Opinion
DOCKET NO. A-3340-14T2
04-25-2016
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE RELATING TO CHEVY CHASE FUNDING LLC MORTGAGE BACKED CERTIFICATES SERIES 2007-1, Plaintiff-Respondent, v. JAMES PORPORA, Defendant-Appellant, and MRS. JAMES PORPORA, PNC BANK, CONSUMER LOAN CENTER and COLLATERAL CONTROL, Defendants.
Ira J. Metrick, attorney for appellant. Parker McCay, P.A., attorneys for respondent (Whitney E. Weinlein, of counsel; Stacy L. Moore, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Currier. On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-23873-12. Ira J. Metrick, attorney for appellant. Parker McCay, P.A., attorneys for respondent (Whitney E. Weinlein, of counsel; Stacy L. Moore, Jr., on the brief). PER CURIAM
In this appeal, defendant James Porpora argues that plaintiff U.S. Bank National Association did not have standing to pursue foreclosure of his residential property and that the chancery judge erred in denying his motion for additional discovery prior to granting summary judgment. We find no merit in defendant's arguments and affirm.
There is no dispute that in January 2007, defendant executed a note promising to pay Chevy Chase Bank, F.S.B., the amount of $433,500, and a mortgage that encumbered his Freehold residence, in favor of Mortgage Electronic Registration Systems, Inc., as nominee for Chevy Chase Bank. Defendant defaulted in April 2009, and in October 2012, after a passage of more than three years, during which the parties engaged in efforts to arrive at a modification agreement, plaintiff commenced this foreclosure action. Defendant served discovery requests predominantly aimed at exploring plaintiff's standing to sue. After providing some discovery — but apparently not all that defendant desired — defendant moved for additional discovery; plaintiff moved for summary judgment. Judge Patricia Del Bueno Cleary denied defendant's discovery motion and granted plaintiff's summary judgment motion on September 12, 2013. Once final judgment was entered on February 11, 2015, defendant — who remains in possession of the property — appealed, arguing:
In late March 2016, defendant applied for emergent handling of a motion for a stay pending appeal of a sheriff's sale, which had been scheduled for April 4, 2016. In light of this appeal's calendar date, plaintiff consented to a stay of the sheriff's sale pending our disposition of the merits of this appeal. An order to that effect was entered on April 5, 2016.
I. SUMMARY JUDGMENT WAS INAPPROPRIATE BECAUSE DISCOVERY WAS INCOMPLETE.
A. Defendant Had The Right To Additional Discovery Prior To Awarding Summary Judgment.
B. A Genuine Issue Arose Regarding The Transfer Of Ownership Based On The Recitation In The Assignment Which Therefore Warranted Defendant[']s Application To Compel Discovery.
II. PLAINTIFF FAILED TO ESTABLISH STANDING.
We find insufficient merit in these arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth by Judge Cleary in her oral decision. We add only the following brief comments.A. Plaintiff Did Not Establish It Had Possession Of The Note When It Filed The Complaint.
B. The Certification Of The Servicer's Employee Was Not Based On Personal Knowledge And Was Insufficient To Establish Standing.
Here, it is noteworthy that plaintiff's summary judgment motion demonstrated that plaintiff had recorded an assignment of the mortgage prior to the commencement of the suit and asserted its possession of the note — either of which circumstances established plaintiff's standing to sue. See Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012); Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011). Although defendant forcefully attempted to question the content of a pooling and servicing agreement and its impact on the assignment, we find this contention to be inconsequential to defeat summary judgment, and we conclude, as did the chancery judge, that there was no purpose in permitting a further fishing expedition into the circumstances that led to the assignment of the mortgage or plaintiff's possession of the note; plaintiff has waited long enough for its remedy.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
The stay we entered on April 5, 2016, is hereby vacated. However, so as to permit an unhurried application to the Supreme Court — should defendant seek its review of our judgment — we direct that the sheriff's sale not be scheduled for any date sooner than May 16, 2016. --------
CLERK OF THE APPELLATE DIVISION