STATE OF NEW JERSEY VS. DERRICK WASHINGTON(10-06-1210, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-1811-15T2
DEUTSCHE BANK NATIONAL
TRUST COMPANY, AS TRUSTEE
FOR GSAMP 2006-FM1,
Plaintiff-Respondent,
v.
MEHMET SARHAN, MRS. MEHMET
SARHAN, HIS WIFE; MUHARREN
SARHAN,
Defendants-Appellants.
______________________________
Submitted January 9, 2017 – Decided March 31, 2017
Before Judges Nugent and Currier.
On appeal from the Superior Court of New
Jersey, Chancery Division, Morris County,
Docket No. F-19530-08.
Mehmet Sarhan, appellant pro se.
Reed Smith LLP, attorneys for respondent
(Henry F. Reichner, on the brief).
PER CURIAM
In this residential foreclosure action, defendant Mehmet
Sarhan appeals the November 23, 2015 final judgment. After a
review of the contentions in light of the applicable legal
principles, we affirm.
We discern the following facts and procedural history from
the record on appeal. On January 12, 2006, defendant executed a
$382,500 Promissory Note to FGC Commercial Mortgage Finance dba
Fremont Mortgage (Fremont Mortgage) and a mortgage in the same
amount to Mortgage Electronic Registration Systems, Inc. (MERS)
to secure the note.
On January 20, 2006, Fremont Mortgage assigned the mortgage
to Fremont Savings and Loan. The mortgage was recorded with the
Morris County Clerk on January 25. Goldman Sachs Mortgage Company
thereafter acquired the loan from Fremont Savings and Loan to
include it in a pool of mortgage loans to be deposited in the
GSAMP 2006-FM1 trust (the Trust). On May 20, 2008, MERS assigned
the mortgage to plaintiff Deutsche Bank National Trust Company as
trustee for the Trust. Defendant defaulted on the loan on February
1, 2008. A Notice of Intent to Foreclose (NOI) was sent on March
24, 2008; the NOI was later amended to identify plaintiff as the
lender.
Plaintiff filed a foreclosure complaint on May 21, 2008.
Defendant filed an answer in September 2008. However the answer
was stricken in November 2009; the judge noted there were no
meritorious defenses. The case was subsequently dismissed without
2 A-1811-15T2
prejudice for failure to prosecute in September 2013, but
reinstated in August 2014.
On September 9, 2014, plaintiff filed an amended foreclosure
complaint. Defendant filed an answer and affirmative defenses.
Plaintiff's motion to strike defendant's answer was granted on
June 22, 2015 by Judge Stephan P. Hansbury. In his statement of
reasons accompanying the order, Judge Hansbury found that
plaintiff had physical possession of the note and mortgage prior
to filing the foreclosure complaint, and therefore, plaintiff had
standing to bring a foreclosure action. The judge concluded that
there were no material issues of fact with respect to plaintiff's
right to foreclose and transferred the matter to the Foreclosure
Unit of the Superior Court of New Jersey to proceed as an
uncontested matter. Final judgment was entered on November 23,
2015.
On appeal, defendant raises the following issues:
I. The New Jersey Supreme Court has ruled that
an unjust result should be avoided.
II. N.J.S.A. 56:8-1 to -20 is in place to
protect consumers from the wrongful acts of
the mortgage institutions.
III. The plaintiff must meet specific criteria
to recover on a promissary [sic] note.
IV. The court has held that the lender must
be the owner of the note.
3 A-1811-15T2
V. Federal district courts have dismissed
foreclosure cases for lack of standing.
VI. The moving party must prove that it is,
in fact, a damaged party.
VII. The court has set specific rules that
were put in place especially in light of the
irregular practices of the banking industry.
We have considered defendant's contentions in light of the
record and applicable legal principles and conclude they are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
In order to have standing, the "party seeking to foreclose a
mortgage must own or control the underlying debt." Wells Fargo
Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)
(quoting Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28
(Ch. Div. 2010)). Standing is conferred by "either possession of
the note or an assignment of the mortgage that predated the
original complaint. . . ." Deutsche Bank Tr. Co. Ams. v. Angeles,
428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank
Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div.
2011)). Without ownership or control, a plaintiff cannot "proceed
with the foreclosure action and the complaint must be dismissed."
Wells Fargo Bank, supra, 418 N.J. Super. at 597 (quoting Bank of
N.Y., supra, 418 N.J. Super. at 357-59).
4 A-1811-15T2
Here, we are satisfied that plaintiff established a prima
facie case for foreclosure. Plaintiff clearly demonstrated its
standing to foreclose on the property based on the assignment of
the mortgage from MERS on May 20, 2008, which predated the May 21,
2008 filing of the foreclosure complaint. Upon that assignment
and underlying transfer of possession, plaintiff became the holder
of the instrument. Defendant argues plaintiff cannot substantiate
its possession of the note but provides no documentary evidence
in support of his argument. Therefore, defendant has not
established that he is entitled to relief from the final judgment.
Affirmed.
5 A-1811-15T2