Opinion
DOCKET NO. A-0872-12T2 DOCKET NO. A-1211-12T2
01-17-2014
FIRST EQUITY ASSETS II, LLC, Plaintiff-Respondent, v. MAROT SAMAY and Z. LANCE SAMAY, ESQ., Defendants-Appellants.
Joshua Denbeaux argued the cause for appellant Marot Samay (A-0872-12) (Denbeaux & Denbeaux, attorneys; Adam Deutsch and Mr. Denbeaux, on the brief). Z. Lance Samay, appellant, argued the cause pro se. Jeffrey R. Kuschner argued the cause for respondent (A-0872-12 and A-1211-12) (Jeffrey R. Kuschner, P.C., attorney; Mr. Kuschner and Steven J. Zweig, on the briefs).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Hayden, and Rothstadt.
On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F-14854-09.
Joshua Denbeaux argued the cause for appellant Marot Samay (A-0872-12) (Denbeaux & Denbeaux, attorneys; Adam Deutsch and Mr. Denbeaux, on the brief).
Z. Lance Samay, appellant, argued the cause pro se.
Jeffrey R. Kuschner argued the cause for respondent (A-0872-12 and A-1211-12) (Jeffrey R. Kuschner, P.C., attorney; Mr. Kuschner and Steven J. Zweig, on the briefs). PER CURIAM
Defendants, Marot Samay ("Marot"), a homeowner, and his brother, Z. Lance Samay, Esq. ("Lance"), the property's second mortgagee, appeal from the trial court's orders granting summary judgment and entering a final judgment of foreclosure. In support of their separate appeals which we consolidate solely for purposes of this opinion, they argue that plaintiff did not have standing to maintain the foreclosure action, because the original mortgagee did not have possession of the original note ("the Note") at the time the complaint was filed. They argue further that Marot properly exercised his right to rescind the original loan pursuant to the Truth-in-Lending Act ("TILA"), 15 U.S.C.A. 1635, and Regulation Z of TILA, 12, C.F.R. 226.23(d)(1). They further maintain that the rescission extinguished plaintiff's interest and elevated Lance's position to that of first mortgagee, even though Marot could not repay the original loan principal to plaintiff, less any credits to which he might be entitled. Finally, they argue that First Equity failed to submit the required information that would support the entry of a final judgment.
We address the Samay brothers' appeals in one opinion for convenience. To avoid confusion, we use their first names. We intend no disrespect by this informality.
After considering the applicable legal principles, we reject each of these arguments and affirm essentially for the reasons stated by Judge Deanne Wilson in her March 30, 2012 oral opinion granting summary judgment.
I
The parties do not dispute the material facts, but disagree as to the legal effect of those facts on their respective interests in the subject property, and plaintiff's entitlement to any relief.
On January 30, 2007, Marot closed a mortgage loan on his home in Chester, executing a Note and Mortgage in the amount of $322,000.00 in favor of Mortgage Electronic Registration Systems, Inc. ("MERS"), as nominee for Marot's lender, Castle Point. The Note had a thirty-year repayment term, with monthly payments to begin on April 1, 2007.
Previously, on January 24, 2007 — the originally scheduled closing date — Marot signed and dated a copy of a Notice of Right to Cancel the transaction. Later, at the actual closing, Marot again acknowledged his "receipt of two . . . completed copies of th[e] notice of right to cancel" by signing and dating at least one copy of the Notice. Marot was also provided a third copy of the Notice, dated January 30, 2007, that he did not sign.
Approximately one week after the closing, on February 6, 2007, Marot executed a second mortgage in the amount of $140,000, in favor of Lance.
At the time of recording, the Morris County clerk "erroneously recorded" this second mortgage as the first mortgage. This mistake was later corrected on December 3, 2007, when Lance and Marot signed a notice of subordination explicitly stating that the mortgage in favor of Lance was "subordinate and inferior only in priority to the new first mortgage, of which Castle Point is the mortgagee."
On November 29, 2007, MERS assigned the Note and Mortgage to GRP Loan L.L.C. ("GRP"). Barbara Neale and Marco Villagran both executed the assignment of mortgage from MERS to GRP. They were both employees of Select Portfolio Serving, Inc. (SPS), which was a member of MERS, and they had the authority to sign the assignment document. On that same day, pursuant to the terms of the initial transfer between MERS/Castle Point and GRP, Vice President/Chief Financial Officer of Castle Point, Douglas Hanke, endorsed the Note, writing "WITHOUT RECOURSE" in the "PAY TO THE ORDER OF" section of the instrument.
On July 1, 2008, Marot stopped making monthly payments toward the Note. As a result, on March 20, 2009, GRP filed a foreclosure complaint, seeking payment of the balance with interest and costs, and possession of the mortgaged property. The complaint named Marot as GRP's mortgagor and Lance as the second mortgagee.
In response to the complaint, Marot initially sent GRP a "Notice of Rescission." According to that notice, because Castle Point failed to "deliver" to him two copies of the "Notice to Cancel" required by TILA, Marot was entitled to exercise his right to rescind.
Ultimately, by October 2009, Marot also filed an Answer contesting GRP's right to foreclose. Lance also filed a contesting answer to the Complaint. Both asserted Marot's exercise of his right to rescind as a defense to GRP's complaint.
After the parties filed their pleadings, the subject Note and Mortgage were assigned several more times, thereby requiring that the pending complaint be amended to reflect the new mortgagees. First, on October 26, 2009, GRP assigned the Note and Mortgage to Kondaur Capital Corporation ("Kondaur"). Robert Farrington, Esq. signed the assignment and accompanying allonge, which included the terms "Pay to the Order of: KONDAUR CAPITAL CORPORATION without recourse, representation or warranty." He did so on behalf of GRP, in his capacity as corporate secretary, and certified that he was authorized to do so. As a result, on March 12, 2010, Kondaur filed a second amended complaint as the new plaintiff.
Second, on September 21, 2010, Kondaur assigned the Note and Mortgage to First Equity Loan Services, LLC ("FEL"). Janice Ramocinski signed this assignment, and was authorized to do so in her capacity as chief operating officer of Kondaur. Bill Nguyen witnessed Ramocinski's execution of the assignment, and he acknowledged her signature.
Third, on October 18, 2010, FEL assigned its interests to plaintiff First Equity Assets II, L.L.C. ("First Equity") — an entity related to, but separate from, FEL. Jarrod Fennimore was "authorized to and did execute th[e] instrument as Managing Member[]" of both FEL and First Equity.
As to the custody of the Note itself, upon the November 29, 2007 assignment to GRP, Wells Fargo Bank ("Wells Fargo") held the Note "as custodian for GRP." The Note remained with Wells Fargo "from November 19, 2007, to August 28, 2009, when it was released to GRP . . . upon its request." On August 31, 2009, the Note was sent to GRP's attorney Frank J. Martone, "to hold as bailee." As of January 19, 2012, First Equity maintained physical custody of the Note.
Wells Fargo vice president/client services consultant Bradley D. Johnson, who was employed as a vice president and a client services consultant at Wells Fargo, confirmed the custodial arrangement in an affidavit.
In 2011, the parties filed various cross motions for summary judgment against each other. In connection with those motions, the parties appeared before Judge Wilson on January 19 and March 30, 2012. In relevant part, the parties first argued the issue of whether First Equity had standing to enforce the Note it possessed, in light of the assignments that occurred previously. The Samays also questioned the authenticity of the assignment between First Equity and FEL, as the notary date preceded the date of execution that was printed on the document. The parties then argued the issue of whether Marot was entitled to rescission of the Note, because Marot did not simultaneously receive two copies of his Notice of Right to Cancel, pursuant to TILA requirements. Judge Wilson adjourned oral argument to further address the rescission issue, and to allow First Equity to produce copies of the documents referred to in the supporting certifications relating to the Note's chain of title.
On March 30, the parties re-appeared in court for continued oral argument. Judge Wilson was ultimately satisfied that First Equity had standing to maintain the present action. Through its original certifications and subsequently-provided supporting documents, Judge Wilson found First Equity established chain of title for the Note, and that GRP had physical possession of the Note — albeit through its custodian Wells Fargo — when the complaint was first filed.
Judge Wilson then focused on Marot's claim for rescission and his inability to tender the outstanding balance on his loan. According to the judge, while there was a technical violation of TILA vis-à-vis Marot not receiving every copy of the Notice to Cancel to which he was entitled, his right to rescission was contingent upon his repaying the balance of the loan in accordance with the Court's decision in U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449 (2012). Because Marot could not make that payment, the judge granted summary judgment in favor of First Equity, striking defendants' answers and referring the case back to the Foreclosure Unit "to be processed as an uncontested foreclosure."
On July 12, 2012, First Equity moved for entry of final judgment, which Judge Paul Innes entered on September 28, 2012. Marot was ordered to satisfy his obligation to First Equity in the amount of $484,253.73 plus interest and fees, through the sale of the mortgaged property.
Marot filed his appeal from the September 28, 2012 order. Lance appealed both the March 30 and September 28, 2012 orders.
II
On appeal from an order granting summary judgment, this court "review[s] the trial court's legal assessment de novo, and . . . do[es] not accord any special deference to the court's conclusions." NAACP of Camden Cnty. E. v. Foulke Mgmt. Corp., 421 N.J. Super. 404, 430 (App. Div. 2011). "[D]e novo review is especially appropriate in evaluating a trial court's ruling on summary judgment," ibid., as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law, see Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations).
Accordingly, this court "appl[ies] the same standard [as the trial court] when reviewing summary judgment orders," Paradise Park Homeowners Association, Inc. v. Riverdale Management Associates, 404 N.J. Super. 309, 336 (App. Div. 2008), and we abide by certain fundamental principles applicable to summary judgment motions. Summary judgment is appropriate where the evidence in the record "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) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)). We too must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 523; see also R. 4:46-2(c); Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010) (Where an "appeal arises in the context of a summary judgment," the reviewing court is "obliged to view the facts in the light most favorable to the non-moving party.").
The court must grant summary judgment if it ultimately determines "that there is no genuine issue as to any material fact challenged," and that a rational factfinder could rightly return a verdict for the movant in light of the evidence presented. R. 4:46-2. Therefore, under the plain language of Rule 4:46-2, "a court should deny a summary judgment motion only where the party opposing the motion has come forward with evidence that creates a 'genuine issue as to any material fact challenged[.]'" Brill, supra, 142 N.J. at 529 (quoting R. 4:46-2). Accordingly, issues of fact that are merely "immaterial or of an insubstantial nature" do not preclude the granting of summary judgment. Ibid. (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)).
Applying this standard here, we disagree with the Samays' contention that Judge Wilson improperly found as a matter of law that First Equity had standing because the chain of custody had not been established. Judge Wilson clearly and thoroughly addressed standing after considering First Equity's evidential submissions. The Samays never contested these submissions, other than to claim they were legally inadequate to support First Equity's right to foreclosure.
The right to foreclose is an equitable right inherent in a mortgage, triggered by a borrower's failure to comply with the terms and conditions of the associated loan. See S.D. Walker, Inc. v. Brigantine Beach Hotel Corp., 44 N.J. Super. 193, 202 (Ch. Div. 1957) ("Ordinarily, it is not necessary that a mortgagee give notice of default before he can institute foreclosure proceedings; the institution of the action is in itself sufficient notice of election to foreclose."). The mortgagee has the right to insist upon strict observance of the obligations that are contractually owed to it, including timely payment. Kaminski v. London Pub, Inc., 123 N.J. Super. 112, 116 (App. Div. 1973). To obtain relief in a mortgage foreclosure action, the mortgagee (or its successor in interest) must establish that (1) the mortgage and loan documents are valid; (2) the mortgage loan is in default; and (3) it has a contractual right to foreclose in light of the default. See, e.g., Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542, 545 (App. Div. 1994).
"As a general proposition, 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)). Unless such ownership or control is shown, a "plaintiff lacks standing to proceed with the foreclosure action and the complaint must be dismissed." Ibid. A mortgagee lacks standing when it cannot demonstrate, at the time it filed the original foreclosure complaint, that it fell within any of the "three categories of persons entitled to enforce negotiable instruments" as described in Article III of the Uniform Commercial Code (UCC), N.J.S.A. 12A:3-101 to -605. Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 223 (App. Div. 2011). The three categories of standing include "the holder of the instrument, a non-holder in possession of the instrument who has the rights of the holder, or a person not in possession of the instrument who is entitled to enforce the instrument." N.J.S.A. 12A:3-301.
The Samays insisted that First Equity could not maintain this action because GRP lacked standing which is determined by "the party that holds the note . . . on the date that the complaint [is] filed." They challenged the chain of title going back to GRP as the original plaintiff, arguing that "the[] certifications d[id] not establish the facts that [we]re asserted within and that the[] facts [we]re inadmissible," i.e., that First Equity had not provided appropriate evidence of the relationship between GRP and Wells Fargo. Judge Wilson disagreed, referred to the parties' certifications and affidavits — particularly, those by Farrington of GRP, and Johnson of Wells Fargo — as evidence of GRP's possession when it filed the complaint, and concluded that "there is a chain of title all the way through from the initial mortgagee right up to [First Equity]."
In response, the Samays allege that Judge Wilson failed to view the evidence presented in "a light most favorable to the non-moving party," Brill, supra, 142 N.J. at 523, because the judge "inappropriately drew an inference and concluded as fact that [p]laintiff's possession of the promissory note on January 19 . . . was sufficient proof that possession of the promissory note existed by the original plaintiff when the complaint was filed in 2009." These arguments are without merit, and we find no evidence in the record or legal justification to disagree with Judge Wilson's conclusion.
In Ford, supra, we held that a trial court may rely on certifications based on personal knowledge as proof of the authenticity of an assignment of a Note and its possession at the time a foreclosure complaint is filed. Ford, supra, 418 N.J. Super. at 599. In this case, each of the assignments was supported by certifications and affidavits by individuals who were either involved in the transaction itself, or had the opportunity to review the original documents and to then attest to the relevant assignment. To be sure, Judge Wilson (despite believing it to be "extraneous") ordered First Equity to submit supplemental certifications to ensure that each assignment had been properly authenticated. She reviewed each supplemental document and correctly concluded that First Equity had standing to maintain the action. She correctly found First Equity's predecessors each had physical possession of both the Note and the Castle Point mortgage when the complaint and later amended complaints were filed, and that no "countervailing evidence" had been offered by the Samays.
The certifications filed in support of First Equity's motion established that GRP was a holder of the Note when it filed the foreclosure complaint, and each of its transferees thereafter had the right to maintain and pursue the foreclosure action. Ibid. ("Transfer of an instrument occurs 'when it is delivered by a person other than its issuer for the purpose of giving to the person receiving delivery the right to enforce the instrument.'" (quoting N.J.S.A. 12A:3-203(a))). "Such a delivery, 'whether or not the transfer is a negotiation, vests in the transferee any right of the transferor to enforce the instrument.'" Ibid. (quoting N.J.S.A. 12A:3-203(b)).
The Samays also challenged GRP's right to file the action, because Wells Fargo (and not GRP) had possession of the Note as a custodian. Judge Wilson disagreed again and found that the certifications filed by Wells Fargo were sufficient to establish the custodial arrangement which left GRP in control of the Note, including control of the Note's enforcement. Initially quoting from the affidavit filed by Bradly D. Johnson of Wells Fargo, Judge Wilson noted:
"In the course of its business[,] Wells Fargo acted as custodian of the original mortgage note[."] And there may not be a case that says that somebody can be a custodian of a note, except that you and I both know that this happens frequently because there are document storage and retention facilities that routinely[,] under contract[,] take these documents, organize them and put them some place for storage so that they can be procured at the appropriate time. But if you hold it as custodian for someone, . . . the entity who hires you to store the agreement, which is essentially what happens in these cases, . . . [is] the owner of the note and they are in possession of it[.] [T]hey have control of it, they can denominate who is going to take care of it for them. And I certainly don't expect this bank across the street to hold their notes in their safe across the street when they loan money.
The Samays never disputed that Wells Fargo acted as a custodian, thereby correctly conceding that GRP who controlled the Note had the right to possession and to seek its enforcement. There being no dispute as to any material fact relating to First Equity's entitlement to enforce the Note, Judge Wilson correctly granted summary judgment in favor of the First Equity as to its right to maintain the present action. Ford, supra, 418 N.J. Super. at 599.
III
The Samays also argue that the trial court erred in holding that Marot could not rescind his loan because he was unable to tender the balance owed, less any credits due to him; and this was notwithstanding the fact that Marot had received just one physical copy of a notice to cancel, in violation of the disclosure provisions under TILA. Lance alleges that the trial judge erred in interpreting TILA's "plain, clear, and unequivocal statutory and regulatory mandates regarding rescission." Furthermore, according to Lance, even if Marot can't repay the loan as part of a recession, Lance is entitled to the extinguishment of First Equity's interest as a first mortgagee because Marot has the right to rescind. Again, we disagree. Judge Wilson properly applied the holding in Guillaume, supra, that requires re-payment as a condition to rescission under the circumstances presented here. Guillaume, supra, 209 N.J. at 458.
The purpose of TILA is to "assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit." 15 U.S.C.A. § 1601(a). The statute "requires that consumers be provided 'material disclosures'", Guillaume, supra, 209 N.J. at at 480-81 (quoting 15 U.S.C.A. § 1601(a)), and a creditor must "clearly and conspicuously disclose . . . to any obligor in a transaction subject to [rescission] the rights of the obligor" to exercise that right. 15 U.S.C.A. § 1635(a).
Specifically, TILA "provides for the remedy of rescission." Guillaume, 209 N.J. at 481. "[I]n a transaction subject to rescission, a creditor shall deliver two copies of the notice of the right to rescind to each consumer entitled to rescind." Truth in Lending (Regulation Z), 12 C.F.R. 226.23(b)(1). "If the required notice or material disclosures are not delivered, the right to rescind shall expire 3 years after consummation, upon transfer of all of the consumer's interest in the property, or upon sale of the property, whichever occurs first." 12 C.F.R. 226.23(a)(3). When exercising the right to rescind, "the consumer shall notify the creditor of the rescission by mail . . . or other means of written communication." 12 C.F.R. 226.23(a)(2).
"Rescission essentially restores the status quo ante; the creditor terminates its security interest and returns any monies paid by the debtor in exchange for the latter's return of all disbursed funds or property interests." Guillaume, supra 209 N.J. at 481 (quoting McKenna v. First Horizon Home Loan Corp., 475 F.3d 418, 421 (1st Cir. 2007)). "Although the statutory language calls for rescission by the lender prior to the homeowner's tender of the balance of the loan, . . . TILA 'need not be interpreted literally as always requiring the creditor to remove its security interest prior to the borrower's tender of proceeds.'" Guillaume, supra, 209 N.J. at 481 (quoting Yamamoto v. Bank of N.Y., 329 F.3d 1167, 1173 (9th Cir. 2003)).
In Guillaume, supra, the Court held that "a foreclosure court has the discretion to deny rescission under TILA if the defendant cannot tender the balance of his or her loan." Guillaume, supra, 209 N.J. at 482-83. Here, Judge Wilson properly exercised that discretion, holding that Guillaume permitted the court to require the tender of the outstanding loan amount contemporaneously with the extinguishment of First Equity's security interest in Marot's home. After considering the Supreme Court's decision, Castle Point's limited violation of TILA, and the equities between the parties, Judge Wilson clearly explained:
Well, I think that the January 24th, 2007[,] document is significant for one reason only. And that it is an additional document that put Marot on notice that he had a right to rescind and he acknowledged receipt of that document. . . . The 24th closing did not take place. I understand that. But these documents are substantively all the same and he having signed one on or about January 24th had to know that he had a right to cancel. Then when the closing actually took place he received at least one additional notice of right to cancel. And what I'm saying that from the two specimens . . . of the notice of right to cancel[,] it certainly appears that there were [two] such documents that were at the closing on January 30th.
TILA has set a threshold which is pretty low, which indicates that . . . they mean business. But for me to sit here and say I am not going to follow a New Jersey Supreme Court opinion that is exactly on point and less than three months old . . . would really be completely inappropriate.
. . . [R]escission is not an available remedy here because tender cannot be made. There hasn't been a mortgage payment made on this house in many years. And [Marot], as unfortunate as his situation may be, . . . is not in the same situation as the Guillaumes. It is a wholly different issue that they are in as opposed to what [Marot] is, unfortunately, in. But the failure to send, even assuming that it was a failure to send a second copy informing the borrower of a right of which he was fully aware[,] to allow rescission for that seems to me to be inappropriate.
And "upon" is clear in the statute. It means "upon." Vitiate the security interest. Tender me the money. It is clear in [Guillaume], and the vast majority of federal and court cases that have decided this that tender is to be simultaneous.
Marot concedes that he is unable to tender the balance of the loan. As a result, under TILA, his attempt to rescind is invalid.
The mere right to a rescission does not guaranty its award, because underlying such relief is the court's ability to place the parties in the same position they occupied before the transaction. "The equitable goal of rescission under TILA is to restore the parties to the 'status quo ante'," Am. Mortg. Network, Inc. v. Shelton, 486 F.3d 815, 820-21 (4th Cir. 2007), which requires that "the creditor terminate[] its security interest and return[] any monies paid by the debtor in exchange for the latter's return of all disbursed funds or property interests," Guillaume, 209 N.J. at 481 (quoting McKenna, supra, 475 F.3d at 421 (1st Cir. 2007) (citing 15 U.S.C. § 1635(b))). Thus, where the borrower cannot tender the funds paid to him or on his behalf, less any credits to which he may be entitled, that equitable goal cannot be achieved. Judge Wilson properly exercised her discretion here where Marot could not tender those amounts.
IV
The Samays also allege that the trial court erred in finding that the mortgage assignment from FEL to First Equity was valid, despite a discrepancy between the notary date and the date of execution. The assignment was evidenced by a document signed by Fenimore, a then-managing member at each entity. The document contained a typewritten date, "October 18, 2010." However, the acknowledgment of the notary public contained a handwritten date, "October 15, 2010," above the notary's live signature. Defendants allege that this discrepancy in dates evinced a fraudulent assignment, as it implied that the document was executed after it was notarized.
Indeed, as discussed earlier, documents "relied upon in support of [a] motion for summary judgment" must be "properly authenticated." Ford, supra, 418 N.J. Super. at 599. "A certification will support the grant of summary judgment only if the material facts alleged therein are based . . . on 'personal knowledge.'" Ibid. To this end, First Equity submitted a certification by Fenimore, detailing the chain of assignments and custodial history of the Castle Point mortgage and, in each instance, referring to the corresponding supporting document(s). His certification did not allege his personal knowledge that plaintiff held the note and the mortgage. However, Fenimore signed both the assignment document and his certification, thus evidencing his personal knowledge of the assignment.
It is unclear from the record if the attached copies were individually certified.
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Additionally, while Fenimore did not address the different dates for execution and notary in his certification, Judge Wilson found the discrepancy to be immaterial, stating
I have to tell you that if the notary had October 20th[,] I would be a little more concerned because it would be an indication that the person really didn't come before her and that they signed the assignment and they executed the assignment and then sent a runner someplace to have it notarized. But that's not what happened here. It was notarized on October 15th. It was probably signed on the same day. . . . This is an assignment. This is an assignment of an interest in a mortgage. And the fact that the . . . notarization . . . t[ook] place on October 15th and . . . is handwritten in, as it usually is on a notarization, and the document itself has as typed that it was executed on October 18th does not change the fact that an assignment was made. And I'm ruling that . . . it's not a material error that invalidates the assignment. And nobody who has an interest in the assignment is saying that the assignment didn't happen. If the assignor was saying this didn't really happen, . . . that would be something to be concerned about.We agree with Judge Wilson. Fenimore's certification does not explicitly state that he had personal knowledge of the assignment, nor does it address the discrepancy in dates. However, his signature on the assignment document is undisputed, and therefore implies that he was present at the time of the assignment.
V
The Samays finally argue that First Equity's application for final judgment did not comply with the requirements of Rule 4:64-2. Our review of the record indicates otherwise.
In an uncontested application for judgment, the application "shall be accompanied by proofs as required by R[ule] 4:64-2." R. 4:64-1(d)(2). The items of proof include "the original mortgage, evidence of indebtedness, assignments, claim of lien . . . , and any other original document upon which the claim is based." R. 4:64-2(a). Certified copies of these documents are also acceptable. Ibid. Importantly, such proofs "may be submitted by affidavit, unless the court otherwise requires." Ibid.
On appeal, First Equity provides a certification by attorney Michael Alfieri, who prepared and filed its application for final judgment. Alfieri certified that on July 11, 2012, he filed with the Office of Foreclosure the following documents:
a. Certified true copy of the Mortgage, including . . . Legal Description of the mortgaged property and Adjustable Rate Rider;
b. Certified true copy of Assignment of Mortgage from MERS as nominee for mortgagee Castle Point Mortgage to GRP Loan, LLC;
c. Certified true copy of Assignment of Mortgage from GRP Loan, LLC[,] to Kondaur Capital Corporation;
d. Certified true copy of Assignment of Mortgage from Kondaur Capital Corporation to First Equity Loan Services, LLC;
e. Certified true copy of Assignment of Mortgage from First Equity Loan Services[,] LLC[,] to First Equity Assets II LLC;
f. Certified true copy of Adjustable Rate Note.
For their part, the Samays allege but offer no evidence that First Equity did not comply with the requirements of Rule 4:64-2 with the documents it submitted in support of its application. We, however, are satisfied that First Equity satisfied the rule's requirements and was entitled to the entry of the Final Judgment under appeal.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION