THE BANK OF NEW YORK MELLON, ETC. VS. KAREN SAINT (F-037841-14, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-4358-16T3
THE BANK OF NEW YORK MELLON,
as indenture trustee, not in
its individual capacity but
solely as indenture trustee
for GREENPOINT HOME EQUITY
LOAN TRUST SERIES 2004-1,
Plaintiff-Respondent,
v.
KAREN SAINT,
Defendant-Appellant,
and
MR. SAINT, unknown spouse of
KAREN SAINT and SLOMIS'S, INC.,
Defendants.
______________________________
Submitted March 13, 2018 – Decided July 9, 2018
Before Judges Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. F-037841-14.
Karen Saint, appellant pro se.
Stradley, Ronon, Stevens & Young, LLP,
attorneys for respondent (Jacqueline Aiello
and Eric M. Hurwitz, on the brief).
PER CURIAM
Defendant Karen Saint appeals from a March 4, 2016 order
denying her cross-motion to dismiss plaintiff Bank of New York
Mellon's (Mellon) foreclosure complaint; a June 24, 2016 order
granting Mellon's motion for summary judgment, striking
defendant's answer, entering default judgment against defendant,
and forwarding the matter to the Office of Foreclosure to proceed
as uncontested; a March 6, 20171 order denying defendant's motion
to cancel the mortgage;2 and a final judgment of foreclosure
entered on April 3, 2017.
Defendant argues:
POINT 1
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION CONCLUDING THE ASSIGNMENT OF
MORTGAGE DEMONSTRATES THE MORTGAGE WAS
ASSIGNED TO PLAINTIFF.
1
The notice of appeal incorrectly dates this order as March 3,
2017.
2
Defendant did not brief this issue and we will not consider an
argument not properly advanced. Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011). We, nonetheless, state our
agreement with the trial judge's rationale and holding in denying
defendant's motion.
2 A-4358-16T3
POINT 2
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION CONCLUDING PLAINTIFF POSSESSED THE
ORIGINAL NOTE ON SEPTEMBER 9, 2014.
POINT 3
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION CONCLUDING PLAINTIFF POSSESSED THE
ORIGINAL NOTE ON SEPTEMBER 9, 2014.
POINT 4
THE TRIAL COURT ERRED IN ITS CONCLUSION
WHETHER THERE WAS SUFFICIENT EVIDENCE TO
CONCLUDE PLAINTIFF MET ALL NOTICE REQUIREMENTS
UNDER FEDERAL AND STATE LAW.
POINT 5
THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY NOT FOLLOWING SUMMARY JUDGMENT
CIVIL PROCEDURE.
We conclude these arguments are meritless and affirm.
Defendant first contends the trial judge abused her
discretion in concluding the assignment of mortgage demonstrated
that the mortgage was assigned to Mellon, arguing the
certifications submitted by employees of Ocwen Loan Servicing, LLC
(Ocwen),3 did not sufficiently establish that Mellon and the
assignee were the same so as to support the grant of summary
judgment. The judge declined that argument, finding "not even a
scintilla of information that would support that argument." We
3
Ocwen was plaintiff's loan servicer.
3 A-4358-16T3
agree. The judge considered an assignment to Mellon, "[formerly]
known as Bank of New York as trustee, for the certificate holders
of Greenpoint Loan Trust 2004[-]1" recorded on January 26, 2010.
The March 31, 2016 certification submitted by Ocwen employee Jesse
Rosenthal4 addressed defendant's contention that "Greenpoint Home
Loan Trust" and Mellon were "two different trust[s]," explaining
Mellon, formerly known as "The Bank of New York as Trustee for the
Certificateholders of GreenPoint Mortgage Loan Trust 2004-1 and
[Mellon], as Indenture Trustee, not in its individual capacity but
solely as Indenture Trustee for Greenpoint Home Equity Loan Trust
2004-1 are one in the same entity."
Defendant's argument that the judge abused her discretion by
concluding plaintiff possessed the note on the date the foreclosure
complaint was filed — September 9, 2014 – is without merit. The
judge initially found the certification of Ocwen employee Samantha
Ball to be insufficient to prove plaintiff's possession of the
note at the time the complaint was filed. Rosenthal's
certification presented that his review of the loan documents
revealed Ocwen, since the date the complaint was filed, had been
in "possession, custody, and control" of the original note
4
The judge directed plaintiff to file a supplemental
certification.
4 A-4358-16T3
defendant executed; specifically, since September 8, 2014.5 We
reject defendant's argument that the certification is
contradictory as to those dates. Rosenthal merely referenced the
date the complaint was filed and the date the note came into
possession.
"[W]e [have] held that either possession of the note or an
assignment of the mortgage that predated the original complaint
confer[s] standing." Deutsche Bank Tr. Co. Ams. v. Angeles, 428
N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Tr.
Co. Ams. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)).
There is ample proof regarding both the note and the assignment;
plaintiff had standing.
We determine the balance of defendant's arguments6 – that the
judge abused her discretion in finding there was sufficient
evidence to conclude defendant defaulted on April 1, 2009; erred
in concluding plaintiff met the notice requirements under State
and federal law; and erred by accepting plaintiff's deficient
certifications – are without sufficient merit to warrant
5
Rosenthal's certification was included in defendant's appendix.
Both exhibits Rosenthal referenced as support for his contentions
were not, however, included in the record.
6
We do not see that any of these arguments were raised to the
trial judge. Although we need not consider them, Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973), we address them briefly.
5 A-4358-16T3
discussion. R. 2:11-3(e)(1)(E). Rosenthal's certification
complied with Rule 4:64-1(a)(2) and -2(a) through (c), and set
forth the date of the default and that a Notice of Intent to
Foreclose (NOI) was sent to defendant on March 28, 2014 in
accordance with the Fair Foreclosure Act,7 N.J.S.A. 2A:50-56. They
were properly considered by the judge.
"The only material issues in a foreclosure proceeding are the
validity of the mortgage, the amount of the indebtedness, and the
right of the mortgagee to resort to the mortgaged premises." Great
Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993),
aff'd o.b., 273 N.J. Super. 542 (App. Div. 1994).
A mortgagor opposing summary judgment has a duty to present
facts controverting the mortgagee's prima facie case. Spiotta v.
William H. Wilson, Inc., 72 N.J. Super. 572, 581 (App. Div. 1962).
Unexplained conclusions and "[b]ald assertions are not capable of
. . . defeating summary judgment." Ridge at Back Brook, LLC v.
Klenert, 437 N.J. Super. 90, 97-98 (App. Div. 2014). As the motion
judge found, defendant has raised nothing more than bald
7
Again, the exhibit supporting Rosenthal's contentions was not
included in this record; a copy of the NOI, however, is included
in defendant's appendix.
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assertions. We apply the same standard8 but do not defer to the
trial court's conclusion granting or denying summary judgment.
Townsend v. Pierre, 221 N.J. 36, 59 (2015). Having addressed
defendant's contested issues, and there being no material issues
otherwise raised, we conclude the judge correctly granted summary
judgment and entered final judgment of foreclosure.
Affirmed.
8
The standard that governs the trial court, requires denial of
summary judgment when "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." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540
(1995).
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