INDYMAC VENTURE, LLC VS. CARMINE E. GIORDANO (F-011876-12, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5060-15T1
INDYMAC VENTURE, LLC,
Plaintiff-Respondent,
v.
CARMINE E. GIORDANO and
SHERYL A. GIORDANO, husband
and wife,
Defendants-Appellants,
and
LLANFAIR HOUSE CARE AND
REHABILITATION CENTER,
Defendant.
_________________________________________
Submitted October 10, 2017 – Decided November 9, 2017
Before Judges Accurso and O'Connor.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
F-011876-12.
Carmine E. Giordano and Sheryl A. Giordano,
appellants pro se.
Fein, Such, Kahn & Shepard, PC, attorneys
for respondent (Joshua B. Sears, on the
brief).
PER CURIAM
In this mortgage foreclosure action, defendants Carmine E.
Giordano and Sheryl A. Giordano appeal from the May 20, 2016
final judgment of foreclosure entered in favor of plaintiff
Indymac Venture, LLC.1 Defendants also appeal from five pendente
lite orders, entered April 19, 2013, April 1, 2014, December 9,
2014, March 20, 2015, and April 29, 2016. Following our review
of the record and applicable legal principles, we affirm.
I
We glean the following from the motion record. In 2003,
defendants obtained a loan in the amount of $340,000 from
IndyMac Bank, FSB. In consideration for that loan, defendants
executed a note and mortgage in favor of IndyMac Bank, FSB.
Subsequently, IndyMac Bank, FSB failed as an institution
and, in 2009, the Federal Deposit Insurance Corporation (FDIC)
became its receiver. Thereafter, on June 24, 2009, the FDIC
assigned defendants’ mortgage to IndyMac Venture, LLC. On
January 27, 2012, IndyMac Venture, LLC assigned the mortgage to
1
Defendant Llanfair House Care and Rehabilitation Center is
named in the complaint because it is another judgment creditor
of defendants; this defendant did not participate in this
appeal. For simplicity, for the balance of this opinion the
term “defendants” refers only to Carmine E. Giordano and Sheryl
A. Giordano.
2
A-5060-15T1
OneWest Bank, FSB (OneWest). On June 27, 2012, OneWest filed
the within action, alleging defendants defaulted on their
mortgage in September 2009 and remained in default.
While the litigation was still pending, on September 15,
2014, OneWest assigned the mortgage back to plaintiff Indymac
Venture, LLC. On December 9, 2014, the court entered an order
stating the complaint and all subsequent pleadings were amended
to reflect that plaintiff is IndyMac Venture, LLC.
During the litigation, various motions were filed that
resulted in the orders defendants now appeal. We surmise these
were the only orders before the entry of final judgment. We
review those motions and the ensuing orders, but for the sake of
brevity exclude reference to any issue in those motions not
relevant to the arguments defendants raise on appeal.
Order of April 19, 2013 - In 2013, plaintiff filed a
motion for summary judgment, which also included a request to
amend the complaint to name a judgment creditor inadvertently
excluded from the complaint. In their response, defendants
claimed plaintiff lacked standing to file the complaint because
it was not in possession of the mortgage when the complaint was
filed. In its reply, plaintiff pointed out defendants failed to
support its claim with any evidence.
3
A-5060-15T1
On April 19, 2013, the court struck defendants' answer and
entered default against them; granted plaintiff permission to
amend the complaint in the manner requested; and permitted
plaintiff to seek judgment through the Office of Foreclosure as
an uncontested action. The order stated the court’s reasons
were set forth on the record, but defendants failed to include a
copy of the transcript of the court’s decision in the record.
Plaintiff promptly filed an amended complaint, to which
defendants filed an answer asserting various defenses, including
that plaintiff did not have standing.
Order of April 1, 2014 - In 2014, plaintiff filed another
motion for summary judgment, essentially arguing it was entitled
to the entry of a judgment of foreclosure because it was the
holder of defendants’ mortgage, defendants defaulted on the
mortgage, and there were no facts to support any of the defenses
in defendants’ answer.
Defendants filed a response and a cross motion to dismiss
the complaint. Defendants did not contest there was in fact an
assignment of the mortgage to OneWest before it filed its
complaint in foreclosure. Instead, defendants claimed OneWest
had previously taken the position the mortgage had been assigned
to it in 2009, rendering OneWest’s subsequent claim it was
assigned the mortgage in 2012 inconsistent and untrustworthy.
4
A-5060-15T1
Defendants further contended all signatures affixed to any
previous assignments and allonges were forged.
We note here it is clear from a review of the record
defendants simply misunderstood the documentary evidence, which
demonstrates Onewest was assigned the mortgage in January 2012,
before the complaint was filed in June 2012. Even if OneWest
had taken the position it obtained the mortgage in 2009, the
fact remains OneWest was in possession of the mortgage when it
filed its complaint.
Defendants also argued the Notice of Intention to Foreclose
(NOI) was defective because it stated IndyMac Mortgage Services,
not OneWest, was the holder of the mortgage. There is no
dispute IndyMac Mortgage Services is a division of OneWest.
In its decision, the court found the technical error in the
NOI insignificant. After noting “IndyMac, [is] now a part of
One West,” the court stated, “[i]f there is a technical
inadequacy of the NOI, applying princi[ples] of equity to both
plaintiff and defendant, I will not require a new NOI or require
the plaintiff to withhold for 2 months an application to enter
final judgment . . . . [T]he default date is September 1, 2009.”
Finding defendants failed to produce any material facts to
support their remaining arguments, the court denied defendants’
cross motion.
5
A-5060-15T1
The court struck defendants’ answer and entered default
against them. The court also permitted the matter to proceed to
the Office of Foreclosure for further disposition. See R. 4:64-
1(d).
Order of December 9, 2014 – As previously stated, on this
date the court entered an order finding the complaint and all
subsequent pleadings deemed amended to state plaintiff is
IndyMac Venture, LLC. Defendants did not provide in its record
a copy of the court’s decision.
Order of March 20, 2015 – Defendants filed a motion to
reconsider the April 1, 2014 and December 9, 2014 orders.
Citing D’Atria v. D‘Atria, 242 N.J. Super. 392, 401 (Ch. Div.
1990), the court denied the motion on the ground defendants
failed to bring any new evidence or law to the court’s
attention.
Order of April 29, 2016 – Plaintiff filed a motion for
entry of final judgment with the Office of Foreclosure, pursuant
to Rule 4:64-1(d). Defendants responded by filing a motion to
fix the amount due, challenging the sufficiency of plaintiff’s
proofs in its certification in support of its motion for entry
of final judgment.
The court denied defendants’ objection, noting they failed
to produce any evidence contesting the amount due. On May 20,
6
A-5060-15T1
2016, the court entered final judgment in favor of plaintiff and
against defendants.
II
On appeal, defendants assert the following arguments for
our consideration:
POINT I - THE TRIAL COURT ERRED IN ITS
CONCLUSION THAT ONEWEST BANK HAD STANDING TO
FILE THE COMPLAINT.
POINT II - INADEQUATE CERTIFICATION TO
SUPPORT SUMMARY JUDGMENT.
POINT III - THE NOTICE OF INTENTION TO
FORECLOSE IS DEFECTIVE.
POINT IV - THE COMPLAINT MUST BE DISMISSED
UNDER THE UNCLEAN HANDS DOCTRINE.
Having scrutinized the record and applicable legal
authority, we are satisfied none of defendants’ arguments
possesses sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We note some of the arguments
were not raised before the trial court and, generally, "an
appellate court will not consider issues, even constitutional
ones, which were not raised below." State v. Galicia, 210 N.J.
364, 383 (2012). Defendants do not articulate any argument in
support of its third argument point, and their remaining
arguments are not supported by the record. We add only the
following brief comment.
7
A-5060-15T1
OneWest demonstrated its standing to foreclose the mortgage
based upon its assignment of the mortgage from IndyMac Venture.
Upon that assignment, plaintiff became the holder of the
mortgage. The assignment predated the filing of the foreclosure
complaint. As holder of the mortgage, OneWest had standing to
file a complaint in foreclosure and enforce the mortgage in this
foreclosure proceeding. See Deutsche Bank Nat'l Trust Co. v.
Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011).
Affirmed.
8
A-5060-15T1