U.S. BANK, N.A., ETC. VS. LUBICA VILCEKOVAÂ (F-047074-14, 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NOT FOR PUBLICATION WITHOUT THE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-5575-15T1
U.S. BANK, N.A., AS LEGAL
TITLE TRUSTEE FOR TRUMAN
2013 SC4 TITLE TRUST,
Plaintiff-Respondent,
v.
LUBICA VILCEKOVA,
Defendant-Appellant,
and
MR. VILCEKOVA, husband of
LUBICA VILCEKOVA, HOWARD K.
PFEFFER, ESQ., and FOREST
JUNCTION CONDOMINIUM
ASSOCIATION,
Defendants.
_____________________________
Submitted September 20, 2017 – Decided October 13, 2017
Before Judges Simonelli and Haas.
On appeal from the Superior Court of New
Jersey, Chancery Division, Hudson County,
Docket No. F-047074-14.
Law Offices of Joseph A. Chang, LLC, attorneys
for appellant (Mr. Chang, of counsel and on
the brief; Jeffrey Zajac, on the brief).
Romano Garubo & Argentieri, attorneys for
respondent (Emmanuel J. Argentieri, on the
brief).
PER CURIAM
In this foreclosure matter, defendant Lubica Vilcekova
appeals from the March 7, 2016 Chancery Division order, which
granted summary judgment to plaintiff U.S. Bank, N.A. as legal
title trustee for Truman 2013 SC4 Title Trust, and struck
defendant's answer with prejudice. Defendant also appeals from
the July 12, 2016 final judgment. For the following reasons, we
affirm.
I.
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 light most favorable to defendant. 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 22, 2007, defendant signed an application for a
residential adjustable rate mortgage loan in the amount of $225,600
from World Savings Bank (WSB), and listed her monthly income as
$6880. Defendant represented and acknowledged "the information
provided in this application is true and correct . . . and that
any intentional or negligent misrepresentation of the information
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contained in this application may result in civil liability,
including monetary damages . . . and/or criminal penalties[.]"
On July 27, 2007, defendant executed a thirty-year adjustable
rate mortgage note to WSB in the amount of $225,600, with an annual
interest rate of 7.060%. To secure payment of the note, defendant
executed a mortgage to WSB on her property located in Kearny. At
the time of closing, defendant executed and received a federal
Truth-in-Lending Disclosure Statement and notice of right to
cancel the loan transaction. Defendant used the loan proceeds to
pay off an existing mortgage on the property and closing costs,
and received a balance of $7,284.74 for personal use. The mortgage
was recorded in the Hudson County Clerk's Office on August 15,
2007.
On December 31, 2007, WSB amended its charter to change its
name to Wachovia Mortgage, FSB (Wachovia). On July 12, 2009,
defendant executed a loan modification agreement with Wachovia in
the amount of $232,550.81, wherein she admitted that $232,550.81
was due under the original note and mortgage. The loan
modification agreement reduced the annual interest rate to 3.60%
with a periodic rate step-up capped at 6.5%.
On November 1, 2009, Wachovia converted to a national bank
known as Wells Fargo Bank Southwest, NA, and merged into Wells
Fargo Bank, NA (Wells Fargo). On April 15, 2011, defendant
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defaulted on the note and mortgage. The default was due to her
loss of employment.
On December 19, 2013, plaintiff acquired the mortgage and
original note and held same since that date until it released the
documents to its attorney for this litigation. On March 4, 2014
Wells Fargo assigned all of its rights, title, and interest in the
mortgage to plaintiff, as legal title trustee for Truman 2013 SC4
Title Trust. On March 17, 2014, the assignment was recorded with
the Hudson County Registrar. Thus, as of March 17, 2014, plaintiff
was the holder of the original note and assignment of the mortgage.
On August 7, 2014, plaintiff, through its servicing agent,
mailed defendant a notice of intention to foreclose. Defendant
failed to cure her default. As a result, on November 10, 2014,
plaintiff, as legal title trustee for Truman 2013 SC4 Title Trust,
filed a foreclosure complaint against defendant. Defendant filed
an answer, admitting to executing the note, mortgage, and loan
modification agreement, and asserting twelve affirmative defenses,
including plaintiff's lack of standing and predatory lending in
violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A.
56:8-2 to -20.
During discovery, plaintiff produced a copy of the original
note and invited defendant to inspect the document in plaintiff's
attorney's office, which neither defendant nor her attorney
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accepted or scheduled. Plaintiff also produced a copy of
defendant's original loan application. On October 1, 2015,
defendant served plaintiff with a notice to depose an authorized
representative.
On October 6, 2015, plaintiff filed a motion for summary
judgment, and on October 22, 2015, filed a motion to quash the
notice of deposition. On November 13, 2015, defendant filed a
cross-motion to compel discovery.
In opposition to plaintiff's summary judgment motion,
defendant argued, in part, that plaintiff lacked standing to
foreclose because its noncompliance with a Pooling and Servicing
Agreement (PSA) established it did not own or possess the note.
Defendant argued she was a third-party beneficiary of the PSA and
had standing to challenge plaintiff's noncompliance. Defendant
also argued summary judgment was not appropriate because plaintiff
violated the CFA and discovery was not complete.
In a March 7, 2016 order, the motion judge granted plaintiff's
summary judgment motion; in two separate April 1, 2016 orders, the
court granted plaintiff's motion to quash defendant's notice of
deposition and denied defendant's cross-motion to compel
discovery. In an April 1, 2016 written opinion, the judge found
plaintiff's proofs established a prima facie right to foreclose,
and defendant failed to demonstrate how further discovery would
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rebut that right or have any impact on the court's decision. The
judge found there was no factual support for most of defendant's
affirmative defenses. The judge also found plaintiff has standing
to foreclose because it's proofs established it had possession of
the note and assignment of the mortgage prior to filing the
complaint. On July 12, 2016, the court entered final judgment.
This appeal followed.
II.
On appeal, defendant contends her CFA defense based on
predatory lending was not subject to dismissal on summary judgment.
She argues that plaintiff committed an unconscionable commercial
practice under the CFA because it extended the adjustable rate
note to her with reckless unconcern as to her ability to pay. This
argument lacks merit.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016) (citation omitted). Thus, we consider, as the trial judge
did, "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Liberty Surplus Ins.
Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting
Brill, supra, 142 N.J. at 536). "[S]mmary judgment [must] be
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granted 'if the pleadings, depositions, answers to interrogatories
and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged
and that the moving party is entitled to a judgment or order as a
matter of law.'" Templo Fuente, supra, 224 N.J. at 199 (quoting
R. 4:46-2(c)). If there is no genuine issue of material fact, we
must then "decide whether the trial court correctly interpreted
the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494
(App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review
issues of law de novo and accord no deference to the trial judge's
conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463,
478 (2013). Applying these standards, we discern no reason to
reverse the grant of summary judgment in favor of plaintiff.
Defendant executed the note on July 27, 2007, and did not
assert the CFA defense until June 15, 2015, when she filed her
answer. The defense, therefore, is time-barred by the six-year
statute of limitations. N.J.S.A. 2A:14-1; DiIorio v. Structural
Stone & Brick Co., Inc., 368 N.J. Super. 134, 142 (App. Div. 2004)
(citation omitted).
Defendant's CFA defense also fails on the merits. In United
State Bank National Ass'n. v. Curcio, 444 N.J. Super. 94 (App.
Div. 2016), we rejected predatory lending as an affirmative defense
to foreclosure, stating:
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Defendant also argues that plaintiff engaged
in predatory lending by extending a mortgage
she could not afford, and tricking her into
accepting an adjustable rate mortgage.
However, she does not provide evidence nor
published New Jersey cases to support her
argument. Thus, "[w]e will not consider"
defendant's entirely unsupported and
"conclusionary statement." In any event, we
note defendant signed documents which made
clear she was agreeing to an adjustable rate
mortgage.
[Id. at 114 (alteration in original) (citing
Miller v. Reis, 189 N.J. Super. 437, 441 (App.
Div. 1983)).]
Defendant provided no evidence to support her defense of
predatory lending. To the contrary, the evidence confirms
defendant was not extended a mortgage plaintiff knew she could not
afford or tricked into accepting the adjustable rate mortgage.
Defendant represented on the loan application she had sufficient
monthly income to pay the mortgage loan and signed documents that
made clear she was agreeing to an adjustable rate mortgage in the
amount of $225,600. Defendant paid the mortgage for nearly four
years, and defaulted because she lost her employment, not because
of predatory lending.
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III.
Defendant next contends that because plaintiff violated the
PSA, the judge erred in holding plaintiff had standing. 1 Relying
on Bank of New York v. Ukpe, A-2209-11 (App. Div. Aug. 20, 2014),
and Yvanova v. New Century Mortgage Corp., 365 P.3d 845 (Cal.
2016), plaintiff argues she had standing to assert a violation of
the PSA and is a valid third-party beneficiary of the PSA.
However, unpublished opinions, such as Ukpe, do not constitute
precedent and are not binding on us. Trinity Cemetery Ass'n v.
Twp. of Wall, 170 N.J. 39, 48 (2001); R. 1:36-3. Further, we are
not bound by opinions from other jurisdictions.2 See Lipkowitz v.
Hamilton Surgery Ctr., LLC, 415 N.J. Super. 29, 36 (App. Div.
2010); Young v. Prudential Ins. Co. of Am., Inc., 297 N.J. Super.
605, 622 (App. Div.), certif. denied, 149 N.J. 408 (1997).
Nevertheless, neither Ukpe nor Yvanova support defendant's
position. In Ukpe, we did not discuss whether a borrower may
challenge compliance with a PSA, let alone hold or even suggest
1
We decline to address defendant's public policy argument that
banks and lending institutions created and developed a complex
securitization scheme of contemporary banking behind which they
should not be permitted to "hide."
2
Defendant also relies on opinions from other jurisdictions to
argue that recent trends in those jurisdictions provide strong
support for her position. However, as we have already stated, we
are not bound by opinions from other jurisdictions.
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that a borrower has standing to do so. In Yvanova, the Supreme
Court of California merely held that a borrower who suffered a
non-judicial foreclosure could sue for wrongful foreclosure when
an assignment is void, as opposed to voidable. Yvanova, supra,
365 P.3d at 848. The Supreme Court of California repeatedly
stressed it was expressing no opinion on whether a mortgage
assignment made after the closing date of a New York securitized
trust was void or voidable. Id. at 853. Thus, regardless of
whether plaintiff complied with the PSA in this case, defendant
lacked standing to advance such a challenge.
IV.
In the alternative, defendant contends that she is entitled
to a limited remand for findings of fact and conclusions of law
on her predatory lending and PSA affirmative defenses. Lastly,
defendant argues summary judgment was premature because discovery
was not complete.
We have considered these contentions in light of the record
and applicable legal principles and conclude they are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E). However, we make these brief comments.
"As a general proposition, a party seeking to foreclose a
mortgage must own or control the underlying debt." Deutsche Bank
Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div.
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2011) (citations omitted). "[E]ither possession of the note or
an assignment of the mortgage that predated the original complaint
confer[s] standing." Deutsche Bank Trust Co. Ams. v. Angeles, 428
N.J. Super. 315, 318 (App. Div. 2012) (citing Mitchell, supra, 422
N.J. Super. at 216, 225). "[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 Angeles, supra, 428
N.J. Super. at 319-20.
Here, plaintiff had both possession of the original note and
an assignment of the mortgage prior to filing the foreclosure
complaint. Accordingly, the court correctly determined that
plaintiff had standing in this matter, and properly granted summary
judgment. No further discovery could change this result.
Affirmed.
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