DITECH FINANCIAL, LLC VS. ELENA EVGLEVSKAYA (F-002809-15, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2633-17T4
DITECH FINANCIAL, LLC,
Plaintiff-Respondent,
v.
ELENA EVGLEVSKAYA, JP
MORGAN CHASE BANK, N.A.,
AMERICAN EXPRESS BANK, FSB,
UNION FEDERAL MORTGAGE
CORPORATION, KEY EQUIPMENT
FINANCE, ASSIGNEE OF BANK
OF THE WEST, BMW FINANCIAL
SERVICES,
Defendants,
and
VIATCHESLAV STREKALOV,
Defendant-Appellant.
__________________________________
Submitted April 1, 2019 – Decided July 16, 2019
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Passaic County, Docket No. F-
002809-15.
Viatcheslav Strekalov, appellant pro se.
Phelan Hallinan Diamond & Jones PC, attorneys for
respondent Ditech Financial, LLC (Sonya Gidumal
Chazin, on the brief).
Winston & Strawn, LLP, attorneys for respondents
Bank of America, N.A. and Federal National Mortgage
Association (Jason R. Lipkin, on the brief).
PER CURIAM
Defendant Viatcheslav Strekalov appeals from a January 30, 2018 Final
Judgment of Foreclosure (Final Judgment) in favor of plaintiff Ditech Financial,
LLC f/k/a Green Tree Servicing (Ditech). We affirm.
I
On December 31, 2004, defendant and Elena Evglevskaya (collectively
defendants) executed a mortgage on 11 Shoshone Trail in Wayne (the property)
to secure a thirty-year $330,000 loan from Coastal Capital Corp d/b/a the
Mortgage Shop to Evglevskaya. A promissory note executed that same day by
Evglevskaya, as the sole borrower, evidenced the loan.
In June 2013, Bank of America, N.A., (BANA) which had been assigned
the mortgage a year earlier, assigned the mortgage to Green Tree.
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In January 2015, Green Tree filed a foreclosure action because
Evglevskaya had defaulted on the loan. About seven months later, Green Tree
changed its name to Ditech Financial, LLC following its merger with Ditech
Mortgage Corp. and DT Holdings, LLC.
After extensive discovery, Ditech filed a motion for summary judgment
and to amend the complaint to substitute its name for Green Tree as plaintiff.
Defendants filed a motion to dismiss as well as a cross-motion for summary
judgment. On February 21, 2017, Ditech's motion was granted with defendants'
answer being stricken and default entered against them based upon the oral
decision set forth by the trial court.
On March 30, Ditech forwarded defendants a copy of notice pursuant to
the Fair Foreclosure Act, N.J.S.A. 2A:50-58(a). On November 22, Ditech filed
a notice of motion for entry of judgment of foreclosure, which included
supporting documents proving the amount due on the mortgage.
A final judgment order was entered on January 30, 2018, which provided
that Ditech was entitled to the sum of $546,532.79. The order required the
mortgaged premises be sold to satisfy the amount due.
While the foreclosure action was pending, defendant brought a third-party
action against BANA and Federal National Mortgage Association (Fannie Mae).
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That action was dismissed by the trial court's June 8, 2016 order, which was
affirmed by our unpublished opinion on January 11, 2019.1 Strekalov v. Bank
of Am., N.A., No. A-4360-16 (App. Div. Jan. 11, 2019).
II
Before us, defendant appeals the final judgment of foreclosure arguing:
POINT I
PROVISION OF FALSE INFORMATION ABOUT
THE ORIGIN OF THE DISPUTED LOAN AND
GENERAL INFORMATION UPON THE OPENING
OF THE CASE.
POINT II
[ILLEGAL] USE OF THE TESTIMONY OF THE
WITNESS WHO DOES NOT HAVE THE
AUTHORITY TO REPRESENT THE INTERESTS OF
THE DEFENDANT, FANNIE MAE.
POINT III
IGNORING BY THE COURT THE PREVIOUS
VERDICTS, REACHED AND ADOPTED BY THE
TRIAL COURT AS WELL AS THE ARGUMENTS
OF PLAINTIFF AND DOCUMENTS PRESENTED
TO HIM.
1
This appeal does not address issues raised in the third-party action and only
involves the January 30, 2018 final judgment of foreclosure. Thus, while BANA
and Fannie Mae were parties to the third-party action, they are not proper parties
to this appeal and the arguments raised in their briefs will not be discussed. A
petition of certification was not filed in regards to our January 11, 2019 decision.
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POINT IV
ABSENCE OF ANY REGISTERED PROTEST ON
BEHALF OF ANY OF DEFENDANTS,
CHALLENGING THE FACT OF ILLEGAL
TRANSFER OF RIGHTS TO THE LOAN FROM
BANK OF AMERICA TO THE GREEN TREE
COMPANY.
POINT V
BECAUSE PLAINTIFF WAS A TRESPASSER ON
DEFENDANTS’ PROPERTY, THIS COURT OF
APPEAL CAN ADOPT THE "MISTAKEN
TRESPASSER" DOCTRINE, SO THAT
DEFENDANTS SHALL BE COMPENSATED FOR
THEIR LOSSES.
We begin by noting that defendant's brief is woefully non-compliant with
our court rules. Defendant failed to provide a copy of the January 30, 2018 final
judgment, which he is appealing. R. 2:6-1(a)(2)(A). Defendant failed to include
a "table of citation of cases, alphabetically arranged, of statutes and rules and of
other authorities." R. 2:6-1(a)(3). Defendant raises several issues without the
support of facts or evidence provided in the appendix. R. 2:6-2(a)(5); see Cherry
Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div.
1984). Lastly, he failed to make any coherent arguments to establish that the
January 30 final judgment is not supported by the record and case law. See R.
2:9-9.
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Despite the fact that defendant's non-compliant appeals brief makes it
difficult to conduct a meaningful appellate review of the final judgment of
foreclosure, see Rule 2:6-9, from what we can glean from his arguments, we
conclude that they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Defendant's primary arguments center on his claim that Ditech lacked
standing to foreclose. He claims the mortgage is fraudulent and was illegally
assigned to Ditech. While it is true that a Vitaly Bushteyn took out a fraudulent
mortgage on behalf of defendants in 1997, the trial court determined that
defendants were not responsible for the repayment of that mortgage. In its
February 21, 2017 oral decision, the trial court noted that public records show
that the "fraudulent" mortgage was discharged on February 18, 2005. As for the
note defaulted by Evglevskaya, it was secured by the Coastal Capital mortgage,
a separate transaction executed on December 31, 2004, by defendants as joint
tenants. The mortgage had nothing to do with the Bushteyn fraudulent
mortgage.
As explained in its February 21, 2017 oral decision, the trial court noted
it was satisfied from its review of the unchallenged certifications by Ditech and
Fannie Mae's employees with personal knowledge of the assertions made
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therein, that Ditech demonstrated possessive standing through its assignments –
Coastal Capital to BANA to Green Tree to Ditech – and possession of the note
and mortgage to foreclose on the mortgage. See R. 1:6-6; Wells Fargo Bank v.
Ford, 418 N.J. Super. 592, 600 (App. Div. 2011). Since there were no material
issues with the "validity of the mortgage, the amount of the indebtedness, and
the right of the mortgagee to resort to the mortgaged premises," Ditech was
entitled to enforce its rights and pursue a foreclosure action. Great Falls Bank
v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993). Hence, we are convinced
the trial court properly determined Ditech had standing and entered a final
judgment of foreclosure regarding the mortgage that was initiated with Coastal
Capital. See In re Trust Created by Agreement Dated December 20, 1961, 194
N.J. 276, 284 (2008) ("'[W]e do not disturb the factual findings and legal
conclusions of the trial judge unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice[.]'") (quoting Rova Farms
Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
Finally, because defendant argues for the first time on appeal that Ditech
is a "mistaken trespasser," we would normally not consider this contention.
Zaman v. Felton, 219 N.J. 199, 226-27 (2014). Nonetheless, based upon our
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conclusion that Ditech had standing to foreclose on the property, defendant's
argument is meritless.
Affirmed.
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