WELLS FARGO BANK, N.A. VS. JOHN CANNAROZZO (F-012375-18, OCEAN 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NOT FOR PUBLICATION WITHOUT THE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-4697-18
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
JOHN CANNAROZZO,
Defendant-Appellant,
and
MRS. JOHN CANNAROZZO,
his wife, and CITIZENS STATE
BANK,
Defendants.
____________________________
Submitted February 8, 2021 - Decided April 8, 2021
Before Judges Suter and Smith.
On appeal from the Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No.
F-012375-18.
John Cannarozzo, appellant pro se.
Reed Smith, LLP, attorneys for respondent (Henry F.
Reichner, of counsel; Ethan R. Buttner, on the brief).
PER CURIAM
In this residential foreclosure action, the borrower appeals from a
summary judgment order granted by the trial court in favor of the lender. For
the reasons set forth below, we affirm.
I.
On June 12, 2018, Wells Fargo filed a foreclosure action against John
Cannarozzo (appellant), Mrs. John Cannarozzo, and Citizen's State Bank 1 in the
Ocean County Chancery Division. Appellant filed an answer July 23, 2018, and
Wells Fargo filed a motion for summary judgment on November 5, 2018.
Appellant opposed summary judgment and filed a cross-motion for summary
judgment on February 11, 2019. Appellant argued Wells Fargo had no standing
to bring a foreclosure action because it lost the mortgage note, the Notice of
1
The defendants in this action are listed in the caption as above. Mrs. John
Canarozzo's appeal was dismissed without prejudice on or about July 1, 2019.
John Canarozzo's appeal was dismissed without prejudice, September 10, 2019,
however his appeal was reinstated November 26, 2019. There is nothing in the
record before us as to Citizen's State Bank. No appearance has been entered in
this appeal on behalf of either Mrs. John Cannarozzo or Citizen's State Bank.
All references in this matter to appellant are to John Cannarozzo only, who is
pro se.
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Intent to Foreclose (NOI) was deficient, and Wells Fargo's affidavits were
hearsay.
The trial court granted Wells Fargo's motion for summary judgment and
denied the appellant's cross-motion on February 20, 2019. The court entered
final judgment against appellant in the amount of $566,940.05.
II.
Appellant executed a $484,000 note and mortgage on his residential
property on November 17, 2009. The original note was payable to Stearns
Lending, Inc. (SLI). The original mortgage executed by appellant designated
Mortgage Electronic Registration Systems, Inc (MERS) "as the nominee for
[SLI] and [SLI's] successors and assigns." Appellant defaulted on the note and
mortgage on March 1, 2016.
After appellant's default, the mortgage was assigned three times. Wells
Fargo submitted an affidavit in support of its summary judgment motion from
Keisha James, Vice-President of Loan Documentation. James attested to three
mortgage assignments: MERS to Seneca Mortgage Servicing, LLC, recorded on
September 15, 2016; Seneca Mortgage Servicing, LLC to Nationstar Mortgage,
LLC, recorded on November 2, 2016; and Nationstar Mortgage LLC to Wells
Fargo Bank, N.A. to recorded on December 27, 2017.
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Wells Fargo served appellant with a Notice of Intent to Foreclose (NOI)
on April 24, 2018 via certified mail. Wells Fargo filed and served its complaint
on appellant shortly thereafter.
At some point prior to Wells Fargo's summary judgment motion, the
accompanying note was lost. In addition to the James affidavit, Wells Fargo
submitted a Lost Note Affidavit signed by a different Vice-President for Loan
Documentation, Kelly Butikofer. 2 Ms. Butikofer certified that the note was
inadvertently lost, misplaced, destroyed, pledged, transferred, or otherwise
disposed of. Butikofer further certified that Wells Fargo agreed to indemnify
and hold harmless appellant against "loss or damage, which may result by reason
of a third party presenting the Note and validly enforcing the same against
[appellant], following judgment and before running the statute of limitations for
enforcement of the [n]ote."
The court found no genuine issues of material fact and granted summary
judgment for Wells Fargo. The court denied appellant's cross-motion.
Appellant's answer was stricken by the court and the case was returned to the
Office of Foreclosure as uncontested. Appellant challenges both orders.
2
Both affidavits are part of the record before us. James attached Butikofer's
Lost Note Affidavit to her affidavit in support of summary judgment.
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III.
Our review of a summary judgment ruling is de novo. Conley v. Guerrero,
228 N.J. 339, 346 (2017); Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.
Co. of Pittsburgh, 224 N.J. 189, 199 (2016). We apply the same standard as the
trial court. Ibid. "Summary judgment must be granted if 'the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment as a matter of
law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
We accord no special deference to the trial judge's conclusions on issues of law.
Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Appellant argues the lost note prevented Wells Fargo from proving
standing to sue. We disagree. Wells Fargo's lost note affidavit, attesting that
the note was inadvertently lost, misplaced, destroyed, pledged, transferred, or
otherwise disposed of, facilitates its right to enforce the assigned mortgage
under N.J.S.A. 12A:3-309. Investors Bank v. Torres, 243 N.J. 25, 46-7 (2018).
"[P]ossession of the note or an assignment of the mortgage that predate[s] the
original complaint confer[s] standing." Deutsche Bank Trust v. Angeles, 428
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N.J. Super 315, 318 (citing Deutsche Bank National Trust Co. v. Mitchell, 422
N.J. Super. 214, 216 (App. Div. 2011)).
Through the James affidavit, Wells Fargo presented competent evidence
of each recorded assignment, starting with MERS, the original mortgage holder
on behalf of SLI, to Wells Fargo. Its possession of the mortgage assignment on
December 27, 2018, over six months prior to the filing of the complaint,
establishes standing.
"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 mortgage premises." Great Falls Bank v. Pardo, 263 N.J. Super.
388, 394 (Ch. Div. 1993). Appellant failed to present any legally competent
evidence to support the allegations in his answer. He presented no facts to
contest execution of the note or mortgage. He presented no facts to contest
default, nor has he contested the amount due. Our review of the record,
including appellant's answer, reveals no evidence proffered by appellant which
would lead to any genuine issue of material fact. Wells Fargo met its burden as
plaintiff in this foreclosure action by way of admissible and competent proofs
attached to a proper affidavit establishing: the validity of the mortgage, the
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amount of the indebtedness' and the right to resort to foreclosure of the
mortgaged premises.
We note appellant challenged Wells Fargo's proofs, arguing that its
supporting affidavits were hearsay. James and Butikofer were both Wells Fargo
vice-presidents. They both attested to their familiarity with the business records
maintained by Wells Fargo for the purposes of servicing mortgage loans. They
each reviewed the relevant records pertaining to appellant's matter. James and
Butikofer were competent to testify to the information in their respective
affidavits pursuant to R. 1:6-6. The affidavits were properly admitted pursuant
to the business records exception to the hearsay rule. N.J.R.E. 803(c)(6).
Appellant argues that the NOI failed to comply with the Fair Foreclosure
Act, N.J.S.A. 2A:50-53 to 2A:50-73, because it was allegedly not sent by
certified mail. Our review of the record confirms the NOI was served on
appellant in accordance with N.J.S.A. 2A:50-56. Wells Fargo sent the NOI by
certified mail to appellant at the mortgaged property address. In accordance
with the statute, "[t]he notice is deemed to have been effectuated on the date the
notice is delivered in person or mailed to the party." N.J.S.A. 2A:50-56(b) .
The record supports a finding of summary judgment in favor of Wells
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Fargo. Additionally, the record reveals no basis in law or fact to disturb the trial
court's order striking appellant's answer and denying his cross-motion for
summary judgment.
Appellant's remaining arguments lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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