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U.S. Bank Tr. v. Thomas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Oct 11, 2018
DOCKET NO. A-3416-16T2 (App. Div. Oct. 11, 2018)

Opinion

DOCKET NO. A-3416-16T2

10-11-2018

U.S. BANK TRUST, N.A., as Trustee for LSF9 Master Participation Trust, Plaintiff-Respondent, v. LAMONT D. THOMAS, Defendant-Appellant, and MR. or MRS. THOMAS, Spouse or Civil Partner of Lamont D. Thomas, and ATLANTIC COUNTY IMPROVEMENT AUTHORITY, Defendants.

Lamont D. Thomas, appellant pro se. KML Law Group, PC, attorneys for respondent (Caitlin M. Donnelly, on the briefs).


NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3. Before Judges Moynihan and Natali. On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. F-039199-15. Lamont D. Thomas, appellant pro se. KML Law Group, PC, attorneys for respondent (Caitlin M. Donnelly, on the briefs). PER CURIAM

This residential foreclosure action returns to us following a remand directed by our previous opinion, U.S. Bank Trust, N.A. v. Lamont D. Thomas, No. A-3416-16 (App. Div. May 30, 2018), where we retained jurisdiction and ordered the trial court to make additional findings as to whether a notice of intention to foreclose (NOI) was sent by plaintiff U.S. Bank, N.A., as trustee for LSF9 Master Participation Trust, to defendant Lamont D. Thomas in accordance with the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -73. Having received and considered the trial court's August 1, 2018 opinion, we affirm the September 23, 2016 order granting summary judgment in plaintiff's favor.

We incorporate by reference the factual and procedural history as set forth in our prior opinion. By way of brief overview, on May 6, 2010, defendant executed a $121,794 promissory note to First Mutual Corp. and a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for First Mutual. The mortgage was assigned from MERS to Bank of America, N.A., to Lakeview Loan Servicing, LLC, to the Secretary of Housing and Urban Development, and then to U.S. Bank, N.A. Defendant defaulted on the loan on May 1, 2012, and an NOI was sent to defendant on September 20, 2013. The NOI was sent by M&T Bank as the loan servicer for Lakeview, the holder of the assignment at the time.

Plaintiff filed a foreclosure complaint on December 4, 2015, and defendant filed a contesting answer with affirmative defenses on February 8, 2016. The trial court issued a September 23, 2016 order granting plaintiff's motion for summary judgment. Though the court had not received opposition to plaintiff's application, the trial court marked the motion as "opposed" to reflect defendant's appearance at the motion hearing.

Defendant appealed the September 23, 2016 order contesting plaintiff's standing, the validity of the assignments and the NOI, and plaintiff's compliance with the FFA and the Truth in Lending Act, 15 U.S.C. §§ 1601 to 1667f. In our May 30, 2018 opinion, we affirmed the trial court's finding that plaintiff had standing to bring the foreclosure action and that plaintiff established a prima facie case for foreclosure. Because the record was devoid of factual findings with respect to plaintiff's claim that it sent an NOI to defendant in accordance with the FFA, we remanded the matter to the trial court to make additional factual findings.

The trial court issued additional findings on August 1, 2018. The court found that the NOI was served upon defendant in accordance with N.J.S.A. 2A:50-56 because it was served "at the address of the property which was the subject of this foreclosure" and, thus, reasonably calculated to give defendant notice of the pendency of the action. Additionally, the court found that that plaintiff's reliance on the NOI sent in 2013 complied with the FFA:

[I]t was reasonable for the [p]laintiff to rely on the previous NOI sent to [d]efendant prior to the initiation of this foreclosure action. Despite that a prior [n]ote holder issued the NOI on September 20, 2013, the [FFA] is silent as to whether additional Notices of Intent to Foreclose must be sent when subsequent assignments of the [n]ote and [m]ortgage are made. The clearly stated intent of N.J.S.A. [] 2A:50-56[] is to make the debtor aware of the name and address of the lender. The [c]ourt finds that the NOI sent on September [2]0, 2013 accomplished this, and thus [p]laintiff's reliance on the NOI was appropriate under the circumstances.

The parties submitted supplemental briefing following the trial court's findings. Plaintiff contends its NOI was compliant with the FFA. Defendant disagrees and maintains plaintiff was obligated to serve a new NOI and was not permitted to rely upon the September 20, 2013 NOI sent on behalf of Lakeview. For the reasons detailed below, we affirm the September 23, 2016 order.

The FFA requires a residential mortgage lender to send an NOI to a debtor prior to the commencement of foreclosure proceedings. N.J.S.A. 2A:50-56(a). In relevant part, the NOI shall "clearly and conspicuously" state,

the name and address of the lender and the telephone number of a representative of the lender whom the debtor may contact if the debtor disagrees with the lender's assertion that a default has occurred or the correctness of the mortgage lender's calculation of the amount required to cure the default.

[N.J.S.A. 2A:50-56(c)(11).]
As we recognized in our May 30, 2018 opinion, the purpose of a NOI is to provide "timely and clear notice to homeowners that immediate action is necessary to forestall foreclosure." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 470 (2012). It is the "identity of the lender — the prospective plaintiff — [that] is a crucial aspect of reasonable notice of a foreclosure claim." Id. at 474.

It is undisputed that plaintiff did not serve defendant with a new NOI identifying itself as the "prospective plaintiff" and entity currently holding the mortgage. Instead, it relied upon the NOI sent to defendant in 2013 by M&T Bank. The FFA is silent as to whether a subsequent assignee lender may rely upon an NOI sent by a predecessor lender.

Defendant's argument that plaintiff's NOI is defective and, accordingly, he had a valid defense to the foreclosure complaint completely ignores our "discretion to fashion equitable remedies" absent legislative direction. Brenner v. Berkowitz, 134 N.J. 488, 514 (1993). Here, we deem it both fair and equitable to conclude under the unique factual circumstances of this case that plaintiff's reliance upon the NOI served by M&T Bank was appropriate.

Foreclosure is a "discretionary remedy." Brunswick Bank & Tr. v. Heln Mgmt. LLC, 453 N.J. Super. 324, 330 (App. Div. 2018). "Because the pursuit of that remedy summons the court's equity jurisdiction, the court may, through the imposition of flexible remedies, adjust the parties' rights, with regard to the facts, to achieve a fair and just result." Id. at 330-31. "[E]quity must be applied to plaintiffs as well as defendants" in foreclosure matters. Deutsche Bank Tr. Co. v. Angeles, 428 N.J. Super. 315, 320 (App. Div. 2012). Further, the equitable remedies may be tailored to "allow [the] relief to be fashioned directly to redress the statutory violations shown." Brenner, 134 N.J. at 514. "A trial court adjudicating a foreclosure complaint in which the [NOI] does not comply with N.J.S.A. 2A:50-56(c)(11) may dismiss the action without prejudice, order the service of a corrected notice, or impose another remedy appropriate to the circumstances of the case." Ibid.

Here, the NOI was served more than thirty days prior to the commencement of any foreclosure proceedings at the subject property, see N.J.S.A. 2A:50-56(a) to (b), and was reasonably calculated to give defendant notice of the impending foreclosure action and an opportunity to object to his default. The NOI also listed the then current lender (Lakeview) in accordance with N.J.S.A. 2A:50-56(c)(11). We have also previously concluded that plaintiff has standing to foreclose and established a prima facie foreclosure case against defendant. Defendant does not dispute that he defaulted on his mortgage obligations.

Further, following defendant's default and receipt of the NOI in 2013, there was nearly a two-year period of inactivity prior to plaintiff's filing of the foreclosure complaint where defendant failed to attempt to cure his default or negotiate his payments under the note and mortgage. The record does not support any claim that defendant was hindered from curing or negotiating his default during this period or at any time thereafter when he was aware that plaintiff held a valid assignment. We therefore conclude that the NOI did not pose a barrier to defendant curing, or attempting to cure, his default. Defendant had ample notice of an impending foreclosure action and simply failed to act.

To the extent not addressed, defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

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

U.S. Bank Tr. v. Thomas

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
Oct 11, 2018
DOCKET NO. A-3416-16T2 (App. Div. Oct. 11, 2018)
Case details for

U.S. Bank Tr. v. Thomas

Case Details

Full title:U.S. BANK TRUST, N.A., as Trustee for LSF9 Master Participation Trust…

Court:SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Oct 11, 2018

Citations

DOCKET NO. A-3416-16T2 (App. Div. Oct. 11, 2018)