BAYVIEW LOAN SERVICING, LLC VS. DOMINICK ROMANOÂ (F-017911-13, OCEAN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4521-15T4
BAYVIEW LOAN SERVICING, LLC,
Plaintiff-Respondent.
v.
DOMINICK ROMANO his heirs,
devisees, and personal
representatives and his/her,
their, or any of their
successors in right, title
and interest, and SARAJEAN ROMANO,
her heirs, devisees, and
personal representatives and
his/her, their, or any of their
successors in right, title and
interest,
Defendants-Appellants,
and
MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC., AS
NOMINEE FOR WORLDWIDE FINANCIAL
RESOURCES, INC., GMAC.
Defendants.
_____________________________
Argued September 19, 2017 – Decided October 16, 2017
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No.
F-017911-13.
Joshua W. Denbeaux argued the cause for
appellants (Denbeaux & Denbeaux, attorneys;
Nicholas A. Stratton, on the brief).
Michael B. McNeil argued the cause for
respondent (Powers Kirn, LLC, attorneys; Mr.
McNeil, of counsel and on the brief).
PER CURIAM
In this mortgage foreclosure action, defendants Dominick and
Sara Jean Romano appeal from a June 18, 2014 order granting summary
judgment to plaintiff Bayview Loan Servicing, LLC (Bayview), and
a May 11, 2016 final judgment. We affirm both the order and
judgment.
I.
On November 24, 2004, defendant Dominick Romano borrowed
$380,000 from SGB Corporation d/b/a Westamerica Mortgage Company
(SGB). Defendants executed and delivered to SGB a note promising
to repay the loan (Note). Defendants also executed a mortgage to
secure that loan, and the mortgage was given to Mortgage Electronic
Register System, Inc. (MERS) as nominee for SGB.1
1
Dominick Romano executed the Note. The mortgage identifies the
borrower as "DOMINICK ROMANO; MARRIED TO SARA JEAN ROMANO" and
both Dominick and Sara Jean Romano signed the mortgage.
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Thereafter, SGB endorsed the Note to CitiMortgage, Inc., who
in turn endorsed the Note to Bayview. Bayview took possession of
the Note, endorsed it in blank, and retained possession of the
Note.
In 2009, MERS, as nominee for SGB, assigned the Note and
mortgage to CitiMortgage. In 2010, CitiMortgage assigned the Note
and mortgage to Bayview. Both assignments were recorded.
Meanwhile, in May 2009, defendants ceased paying the amounts
due under the Note and mortgage, and have not made any payments
since May 2009. Accordingly, on December 6, 2012, Bayview sent
defendants a notice of default and intention to foreclose.
On May 29, 2013, Bayview filed a mortgage foreclosure action
against defendants. Defendants initially failed to respond, but
in October 2013, they filed an answer. In their answer, defendants
admitted to executing the Note and mortgage. Defendants also
admitted to defaulting on the loan, but contested Bayview's right
to enforce the Note and mortgage.
Bayview moved for summary judgment. Defendants opposed that
motion and filed a cross-motion for summary judgment. In support
of its motion, Bayview submitted a certification from Lauren Blain,
a document coordinator for Bayview. Blain certified that she
personally reviewed the business records of Bayview and that
Bayview was the holder of the Note before the complaint was filed
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and still held the Note when Bayview moved for summary judgment.
With regard to the mortgage, Blain certified that the mortgage had
been assigned by MERS, as nominee for SGB, to CitiMortgage in
2009, and CitiMortgage had assigned the mortgage to Bayview in
2010. Blain attached to her certification copies of the Note, the
endorsements, the mortgage, and the assignments. She also
certified that all of those documents were "true copies of the
original documents[.]"
After hearing oral argument, the Chancery Court granted
summary judgment to Bayview and denied defendants' cross-motion.
The court memorialized its decision in an order dated June 18,
2014. A final judgment of foreclosure was entered on May 11,
2016. The judgment awarded Bayview $503,967.16, plus costs, fees,
and post-judgment interest, and allowed Bayview to sell the
mortgaged property to satisfy some of the amount owed. Defendants
now appeal from the order granting summary judgment and the final
judgment.
II.
On appeal, defendants make two arguments. First, defendants
contend that the Chancery Court erred by relying on the
certification of Bayview's document coordinator to establish that
Bayview was the holder of the Note and the assignee of the
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mortgage. Second, defendants argue that Bayview did not have
standing to pursue the foreclosure action.
We review a summary judgment decision de novo, and apply the
same standard used by the trial court. W.J.A. v. D.A., 210 N.J.
229, 237 (2012). The question is whether the evidence, when viewed
in the light most favorable to the non-moving party, raises genuine
disputed issues of fact sufficient to warrant resolution by the
trier of fact, or whether the evidence is so one-sided that one
party must prevail as a matter of law. Brill v. Guardian Life
Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Defendants first take issue with the certification submitted
by Bayview in support of its motion for summary judgment.
Specifically, defendants contend that it was not sufficient for
the document coordinator to certify that she reviewed the records;
rather, the custodian needed to produce the underlying records
that she reviewed.
Rule 1:6-6 states that a court may rely on an affidavit "made
on personal knowledge, setting forth only facts which are
admissible in evidence to which the affiant is competent to testify
. . . ." The Rules of Evidence allow the admission of business
records. N.J.R.E. 803(c)(6).
Here, Blain, who was the Bayview document coordinator,
certified that she personally reviewed the business records of
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Bayview. She also attached copies of the Note, its endorsements,
the mortgage, and its assignments to her certification and
certified that those documents were true copies of the originals.
That certification complied with Rule 1:6-6 and N.J.R.E.
803(c)(6). See New Century Fin. Servs., Inc. v. Oughla, 437 N.J.
Super. 299, 326 (App. Div.) (citing State v. Martorelli, 136 N.J.
Super. 449, 453 (App. Div. 1975), certif. denied, 69 N.J. 445(1976)) ("There is no requirement that the foundation witness
[certifying that a record is a business record] possess any
personal knowledge of the act or event recorded."), certif. denied
sub nom. MSW Capital, LLC v. Zaidi, 218 N.J. 531 (2014).
Defendants also argue that Bayview did not have standing to
prosecute the foreclosure action. In that regard, defendants
argue that Bayview might not be the mortgagee. The party seeking
to establish its right to foreclose on a mortgage must generally
own or control the underlying debt. Deutsche Bank Nat'l Trust Co.
v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011). A
promissory note evidences the debt, which is a negotiable
instrument. N.J.S.A. 12A:3-104.
Article 3 of the Uniform Commercial Code (UCC), N.J.S.A.
12A:1-101 to 12-26, addresses the enforceability of negotiable
instruments. Any person "entitled to enforce" can enforce a
negotiable instrument. N.J.S.A. 12A:3-301. Such persons include
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a "holder of the instrument, a non-holder in possession of the
instrument who has the right of the holder, or a person not in
possession of the instrument who is entitled to enforce the
instrument . . . ." Ibid. A "holder" is defined by the UCC as a
person "in possession of a negotiable instrument that is payable
. . . to the bearer," or if payable to identified person, the
identified person "is the person in possession." N.J.S.A. 12A:1-
201(b)(21)(a).
In Mitchell, supra, 422 N.J. Super. at 216, we held that to
have standing, a foreclosing plaintiff must have either possession
of the promissory note or an assignment of the mortgage that pre-
dates the original complaint. Here, Bayview submitted proof that
it both possessed the Note and had an assignment of the mortgage.
Critically, defendants do not dispute that they executed the
Note and mortgage. Moreover, they do not dispute that they
defaulted on the Note and mortgage. Instead, they contend that
after Bayview filed the foreclosure action, they received notice
that their loan had been transferred to U.S. Bank National
Association, as Trustee, in Trust for the Benefit of the Holders
of Bayview Opportunity Master Fund REMIC 2013-13NPL1 Beneficial
Interest Certificates, Series 2013-13NPL1 (U.S. Bank, as Trustee).
Importantly, however, the notice states that Bayview would remain
as the company servicing the mortgage loan. Just as importantly,
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Bayview certified that it was still holding the Note when it moved
for summary judgment in 2014. Bayview also certified that it was
the assignee of the mortgage when it initiated the foreclosure
action. Nothing in the summary judgment record disputed those
material facts. Thus, Bayview was the assignee of the mortgage
when it commenced the foreclosure action, and it was the holder
of the Note when it moved for summary judgment. Accordingly,
Bayview was entitled to summary judgment.
Affirmed.
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