Opinion
DOCKET NO. A-1128-13T4
01-23-2015
ESB-B/W HOLDINGS, LLC, Plaintiff-Respondent, v. CHARLES TAWIL, Defendant-Appellant, and CAROLYN TAWIL, JPMORGAN CHASE BANK, N.A., and STATE OF NEW JERSEY, Defendants.
Charles Tawil, appellant pro se. Klehr, Harrison, Harvey, Branzburg, LLP, attorneys for respondent (Carol Ann Slocum, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Hoffman. On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-1045-12. Charles Tawil, appellant pro se. Klehr, Harrison, Harvey, Branzburg, LLP, attorneys for respondent (Carol Ann Slocum, on the brief). PER CURIAM
Defendant Charles Tawil ("Tawil") appeals from an order entered by the Chancery Division on February 7, 2013, denying his motion to vacate an order dated October 26, 2012, which granted a motion by plaintiff ESB-B/W Holdings, LLC ("ESB"), for summary judgment. We affirm.
This appeal arises from the following facts. On June 1, 2005, Tawil and Carolyn Tawil ("defendants") borrowed $910,000 from Emigrant Mortgage Company, Inc. ("Emigrant"), and executed an adjustable-rate note, which required repayment of the monies borrowed with interest in monthly installments. Among other things, the note provided that defendants would be in default if they failed to pay any monthly payment on the date it is due.
To secure the note, defendants executed and delivered to Emigrant a mortgage dated June 1, 2005, on certain land and premises in Holmdel, New Jersey. On February 8, 2006, the mortgage was recorded in the Office of the Clerk of Monmouth County.
On October 30, 2009, Emigrant assigned the note to ESB, which is its affiliate. Emigrant endorsed the note to plaintiff, by attaching an allonge, which made the note payable to ESB. Thereafter, ESB, through its affiliate Emigrant, added a blank endorsement to the allonge, which made the note payable to its bearer. In November 2011, the assignment was recorded in the Office of the Clerk of Monmouth County.
Defendants defaulted on the note by failing to pay the monthly installment due on March 1, 2011, and the monthly payments due thereafter. On January 20, 2012, ESB filed a complaint against defendants in the Chancery Division to foreclose on the mortgage, and on September 27, 2012, ESB filed a motion for summary judgment.
In support of that application, ESB submitted a certification of Joel Marcano ("Marcano"), which stated that, as of September 1, 2012, defendants owed $946,700.52 on the note, which included principal, late charges, other charges, and interest. ESB also filed a certification stating that the motion and supporting papers had been served on Tawil.
Defendants did not oppose the motion. The trial court entered an order dated October 26, 2012, granting ESB's motion. On January 23, 2013, Tawil filed a motion to vacate the order of summary judgment and to dismiss the foreclosure complaint. In a certification submitted in support of the motion, Tawil said he was never served with the summary judgment motion.
Tawil also asserted that ESB was not the lawful "owner and holder" of the note when the foreclosure action was commenced. Tawil therefore asserted that ESB's motion for summary judgment should not have been granted and that the complaint should be dismissed.
ESB opposed the motion, and filed a certification from Marcano, which disputed Tawil's assertion that ESB was not the lawful "owner and holder" of the note. Marcano said that on October 30, 2009, when Emigrant assigned the note to ESB, it endorsed the note in favor of ESB, and then endorsed the note in blank. Marcano asserted that, as of the date of the assignment, ESB had and continued to have possession of the original note, along with the mortgage and the other original loan documents. Marcano also said that the assignment had been recorded in November 2011, before the filing of the foreclosure complaint.
The trial court placed its decision on the record on February 7, 2013. The court rejected Tawil's claim that he was never served with the summary judgment motion. The court noted that Tawil had been served with the motion by Federal Express on September 27, 2012, and by regular mail sent on September 26, 2012, which had not been returned. Defendant was also sent copies of letters dated October 4, 2012, and October 10, 2012, from ESB's counsel to the court. In addition, while the motion was pending, ESB's counsel exchanged e-mail with a person who represented that he was Tawil's attorney.
The court also addressed Tawil's contention that ESB did not have standing to pursue the foreclosure action. The court noted that ESB had established that Emigrant had assigned the note and mortgage to it and that since that time, ESB had been the owner and holder of the note, with standing to foreclose. The court entered an order dated February 7, 2013, denying Tawil's motion.
Tawil appeals and argues: (1) this court must determine whether there was a genuine issue of material fact as to whether ESB was the owner and holder of the note and mortgage; (2) ESB's proof established that it was not the holder of the note and therefore lacked standing to foreclose; (3) the court must decide whether ESB was a holder of the note; (4) the court must determine whether ESB was in possession of the note and whether there was a proper endorsement when the foreclosure complaint was filed; (5) ESB's claim that it was the holder of the note was not supported by competent evidence; and (6) ESB's notice of its intent to foreclose did not comply with the Fair Foreclosure Act ("FFA"), N.J.S.A. 2A:50-53 to -68.
We have considered Tawil's arguments in light of the record and the applicable law, and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we add the following brief comments.
The trial court may grant summary judgment when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c).
When reviewing a trial court's order granting summary judgment, we apply the same standard utilized by the trial court in its own summary judgment determination. See e.g., Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). We note that "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995) (citations omitted).
Generally, "'a 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)). If the debt is evidenced by a negotiable instrument, such as the note that the defendant has executed, the instrument may be enforced by "'[1] the holder of the instrument[;] [a] non-holder in possession of the instrument who has the rights of [2] holder[;] or [3] person not in possession . . . who is entitled to enforce the instrument pursuant to [N. J.S.A.] 12A:3-309.'" Id. at 597 (quoting N.J.S.A. 12A:3-301).
A "holder" is a person in possession of the instrument if the instrument has been made payable to that person specifically, or to its bearer generally. N.J.S.A. 12A:1-201b(21)(a). Where ownership of the instrument is transferred, "negotiation" is required for the transferee to attain the status of a "holder." N.J.S.A. 12A:3-201a. Two elements are required for negotiation: transfer of possession and endorsement of the instrument to either the transferee or the bearer. N.J.S.A. 12A:3-201b.
Here, the undisputed facts presented to the motion judge established that ESB was the holder of the instrument, as a result of Emigrant's successful negotiation of the instrument to ESB. Tawil's contends, however, that ESB failed to present competent evidence to show that it was the holder of the instrument. We cannot agree.
ESB's status as holder of the instrument was established by Marcano's certification. As indicated therein, Marcano was an officer of Emigrant and ESB. Marcano certified that he had personal knowledge of the facts pertaining to ESB's status as holder of the instrument. See Ford, supra, 418 N.J. Super. at 599 (noting that the relevant facts showing holder status may be established by a certification if based on "personal knowledge" as required by Rule 1:6-6).
Tawil also argues, for the first time on appeal, that ESB's notice of intent to foreclose ("NOI") violated the FFA. He contends that ESB's NOI did not identify ESB as the "lender" of the obligation. He also contends that ESB did not possess an ownership interest in the note and mortgage when the NOI was issued. The record does not support these assertions.
The NOI is dated June 17, 2011. It referenced Emigrant and ESB, gave the address of each, provided a point of contact for Emigrant in its role as representative of ESB, and indicated that the obligation at issue was the note defendants issued to Emigrant, in the principal sum of $910,000 plus interest.
The NOI also stated that the obligation had been assigned to ESB. The assignment became effective on the date it was executed, not the date it was recorded. EMC Mortg. Corp. v. Chaudhri, 400 N.J. Super. 126, 141 (App. Div. 2008). Thus, ESB had an ownership interest in the note and mortgage when the NOI was issued, and the NOI properly notified Tawil of the identity of the lender in as required by the FFA. N.J.S.A. 2A:50-56c(11); see also US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 472 (2012).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION