Opinion
DOCKET NO. A-4511-13T1
10-22-2015
WELLS FARGO BANK, NA, as CERTIFICATE TRUSTEE (NOT IN ITS INDIVIDUAL CAPACITY BUT SOLELY AS CERTIFICATE TRUSTEE) IN TRUST FOR REGISTERED HOLDERS OF VNT TRUST SERIES 2010-2, Plaintiff-Respondent, v. LORI SEXTON, Defendant-Appellant, and STATE OF NEW JERSEY, Defendant.
Kevin Hanly argued the cause for appellant. Gene Mariano argued the cause for respondent (Parker McCay, P.A., attorneys; Kiera McFadden-Roan, of counsel; Stacy L. Moore, Jr., on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson. On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-13324-12. Kevin Hanly argued the cause for appellant. Gene Mariano argued the cause for respondent (Parker McCay, P.A., attorneys; Kiera McFadden-Roan, of counsel; Stacy L. Moore, Jr., on the brief). PER CURIAM
Defendant, Lori Sexton, appeals from a November 1, 2013 order granting summary judgment and striking her answer, and from the subsequent April 23, 2014 final judgment in favor of plaintiff, Wells Fargo Bank, NA, which fixed the amount owed on the mortgage premises as $166,023.32.
The underlying facts are not in dispute. Defendant admits to executing a note in 2007 that was secured by a mortgage on property she owned in Irvington. She admits to entering into a subsequent loan modification in January 2010 and to defaulting on payments for the second time in October 2010, which resulted in plaintiff filing a foreclosure complaint in July 2012. The motion judge found that Wells Fargo had standing and had proven its prima facie case for foreclosure. We affirm substantially for the reasons expressed by Judge David B. Katz in his November 1, 2013 opinion.
We note that Wells Fargo assigned the mortgage to Bayview Loan Servicing, LLC effective March 3, 2014, after Wells Fargo submitted its application for final judgment but before final judgment was granted on April 23, 2014. At oral argument, counsel for Bayview, who previously represented Wells Fargo, indicated that Wells Fargo anticipates transferring the property to Bayview at or immediately after the Sheriff's sale. --------
Two months before filing the foreclosure complaint, Wells Fargo recorded the assigned mortgage. Wells Fargo had physical possession of the note two years before filing the complaint. Thus plaintiff had standing at the time it filed the complaint. See Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (stating that standing is conferred by "either possession of the note or an assignment of the mortgage that predate[s] the original complaint") (citing Deutsche National Trust Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)).
After a thorough examination of the proofs, Judge Katz found that the chain of title provided by plaintiff was valid. Defendant attacks the certification provided by plaintiff's employee as not being within his personal knowledge, but an employee may rely on his or her knowledge of business records to establish the proofs in a foreclosure case. R. 4:64-2(c).
The "right to foreclose is an equitable right inherent in the mortgage." Chase Manhattan Mortg. Corp. v. Spina, 325 N.J. Super. 42, 50 (Ch. Div. 1998), aff'd, 325 N.J. Super. 1 (1999). The mortgagee has the right to insist upon strict observance of the obligations that are contractually owed to it, including timely payment. See Kaminski v. London Pub, Inc., 123 N.J. Super. 112, 116 (App. Div. 1973). When there is proof of execution, recording and non-payment of the note and mortgage, a mortgagee has established a prima facie right to foreclose. Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div. 1952).
There are limited defenses to foreclosure actions. A mortgagor opposing summary judgment has a duty to present facts that controvert the mortgagee's prima facie case. Spiotta v. William H. Wilson, Inc., 72 N.J. Super. 572, 581 (App. Div.), certif. denied, 37 N.J. 229 (1962). Additionally, a holder in due course may enforce the mortgage "free and clear of any personal defenses the mortgagor may have against the assignor." Carnegie Bank v. Shalleck, 256 N.J. Super. 23, 45 (1992) (citation and internal quotation marks omitted). Defendant alleged numerous defenses including that she was the victim of various types of predatory lending and fraud.
Wells Fargo certified that it took the instrument in good faith for value, but defendant questioned the proof of the "for value" requirement of a holder in due course, because plaintiff did not specify the amount of the value. See N.J.S.A. 12A:3-302 for a complete definition of a holder in due course. We know of no requirement that the precise value be specified, nor do we see the relevance of the value paid.
Judge Katz considered in depth the arguments posed by the parties and briefed by counsel. We rely on his thoughtful, detailed oral opinion.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION