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Wells Fargo Bank, N.A. v. Walsh

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Feb 1, 2016
DOCKET NO. A-0880-14T2 (App. Div. Feb. 1, 2016)

Opinion

DOCKET NO. A-0880-14T2

02-01-2016

WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. FRANCES WALSH and JOHN P. WALSH, and each of their heirs, devisees, and personal representatives, and his, her, their or any of their successors in right title and interest, Defendants-Appellants.

Frances Walsh and John P. Walsh, appellants pro se. Zucker, Goldberg & Ackerman, attorneys for respondent (Robert D. Bailey, on the brief).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges O'Connor and Suter. On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-15068-12. Frances Walsh and John P. Walsh, appellants pro se. Zucker, Goldberg & Ackerman, attorneys for respondent (Robert D. Bailey, on the brief). PER CURIAM

Defendants, Frances and John P. Walsh (the Walshes), appeal from an order granting summary judgment to plaintiff Wells Fargo Bank, N.A. (Wells Fargo), and an August 8, 2014 final judgment foreclosing their interest in certain residential real estate. They argue the court erred in dismissing their challenge to Wells Fargo's standing to commence this foreclosure action. We affirm.

On March 26, 2010, Frances Walsh, the owner of property in Hazlet, executed a note for $332,976 through her attorney-in-fact, James Walsh, to Mortgage Capital Associates, Inc. As security, she and her husband John P. Walsh, also through his attorney-in-fact, James Walsh, executed a mortgage on the same date to Mortgage Electronic Registration System, Inc. (MERS) as nominee for Mortgage Capital Associates, Inc. This mortgage was recorded on April 5, 2010. The Walshes admit signing the note and mortgage. Wells Fargo became the owner of the note on April 15, 2010, which the Walshes also acknowledge. Wells Fargo then indorsed the note in blank. The mortgage was assigned to Wells Fargo Bank, N.A. by MERS as nominee for Mortgage Capital Associates, Inc. on November 2, 2011. That assignment was recorded on November 10, 2011.

Prior to this assignment on July 1, 2011, Frances Walsh defaulted on the note. A Notice of Intention to Foreclose, as required under the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -68, was sent by Wells Fargo to the Walshes on September 4, 2011. When the mortgage was not brought current thereafter, a foreclosure complaint was filed on July 31, 2012. The Walshes' contesting answer was dismissed on December 6, 2013 when Wells Fargo's motion for summary judgment was granted. A final judgment of foreclosure was entered on August 8, 2014.

The December 6, 2013 order was amended on January 2, 2014 merely to show that the summary judgment motion had been contested. --------

Judge Patricia Del Bueno Cleary granted summary judgment to Wells Fargo, finding that it had standing because it owned and possessed the note as of April 15, 2010; the homeowners had defaulted under the note and mortgage; the required Notice of Intention to Foreclose was timely served; and that there was no issue of fact about the "execution of the mortgage, the creation of the indebtedness and the recording of the mortgage and default." The judge found further that Wells Fargo was in possession of the original note, all the assignments were proper and the certification of Wells Fargo's representative in support of the motion set forth all the remaining facts necessary for the entry of summary judgment. The Walshes' appeal raises the following issue:

Point I. THE TRIAL COURT ABUSED ITS DISCRETION ALLOWING PLAINTIFF'S INSUFFICIENT CERTIFICATION TO SUPPORT THE SUMMARY JUDGMENT MOTION.

Where there is an appeal from a summary judgment decision, we review the decision de novo, meaning that we apply the same standards used by the trial judge. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). The question then is whether the evidence, when viewed in a light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether the evidence is so one-sided that one party must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying this standard, the record amply supports Judge Cleary's finding that Wells Fargo had standing to bring this foreclosure action.

In a foreclosure matter, a party seeking to establish its right to foreclose on the mortgage must generally own or control the underlying debt. Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011); Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010). The debt is evidenced by a promissory note, which is a negotiable instrument. N.J.S.A. 12A:3-104. Article Three of the Uniform Commercial Code (UCC) addresses the enforceability of negotiable instruments. N.J.S.A. 12A:3-101 to -605. Under the UCC, a negotiable instrument can be enforced by any person entitled to enforce. N.J.S.A. 12A:3-301. Such persons can include a "holder" of the instrument, a non-holder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument. N.J.S.A. 12A:3-301.

Wells Fargo contended it was the holder of the note. A "holder" is defined as a person in possession of the instrument that is payable to the bearer or to an identified person that is the person in possession. N.J.S.A. 12A:1-201(20). A note can be indorsed in blank, meaning that it is not indorsed to a person. An instrument indorsed in blank becomes payable to the bearer and may be negotiated by transfer of possession alone unless and until it is specially indorsed. N.J.S.A. 12A:3-205(b).

Here, Wells Fargo certified that it owned and possessed the note as of April 15, 2010. Although it was subsequently indorsed in blank, then making the note "bearer paper," Wells Fargo's representatives twice produced the original note evidencing that it continued to maintain possession up to and through the date of the summary judgment motion. Wells Fargo's representatives certified that the note was acquired by Wells Fargo on April 15, 2010.

In their reply brief, the Walshes question whether Wells Fargo continued to be in possession of the note. Ignoring its actual physical possession of the note at the time of the summary judgment hearing, they rely solely upon an unexplained computer printout that, in addition to using the term "full settlement," also sets forth that the note was "acquired April 15, 2010," which is consistent with Wells Fargo's claim. Judge Cleary correctly found there was no issue of fact about Wells Fargo's standing because of its continued possession of the note since it was acquired in April 2010.

In Mitchell, supra, 422 N.J. Super. at 216, we held that to have standing, a foreclosing plaintiff must either have possession of the promissory note or an assignment of the mortgage that predated the original complaint. Here, in addition to possession of the note, the Walshes never factually refuted that the mortgage was assigned to Wells Fargo on November 2, 2011 and recorded on November 10, 2011. Those dates predated the filing of the foreclosure complaint in July 2012 and further support the determination that Wells Fargo had standing in this matter.

The Walshes take issue with the bank representative's supporting certification, contending his affidavit lacked personal knowledge because "he never looked at the note." However, this certification complied with N.J.R.E. 803(c)(6). "There is no requirement that the foundation witness [certifying that a record is a business record] possess any personal knowledge of the act or event recorded." New Century Fin. Servs. v. Oughla, 437 N.J. Super. 299, 326 (App. Div.), certif. denied sub nom. MSW Capital, LLC v. Zaidi, 218 N.J. 531 (2014). We have further held "certifications by [a plaintiff's] employees having personal knowledge of the books and records of plaintiff[] and the transactions whereby plaintiff[] acquired the . . . debts on which [it] sued" to be sufficient under the business records exception. Id. at 327. Here, the representative certified as to his "personal knowledge of the facts herein based upon my review of our business records made in the ordinary course of business, for this loan, as part of our regularly conducted business activity." Judge Cleary properly found this certification to be satisfactory and that Wells Fargo remained in possession of the original note.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION


Summaries of

Wells Fargo Bank, N.A. v. Walsh

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Feb 1, 2016
DOCKET NO. A-0880-14T2 (App. Div. Feb. 1, 2016)
Case details for

Wells Fargo Bank, N.A. v. Walsh

Case Details

Full title:WELLS FARGO BANK, N.A., Plaintiff-Respondent, v. FRANCES WALSH and JOHN P…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Feb 1, 2016

Citations

DOCKET NO. A-0880-14T2 (App. Div. Feb. 1, 2016)