H&R BLOCK BANK, ETC. VS. GUY LAGOMARSINO(F-045611-14, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-0523-16T3
H&R BLOCK BANK, A FEDERAL
SAVINGS BANK,
Plaintiff-Respondent,
v.
GUY LAGOMARSINO,
Defendant-Appellant,
and
MRS. GUY LAGOMARSINO,
Defendant.
_________________________
Submitted October 5, 2017 – Decided October 17, 2017
Before Judges Simonelli and Rothstadt.
On appeal from the Superior Court of New
Jersey, Chancery Division, Hudson County,
Docket No. F-045611-14.
Joseph R. Press, attorney for appellant.
Sandelands Eyet LLP, attorneys for respondent
(Robert D. Bailey, of counsel and on the
brief).
PER CURIAM
In this foreclosure matter, defendant Guy Lagomarsino appeals
from the August 29, 2016 Chancery Division final judgment. For
the following reasons, we affirm.
On September 15, 2006, defendant executed a note to Equity
One, Inc. (Equity One) in the amount of $588,000. To secure
payment of the note, defendant executed a mortgage to Equity One
on his property located in Union City. The mortgage was recorded
with the Hudson County Clerk on October 11, 2006. Defendant
defaulted on March 1, 2010.
On September 21, 2006, Equity One executed an assignment of
mortgage to Option One Mortgage Corporation (Option One). The
assignment was recorded with the Hudson County Clerk on October
11, 2007. On July 2, 2010, Sand Canyon Corporation, formerly
known as Option One, executed an assignment of mortgage to
plaintiff. The assignment was recorded with the Hudson County
Clerk on August 13, 2010.
On November 23, 2011, plaintiff obtained possession of the
original note. On February 25, 2014, plaintiff executed an
assignment of mortgage to HRB Mortgage Holdings, LLC (HRB). The
assignment, which was recorded with the Hudson County Clerk on
March 10, 2014, did not assign the note.
On October 30, 2014, plaintiff filed a foreclosure complaint.
Defendant filed an answer and asserted eleven affirmative defenses
2 A-0523-16T3
and a counterclaim. Defendant did not challenge the validity of
the note and mortgage or deny that he defaulted. He asserted that
plaintiff lacked standing because it assigned the mortgage to HRB
prior to filing the complaint.
Following trial on October 7, 2015, the trial judge found
plaintiff had possession of the original note prior to filing the
complaint, which conferred standing, and established a prima facie
right to foreclose. The court entered final judgement on August
29, 2016. This appeal followed.
On appeal, defendant reiterates that plaintiff lacked
standing to foreclose because it assigned the mortgage to HRB
prior to filing the complaint. This argument lacks merit.
Our review of a trial court's fact-finding in a non-jury case
is limited. Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150,
169 (2011). "The general rule is that findings by the trial court
are binding on appeal when supported by adequate, substantial,
credible evidence. Deference is especially appropriate when the
evidence is largely testimonial and involves questions of
credibility." Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-
12 (1998)). We "should 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
3 A-0523-16T3
the interests of justice." Ibid. However, we owe no deference
to a trial court's interpretation of the law, and review issues
of law de novo. State v. Parker, 212 N.J. 269, 278 (2012);
Mountain Hill, L.L.C. v. Twp. Comm. of Middletown, 403 N.J. Super.
146, 193 (App. Div. 2008), certif. denied, 199 N.J. 129 (2009).
Applying these standards, we discern no reason to reverse.
"[S]tanding is not a jurisdictional issue in our State court
system and, therefore, a foreclosure judgment obtained by a party
that lacked standing is not 'void' within the meaning of Rule
4:50-1(d)." Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J.
Super. 91, 101 (App. Div. 2012). The judgment is "voidable" unless
the plaintiff has standing from either possession of the note or
an assignment of the mortgage that predated the original complaint.
See Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315,
319-20 (App. Div. 2012). Here, plaintiff had possession of the
original note that pre-dated the complaint. As holder of the
original note, plaintiff had standing to enforce it in a
foreclosure proceeding. See N.J.S.A. 12A:3-301; Deutsche Bank
Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div.
2011).
Affirmed.
4 A-0523-16T3