LAKEVIEW LOAN SERVICING, LLC VS. JOHN JUBELT Â (F-031413-14, 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NOT FOR PUBLICATION WITHOUT THE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-3761-15T4
LAKEVIEW LOAN SERVICING, LLC,
Plaintiff-Respondent,
v.
JOHN JUBELT,
Defendant-Appellant,
and
MRS. JOHN JUBELT,
Defendant.
________________________________
Submitted October 23, 2017 – Decided November 17, 2017
Before Judges Whipple and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No.
F-031413-14.
Law Offices of Joseph A. Chang, attorneys for
appellant (Joseph A. Chang, of counsel and on
the brief; Jeffrey Zajac, on the brief).
KML Law Group, PC, attorneys for respondent
(Jaime R. Ackerman, of counsel and on the
brief).
PER CURIAM
Defendant appeals from a March 24, 2016 final judgment in
foreclosure. We affirm.
We discern the following facts from the record. On June 12,
2009, John Jubelt (defendant), executed a note in favor of United
Northern Mortgage Bankers, Ltd (United) for $242,165 secured by a
mortgage against his home. He borrowed the money so he could buy
his ex-wife's interest in the house as agreed upon in the divorce
proceedings. Defendant asserts he was the victim of predatory
lending practices by United and wanted to back out of the closing.
Because he had a deadline to meet under the terms of the divorce
agreement with his former spouse, he executed the note and mortgage
to Mortgage Electronic Registration System (MERS) as nominee for
United. Defendant defaulted on the note on August 1, 2011.
On October 27, 2011, MERS assigned the mortgage to Bank of
America, NA, a successor by merger to BAC Home Loans Servicing LP,
formerly known as Countrywide Home Loans Servicing LP, and on
December 31, 2013, the mortgage was further assigned by Bank of
America to plaintiff. On January 13, 2014, the assignment was
recorded with the office of the Bergen County Clerk. On July 31,
2014, plaintiff filed a complaint to foreclose after having sent
defendant a notice of intent to foreclose.
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Defendant filed an answer asserting numerous defenses,
including the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -
20 (CFA), and the Fair Forfeiture Foreclosure Act, N.J.S.A. 2A:50-
53 to -68 (FFA).
Plaintiff moved for summary judgment on May 1, 2015. In
support of its motion, plaintiff submitted the certification of a
banking officer employed by M&T Bank, as attorney in fact for
plaintiff. The certification set forth the officer's familiarity
with business records pertaining to defendant's account and
certified plaintiff was in possession of the note and assigned the
mortgage prior to filing the complaint.
Defendant cross-moved to dismiss the complaint arguing
consumer fraud, lack of notice, and outstanding discovery
precluded summary judgment. On June 12, 2015, the court dismissed
the CFA and FFA claims. The judge permitted additional depositions
to be taken of bank employees. On August 14, 2015 the judge
entered an order denying defendant's motion to dismiss and granting
summary judgment to plaintiff. Final judgment was entered on
March 24, 2016. This appeal followed.
Defendant argues the court should not have granted summary
judgment because he presented a prima facie case of predatory
lending and other affirmative defenses, which the court should
have addressed. We disagree.
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In reviewing a trial court's decision to grant a motion for
summary judgment, the appellate court conducts a de novo review,
using the same standard as the trial court. Globe Motor Co. v.
Igdalev, 225 N.J. 469, 479 (2016); Prudential Prop. & Cas. Ins.
Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif.
denied, 154 N.J. 608 (1998). It decides first whether there was
a genuine issue of fact. If there was not, it then decides whether
the trial court's ruling on the law was correct. Walker v. Alt.
Chrysler Plymouth, 216 N.J. Super. 255, 258 (App. Div. 1987).
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995), articulates the rule for determining whether there is a
genuine issue of fact. The judge must engage in a weighing process
and decide whether
the competent evidential materials presented,
when viewed in the light most favorable to the
non-moving party, are sufficient to permit a
rational factfinder to resolve the alleged
disputed issue in favor of the non-moving
party . . . . If there exists a single,
unavoidable resolution of the alleged disputed
issue of fact, that issue should be considered
insufficient to constitute a 'genuine' issue
of material fact for purposes of Rule 4:46-2.
[Ibid.].
Thus, "when the evidence is so one-sided that one party must
prevail as a matter of law, . . . the trial court should not
hesitate to grant summary judgment." Ibid.
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To establish a prima facie right to foreclose on a mortgage,
there must have been execution, recording and non-payment of the
mortgage. Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App.
Div. 1952); see Somerset Tr. Co. v. Sternberg, 238 N.J. Super.
279, 283 (Ch. Div. 1989).
Based on our review of the record, we are satisfied plaintiff
established a prima facie right to foreclose on the mortgage.
Defendant, in his certification in opposition to the motion for
summary judgment, conceded, "I executed a Note and Mortgage
securing the $242,165 Loan to [MERS] as nominee for [United]."
Defendant also admitted the mortgage was duly recorded and did not
deny there was a default on the mortgage.
Additionally, a party attempting to foreclose a mortgage
"must own or control the underlying debt." Deutsche Bank Nat'l
Tr. Co. v. Mitchell, 422 N.J. Super. 214, 223 (App. Div. 2011)
(quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597
(App. Div. 2011)). Parties who can enforce such a negotiable
instrument, such as a note, include "the holder of the instrument,
a nonholder in possession of the instrument who has the rights of
a holder, or a person not in possession of the instrument who is
entitled to enforce the instrument pursuant to N.J.S.A. 12A:3-309
or subsection d of [N.J.S.A.] 12A:3-418." N.J.S.A. 12A:3-301.
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Based on our review of the record, we are satisfied plaintiff
has demonstrated it was the holder of the note, thereby
establishing the assignment was valid, and plaintiff had standing
to foreclose.
Defendant argues the trial judge erred by allowing
inadmissible hearsay by plaintiff's witness which allowed
admission of documents into evidence during trial to establish
plaintiff's standing. We review evidentiary rulings by a trial
court under the abuse of discretion standard. Estate of Hanges
v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010).
Plaintiff's attorney in fact presented a certification based
upon the business record exception to the hearsay rule as an
employee of M&T Bank. She was familiar with the business records,
and testified the records were created in the ordinary course of
business. See N.J.R.E. 803(c)(6).1 We do not discern an abuse of
1
N.J.R.E. 803(c)(6) states:
A statement contained in a writing or other
record of acts, events, conditions, and,
subject to [Rule] 808, opinions or diagnoses,
made at or near the time of observation by a
person with actual knowledge or from
information supplied by such a person, if the
writing or other record was made in the
regular course of business and it was the
regular practice of that business to make it,
unless the sources of information or the
method, purpose or circumstances of
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the court's discretion in allowing the records, but even if the
decision were in error, it was harmless as there was an independent
basis for standing. Plaintiff produced an allonge proving the
assignment of the mortgage to plaintiff, which predated the filing
of the complaint. Thus, plaintiff had standing to enforce on this
basis alone.
Defendant argues the trial judge erred by not considering his
defenses and counterclaims. Based upon the record before us, we
see no reason to disturb the trial judge's finding that defendant
failed to establish by clear and convincing evidence the existence
of fraud. Additionally, defendant failed to support the remainder
of his affirmative defenses and counterclaims, including those
under the CFA and FFA by credible evidence in the record.
Defendant argues the trial judge erred in dismissing his
affirmative defense under the CFA without issuing findings of
facts or conclusions of law as required by Rule 1:7-4. We
disagree.
Under the CFA, the defendant must prove "(1) an unlawful
practice, (2) an ascertainable loss, and (3) a causal relationship
between the unlawful conduct and the ascertainable loss." Lee v.
preparation indicate that it is not
trustworthy.
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Carter-Reed Co., L.L.C., 203 N.J. 496, 521 (2010). Here, defendant
has not shown he has suffered an ascertainable loss. "An
ascertainable loss is a loss that is 'quantifiable or measurable';
it is not 'hypothetical or illusory.'" Id. at 522 (quoting
Thiedemann v. Mercedes-Benz USA, LLC, 183 N.J. 234, 248 (2005)).
At the June 12, 2015 hearing, the judge asked defendant,
"What is the ascertainable loss?" Defendant responded, "it would
be a calculation between what he paid out in the adjustable rate
mortgage with the adjustment after that period of time based upon
what he would have received had he gotten a 30-year fixed rate at
that percentage." This hypothetical loss does not support a CFA
claim. Furthermore, the judge found "[i]n the absence of any
proof that the lender committed to one thing and then switched,
there's no claim for consumer fraud based upon bait and switch."
Defendant was unable to provide proof of any unlawful practice
under the CFA.
Based on the foregoing, we clearly glean from the record the
basis for the trial judge's dismissal of defendant's CFA claim was
the lack of ascertainable loss. Additionally, our review of the
record shows defendant did not set forth any other sufficient
credible evidence to support his claim the plaintiff violated the
CFA.
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Therefore, the trial judge did not err in striking the
affirmative defenses and counterclaims under the CFA nor in
entering judgment for plaintiff.
Affirmed.
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