted a "Proof of Amount
Due" certification by SPS Document Control Officer, Allen Schneider,
certifying to the amounts due and owing, and plaintiff's status as the holder of
the note. Defendants did not file any objection or opposition to plaintiff's motion
and final judgment of foreclosure was entered on October 20, 2017. 4 This appeal
followed.
4
Defendants' failure to file any opposition to the motion for entry of final
judgment precludes them from challenging the October 20, 2017 order on
appeal. See State v. Robinson, 200 N.J. 1, 20 (2009) ("'[I]t is a well-settled
principle that our appellate courts will decline to consider questions or issues
not properly presented to the trial court when an opportunity for such a
presentation is available unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public interest.'"
(alteration in original) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973))). Moreover, defendants' failure to brief this issue on appeal may be
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We review a grant of summary judgment applying the same standard used
by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366
(2016). That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. On the other hand, when no genuine issue
of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.
[Ibid. (citations omitted) (quoting R. 4:46-2(c)).]
Applying these standards, we discern no reason to reverse the grant of
summary judgment. Defendants argue the judge erred in concluding that
plaintiff had standing, and relying on the Bushnell certification to grant
summary judgment. We disagree and affirm substantially for the reasons set
forth by Judge Moore in his comprehensive and well-reasoned oral opinion
delivered from the bench on June 20, 2014.
construed as an abandonment of any arguments contesting the validity of the
final judgment. See Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on
R. 2:6-2 (2019); Drinker Biddle & Reath LLP v. N.J. Dep't of Law & Pub.
Safety, 421 N.J. Super. 489, 496 n.5 (App. Div. 2011) (finding plaintiff's claims
"abandoned" due to its failure to address the issue in its brief).
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Defendants also argue the judge erred in accepting plaintiff's "excuse" as
satisfying the "good cause standard for reinstating [the] complaint." Rule 4:64-
8 "generally follows [Rule] 1:13-7[.]" Pressler & Verniero, Current N.J. Court
Rules, cmt. on R. 4:64-8 (2019). Under Rule 1:13-7, "absent a finding of fault
by the plaintiff and prejudice to the defendant, a motion to restore . . . should be
viewed with great liberality[,]" and such determinations are subject to an abuse
of discretion standard. Ghandi, 390 N.J. Super. at 197. 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)), and occurs when the trial judge's decision is "made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis[,]" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App.
Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Here, we discern no abuse of discretion and affirm substantially for the
reasons expressed by Judge Moore in his cogent oral opinion issued on January
6, 2016. To the extent we have not specifically addressed any of defendants'
remaining arguments, we deem them without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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