Opinion
DOCKET NO. A-3769-13T3
06-09-2015
U.S. BANK NATIONAL ASSOCIATION, AS LEGAL TITLE TRUSTEE FOR TRUMAN 2012 SC TITLE TRUST, Plaintiff-Respondent, v. AUSLENE SIMON, MR. SIMON, HUSBAND OF AUSLENE SIMON, Defendants, and BERYL OTIEMO-NGOJE, Defendant-Appellant.
Joseph A. Chang & Associates, LLC, attorneys for appellant (Mr. Chang, of counsel and on the briefs; Jeffrey Zajac, on the briefs). 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli and Guadagno. On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-29329-12. Joseph A. Chang & Associates, LLC, attorneys for appellant (Mr. Chang, of counsel and on the briefs; Jeffrey Zajac, on the briefs). Parker McCay, P.A., attorneys for respondent (Whitney E. Weinlein, of counsel; Stacy L. Moore, Jr., on the brief). PER CURIAM
In this foreclosure matter, defendant Beryl Otiemo-Ngoje appeals from the November 14, 2013 Law Division order, which granted summary judgment to plaintiff U.S. Bank National Association, and from the March 10, 2014 final judgment in foreclosure. For the following reasons, we affirm.
We derive the following facts from the record. On January 25, 2008, defendant Auslene Simon (Simon) executed a note to GFI Mortgage, Inc. (GFI) in the amount of $275,400. To secure payment of the note, Simon executed a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for GFI, on property located in Orange. The mortgage was recorded with the Essex County Register on February 19, 2008. Simon defaulted on April 1, 2009. On June 26, 2009, Simon executed a deed transferring title to the property to defendant. The deed was recorded with the Essex County Register on April 20, 2010.
GFI executed an allonge endorsing the note to Wells Fargo, N.A. (Wells Fargo). On August 5, 2009, MERS, as nominee for GFI, executed an assignment of mortgage to Wells Fargo. The assignment was recorded with the Essex County Register on August 19, 2009.
Wells Fargo executed the allonge endorsing the note to plaintiff. On February 1, 2012, Wells Fargo executed an assignment of mortgage to plaintiff. The assignment was recorded with the Essex County Clerk's Office on September 6, 2012.
On May 16, 2012, plaintiff transferred service of the mortgage loan to Rushmore Loan Management Services, LLC (Rushmore). On May 18, 2012, Rushmore notified Simon that the servicing of her mortgage loan had been assigned to Rushmore, effective May 16, 2012.
On December 10, 2012, plaintiff filed a complaint for foreclosure against Simon, defendant and others. Defendant filed an answer and counterclaim. Plaintiff filed a motion for summary judgment. In support thereof, plaintiff relied on the deposition testimony of a representative from Rushmore who testified based on her review of the original note, allonge, mortgage and the two assignments and her familiarity with the chain of custody of the note. Although the representative did not know the exact date plaintiff came into possession of the note, she testified that plaintiff transferred servicing of the loan to Rushmore on May 16, 2012, Rushmore entered the loan into its system that day, and Rushmore received the original loans documents from the custodian.
Defendant filed a cross-motion. She admitted that Simon executed the note and mortgage and was in default. She admitted she held title to the property and argued that plaintiff lacked standing to foreclose because it did not establish that it owned or controlled the note prior to filing the complaint.
In a November 14, 2013 oral opinion, the court found that plaintiff had standing to foreclose because it held the note and had and assignment of the mortgage prior to filing the complaint. The court granted summary judgment to plaintiff, struck defendant's answer and counterclaim and remanded the matter to the Foreclosure Unit. The court entered final judgment on March 10, 2014. This appeal followed.
On appeal, defendant reiterates that plaintiff lacked standing to file the complaint because it did not establish ownership or control of the note or validate the assignments. We disagree.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). "Summary judgment must be granted if 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas, supra, 213 N.J. at 478.
The evidence in this case clearly established that plaintiff had standing when it filed the foreclosure complaint. "[S]tanding is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)." Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012). The judgment is "voidable" unless the plaintiff has standing from either possession of the note or an assignment of the mortgage that predated the original complaint. See Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 319-20 (App. Div. 2012). Here, plaintiff had both possession of the original note and an assignment of the mortgage prior to filing the complaint. Accordingly, the court correctly determined that plaintiff had standing in this matter, and properly granted summary judgment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION