DEUTSCHE BANK TRUST COMPANY AMERICAS, ETC. VS. DEBBIE A. WEINER (F-026288-16, SOMERSET COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2110-17T4
DEUTSCHE BANK TRUST
COMPANY AMERICAS, AS
TRUSTEE FOR RESIDENTIAL APPROVED FOR PUBLICATION
ACCREDIT LOANS, INC.,
November 8, 2018
MORTGAGE ASSET-BACKED
PASS-THROUGH CERTIFICATES, APPELLATE DIVISION
SERIES 2005-QSI4,
Plaintiff-Respondent,
v.
DEBBIE A. WEINER and CLIFFORD
R. WEINER,
Defendants-Appellants.
___________________________________
Submitted October 23, 2018 – Decided November 8, 2018
Before Judges Fisher, Geiger and Firko.
On appeal from Superior Court of New Jersey,
Chancery Division, Somerset County, Docket No. F-
026288-16.
Christopher D. Ferrara LLC, attorneys for appellants
(Christopher D. Ferrara, on the brief).
Blank Rome LLP, attorneys for respondent (Michael P.
Trainor, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
For many years, New Jersey lacked a statute of limitations for residential
foreclosure actions. Instead, for more than a century, our courts applied the time-
bar used in adverse possession actions: twenty years. See Colton v. Depew, 60
N.J. Eq. 454, 464 (E. & A. 1900); Security National Partners L.P. v. Mahler,
336 N.J. Super. 101, 106-07 (App. Div. 2000). In 2009, the Legislature made
up for lost time and enacted N.J.S.A. 2A:50-56.1, which codified Security
National Partners1 by declaring that a residential foreclosure action "shall not be
commenced following the earliest of" three points in time:
 Six years from "the date fixed for the making of
the last payment or the maturity date set forth in
the mortgage or the note," N.J.S.A. 2A:50-
56.1(a);
 Thirty-six years from the date the mortgage was
recorded or, if not recorded, from the date of
execution, N.J.S.A. 2A:50-56.1(b); and
 Twenty years from the date of a default that "has
not been cured," N.J.S.A. 2A:50-56.1(c).2
1
See Assemb. Fin. Insts. & Ins. Comm. Statement to S. No. 250 - L. 2009, c.
105 (Oct. 6, 2008).
2
For brevity's sake, we have omitted statutory language from the descriptions
of each subsection that has no bearing here.
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Defendants' contention that N.J.S.A. 2A:50-56.1(a)'s six-year time-frame
applies and bars this foreclosure action, which was filed seven years after their
uncured default, is without merit.
The record reveals that defendant Debbie A. Weiner borrowed $657,500
from Weichert Financial Services in 2005 and then executed in Weichert's favor
a promissory note that required monthly payments, the last of which was
scheduled for June 2035. To secure the note's repayment, both defendants
executed a mortgage that was recorded in 2005 and ultimately assigned to
plaintiff Deutsche Bank Trust Company Americas. 3
There is no dispute that defendants failed to make a scheduled August
2009 payment and all later monthly payments. After four discontinued suits,
Deutsche Bank commenced this foreclosure action in September 2016, more
than seven years after defendants' uncured default.
The parties eventually cross-moved for summary judgment. The judge
granted Deutsche Bank's motion, denied defendants' motion, and later denied
defendants' motion for reconsideration. Once final judgment was entered in
3
The mortgage was first assigned to Deutsche Bank Trust Company Americas,
as trustee for certain certificate holders, in 2009, and later assigned to Deutsche
Bank, as trustee for Residential Accredit Loans, Inc., 2005-QS14, the plaintiff
here, in 2013. The assignments were duly executed and recorded.
A-2110-17T4
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December 2017, defendants filed this timely appeal, arguing: (1) summary
judgment should not have been entered because discovery was incomplete and
there were genuine disputes about Deutsche Bank's claim, its standing to sue,
and its status as a holder; (2) their answer should not have been stricken; and (3)
the complaint was barred by the statute of limitations. We reject these
arguments and affirm. 4
In arguing the action was time-barred, defendants claim the six-year time
frame in subsection (a) was triggered in 2009 when their default triggered the
loan's acceleration. We disagree. Subsection (c) specifically provides a time
frame to be considered upon an uncured default. To interpret subsection (a) as
triggering the same event encompassed by subsection (c) would wreak havoc
with the clearly delineated provisions of N.J.S.A. 2A:50-56.1. We refuse to
inject such confusion into what the Legislature carefully planned when it
adopted this multi-part statute of limitations.
4
We find insufficient merit in defendants' first two points to warrant further
discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only as to the first
that, in moving for summary judgment, Deutsche Bank provided undisputed
evidence that it was in possession of the note, which was endorsed to it, and that
the mortgage assignments were duly executed and recorded. See Deutsche Bank
Trust Co. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012).
A-2110-17T4
4
Defendants' interpretation would also require that we ignore subsection
(a)'s plain language. That provision declares that the six-year period runs from
the date of the last payment or the maturity date "set forth in the mortgage or the
note." N.J.S.A. 2A:50-56.1(a). June 1, 2035 was the date "set forth" in the note
and mortgage here, and that date is the one and only date that triggers the six-
year period in subsection (a). There is no ambiguity; that conclusion is what the
plain language of the statute compels. See DiProspero v. Penn, 183 N.J. 477,
492 (2005). Any other conclusion would mangle the Legislature's carefully
phrased statute. State v. Clarity, 454 N.J. Super. 603, 608 (App. Div. 2018).
In short, the three events described in subsections (a), (b), and (c) of
N.J.S.A. 2A:50-56.1, were scheduled to occur in 2041 (six years after the 2035
maturity date), 2041 (thirty-six years after the 2005 recording of the mortgage),
and 2029 (twenty years from defendants' uncured default), respectively. Since
the earliest has yet to occur, this suit, commenced in September 2016, was not
time-barred.5
5
Although not raised, we assume N.J.S.A. 2A:50-56.1 applies to defendants'
argument that Deutsche Bank's suit was untimely even though the statute did not
become effective until August 6, 2009, approximately the same time as
defendants' default. Even if the statute had no application here, the result would
be the same, since the pre-statute twenty-year time-bar described in Colton and
Security National Partners would allow for the maintenance of this suit.
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Affirmed.
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