STATE OF NEW JERSEY VS. HECTOR W. GONZALEZ(01-06-0673 AND 01-07-0717, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-0031-15T4
NATIONSTAR MORTGAGE, LLC,
Plaintiff-Respondent,
v.
DEAN MARCIANO,
Defendant-Appellant,
and
CHRISTINE MARCIANO, a/k/a
CHRISTINE M. MARCIANO,
THE PLASTIC SURGERY CENTER;
DISCOVERY BANK; and MIDLAND
FUNDING LLC,
Defendants.
_______________________________________________
Submitted March 21, 2017 – Decided April 18, 2017
Before Judges Yannotti, Gilson, and Sapp-
Peterson.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-027407-14.
Dean Marciano, appellant pro se.
Sandelands Eyet LLP, attorneys for respondent
(Kathleen Cavanaugh, of counsel and on the
brief).
PER CURIAM
In this foreclosure matter, defendant Dean Marciano appeals
from an order entered by the Chancery Division on March 9, 2015,
striking his answer, and an order entered on June 12, 2015, which
denied his motion to vacate the final judgment and dismiss the
complaint. We affirm.
I.
We briefly summarize the relevant facts and procedural
history. Christine M. Marciano borrowed $417,000 from Countrywide
Home Loans, Inc. (Countrywide) and executed a note dated October
20, 2006, promising to repay that amount, with interest, in monthly
installments. The obligation to repay the note was secured by a
mortgage issued to Countrywide that was executed on October 20,
2006, by Ms. Marciano and defendant, on certain property in
Manalapan, New Jersey. The mortgage was recorded in the Office of
the Monmouth County Clerk (MCC) on November 14, 2006. Ms. Marciano
defaulted on the payments due on the note on May 1, 2011.
On September 22, 2011, Mortgage Electronic Registration
Systems, Inc. assigned the mortgage to Bank of America, N.A. The
assignment was recorded in the Office of the MCC on September 30,
2011. A corrected assignment, dated April 2, 2013, was executed
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and duly recorded. On March 6, 2014, Bank of America, N.A. assigned
the mortgage to plaintiff Nationstar Mortgage, LLC, and that
assignment was duly recorded on March 18, 2014.
Plaintiff commenced its foreclosure action on July 3, 2014.
Ms. Marciano did not contest the foreclosure, but defendant filed
an answer disputing liability. Defendant did not, however, appear
at the case management conference held on December 15, 2014. In
addition, defendant did not respond to plaintiff's requests for
admissions regarding the authenticity and validity of the note and
mortgage, the default, or plaintiff's status as holder of the note
and mortgage.
On February 2, 2015, plaintiff filed a motion to strike
defendant's answer. Although defendant filed a response to the
motion, he did not appear at the oral argument on that motion,
which had been scheduled for March 6, 2015, at his request. The
court entered an order dated March 9, 2015, granting plaintiff's
motion. In ruling on the motion, the judge noted that plaintiff
had established a prima facie case in support of foreclosure, and
defendant had not pled specific facts to support any defense.
Plaintiff then filed a motion for entry of the final judgment
of foreclosure. Defendant did not oppose the motion. The final
judgment was entered on April 21, 2015.
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In May 2015, defendant filed a motion pursuant to Rule 4:50-
1 to vacate the final judgment and dismiss the complaint. The
judge considered the motion on June 11, 2015, and placed her
decision on the record that day. The judge stated that defendant
was raising the same issues he had raised when plaintiff sought
to strike his answer.
The judge noted that she had previously found that plaintiff
had standing to foreclose, the assignments of the mortgage were
valid, and the notice of intent to foreclose was valid. The judge
also noted that plaintiff's business records established default,
and there was no basis for defendant's claim that plaintiff
committed fraud. The judge entered an order dated June 12, 2015,
denying the motion. This appeal followed.
On appeal, defendant argues: (1) plaintiff failed to
establish that it had possession of the original note during the
foreclosure action; (2) the assignment of the mortgage to plaintiff
is invalid; (3) without possession of the note or valid assignment
of the mortgage, plaintiff did not have standing to foreclose; (4)
the notice of intent to foreclose misidentifies plaintiff as the
lender; and (5) the court abused its discretion and erred by
ignoring defendant's evidence in failing to dismiss the complaints
pursuant to the "unclean hands" doctrine.
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II.
Defendant argues that the trial court erred by granting
plaintiff's motion to strike his answer, which was essentially a
motion for summary judgment pursuant to Rule 4:46-2(c). The rule
provides that a court may grant summary judgment if the moving
party shows that there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law. Ibid.
When deciding a summary judgment motion, the trial court
considers "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." Brill
v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We
apply the same standard when reviewing an order granting summary
judgment. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405
(2014).
In support of its motion to strike defendant's answer,
plaintiff presented the trial court with several certifications
and supporting evidence establishing default under the note and
standing to foreclose. Defendant argues, however, that the trial
court should have rejected the certification of Eboney Jones, one
of plaintiff's employees, which sets forth facts concerning
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plaintiff's possession of the note and the assignment of the
mortgage.
Defendant asserts that Ms. Jones does not have personal
knowledge of the facts in her certification. However, in her
certification, Ms. Jones stated that her statements were based
upon records maintained by plaintiff, with which she is familiar.
Defendant also asserts that Ms. Jones only stated that plaintiff
maintained the subject records in its capacity as plaintiff's
servicer, but according to Ms. Jones, plaintiff also possessed
the original note and an assignment of the mortgage. The trial
court did not err by accepting Ms. Jones's certification and
relying upon the facts stated therein.
Defendant further argues that plaintiff's statement of the
amount of taxes it paid was not accurate. Plaintiff's certification
refers to tax payments made in 2012 and 2013. Defendant claims
that only four payments would have come due during that period.
However, defendant did not submit any evidence or certification
in support of his assertion. He failed to show that there were no
past-due tax payments that would account for the fifth payment
referred to in plaintiff's statement.
Defendant's remaining arguments regarding the order striking
his answer are without sufficient merit to warrant discussion. R.
2:11-3(e)(1)(E). We note, however, that plaintiff established that
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it possessed the original note and had a valid assignment of the
mortgage before it filed its foreclosure complaint. Standing to
foreclose may be established by either possession of the note or
a valid assignment that predates the foreclosure complaint.
Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318
(App. Div. 2012). Therefore, plaintiff established standing to
foreclose.
We conclude that the trial court correctly found that
defendant had not presented evidence raising a genuine issue as
to any issue of fact pertaining to plaintiff's right to foreclose.
The court did not err by granting plaintiff's motion to strike
defendant's answer.
III.
We next consider defendant's contention that the trial court
erred by denying his motion to vacate the final judgment of
foreclosure pursuant to Rule 4:50-1.
The rule provides that the court may relieve a party from a
judgment for the following reasons:
(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under [Rule] 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the
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judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.
[R. 4:50-1.]
A trial court's decision on a Rule 4:50-1 motion is entitled
to "substantial deference, and should not be reversed unless it
results in a clear abuse of discretion." US Bank Nat'l Assoc. v.
Guillaume, 209 N.J. 449, 467 (2012) (citations omitted). An abuse
of discretion may be found when a decision lacks a "rational
explanation," represents an inexplicable "departure from
established policies," or rests "on an impermissible basis." Ibid.In this matter, defendant argues that he was entitled to
relief under Rules 4:50-1(c) and (f). Defendant contends he
submitted evidence to the trial court which shows that plaintiff
did not have possession of the original note at any time during
the foreclosure proceedings. Defendant asserts that plaintiff
improperly relied upon a faxed copy of the original note. Defendant
suggests that, since plaintiff submitted a faxed copy of the note,
plaintiff did not have possession of the original.
We find no merit in these arguments. As noted previously, Ms.
Jones stated in her certification that plaintiff was in possession
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of the original note when it filed its foreclosure complaint.
Defendant did not submit any credible evidence to refute Ms.
Jones's statement. The use of a faxed copy does not establish that
plaintiff did not have the original note, or that plaintiff
obtained the judgment as a result of a fraud or forgery.
In any event, as we have explained, plaintiff established
that it had a valid assignment of the mortgage. This was sufficient
to give plaintiff standing to foreclose. Angeles, supra, 428 N.J.
Super. at 318.
In addition, defendant suggests that the assignments may have
been forged or otherwise unauthorized. In support of this
assertion, defendant relies upon information apparently obtained
from the internet website for Federal Home Loan Mortgage
Corporation (Freddie Mac), in which Freddie Mac states it is the
"owner" of defendant's mortgage and note. It is, however, unclear
what Freddie Mac meant by its statement that it was the "owner"
of the mortgage and note.
We note that in the information obtained by defendant on the
internet, Freddie Mac also states that the borrower should contact
his "lender," which it defines as the company to which the borrower
makes payments. Freddie Mac's general characterization of itself
as the "owner" is insufficient to rebut plaintiff's assertion that
it is the holder of the note and assignee of the mortgage.
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We therefore conclude that defendant failed to establish any
basis for relief under either Rules 4:50-1(c) or (f). Defendant
presented insufficient evidence to show that plaintiff obtained
the foreclosure judgment by means of a fraud or forgery. He also
failed to show that there was any reason that would justify
granting defendant relief from the judgment.
We have considered defendant's other arguments and conclude
that they are without sufficient merit to warrant discussion in
this opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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