DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. EDWARD EMOND (F-000646-16, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: December 24, 2018
• Docket: A-3556-16T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3556-16T4

DEUTSCHE BANK NATIONAL TRUST COMPANY as Trustee For IndyMac INDX Mortgage Loan Trust 2005-AR18 Mortgage Pass-Through Certificates Series 2005-AR18,

Plaintiff-Respondent,

v.

EDWARD EMOND, a/k/a EDWARD A. EMOND, and PAULA EMOND, a/k/a PAULA M. EMOND,

Defendants-Appellants,

and

TD BANK, NA, f/k/a Commerce Bank, NA,

Defendant.

Submitted November 14, 2018 – Decided December 24, 2018

Before Judges Currier and Mayer. On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F- 000646-16.

Edward Emond and Paula Emond, appellants pro se.

McGlinchey Stafford PLLC, and RAS Citron, LLC, attorneys for respondent (Ashley R. Newman and Victor L. Matthews, on the brief).

PER CURIAM

In this residential foreclosure action, defendants Edward and Paula Emond

appeal the September 30, 2016 order granting summary judgment to plaintiff

Deutsche Bank National Trust Company. An uncontested order for final

judgment was entered in February 2017. After a review of defendants'

contentions in light of the record and applicable legal principles, we affirm.

In 2005, defendants executed a note to IndyMac Bank, F.S.B. (IndyMac)

for $384,000. The note was secured by a mortgage, also held by IndyMac. In

October 2011, defendants defaulted on their obligations under the note and

mortgage. In 2012, IndyMac assigned the mortgage to plaintiff. 1

1 Mortgage Electronic Registration Systems, Inc. (MERS), solely as nominee for IndyMac, assigned the mortgage to plaintiff, as Trustee of IndyMac INDX, Mortgage Loan Trust 2005-AR18, Mortgage Pass-Through Certificates, Series 2005-AR18. A-3556-16T4 2 In January 2016, plaintiff filed a complaint for foreclosure. Defendants

filed a contesting answer with affirmative defenses, including allegations

challenging plaintiff's standing and a claim defendants were not provided with

the Notice of Intent to Foreclose (NOI).

Plaintiff moved for summary judgment, and attached copies of the original

note and the mortgage, assignment of the mortgage, NOI, and a certification

prepared by Albert Gruber.2 Defendants opposed the motion and cross-moved

to dismiss the complaint, asserting plaintiff lacked standing to bring the

foreclosure action.

In a written statement of reasons and order issued September 30, 2016,

the trial judge granted plaintiff's motion for summary judgment and denied

defendants' cross-motion. The trial judge found plaintiff established a prima

facie right to foreclose on the property and rejected defendants' affirmative

defenses. Further, the trial judge determined plaintiff was "the holder of the

note and [had] standing to bring this action."

On appeal, defendants contend the trial judge erred: (1) in finding the 2012

assignment was valid as IndyMac's nominee, MERS, lacked intent to assign

2 Gruber is a contract management coordinator for Ocwen Loan Servicing, LLC, plaintiff's mortgage loan servicer. Gruber certified plaintiff acquired the mortgage and note prior to filing the foreclosure action. A-3556-16T4 3 IndyMac's rights in the mortgage to plaintiff; (2) in determining plaintiff had

standing to bring the foreclosure action as "[p]laintiff failed to establish that it

acquired ownership or control of the original note"; and (3) in relying on

Gruber's certification to determine defendants defaulted on their mortgage. We

are unpersuaded by these arguments.

We review an order granting summary judgment de novo and a trial court's

ruling is owed no special deference. Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016).

"A valid assignment must contain evidence of the intent to transfer one's

rights, and 'the subject matter of the assignment must be described sufficiently

to make it capable of being readily identified.'" K. Woodmere Assocs., L.P. v.

Menk Corp., 316 N.J. Super. 306, 314 (App. Div. 1998) (quoting 3 Williston on

Contracts § 404, at 4 (3d ed. Jaeger 1957)).

Here, we are satisfied MERS, as nominee, properly assigned IndyMac's

mortgage and note to plaintiff on February 16, 2012. An agent of MERS

executed the assignment, demonstrating intent to transfer. See N.J.S.A. 46:14-

4.2. In addition, the subject matter of the assignment is "readily identified"

because it includes the property's address, the amount loaned to defendants, and

where the mortgage was recorded. See Menk Corp., 316 N.J. Super. at 314.

A-3556-16T4 4 In addressing defendants' second argument, it is well-established that in

order to have standing in a foreclosure action, the "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)). Standing is

conferred by "either possession of the note or an assignment of the mortgage

that predated the original complaint." Deutsche Bank Tr. Co. Ams. v. Angeles,

428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Nat'l Tr. Co.

v. Mitchell, 422 N.J. Super. 214, 216 (App. Div. 2011)).

Here, we are satisfied plaintiff established a prima facie case for

foreclosure. Plaintiff clearly demonstrated its standing to foreclose on the

property because the assignment of the mortgage from IndyMac predated the

January 2016 filing of the foreclosure complaint. Upon that assignment, and

underlying transfer of possession, plaintiff became the holder of the instrument.

Additionally, plaintiff provided the original note and NOI to the trial judge as

exhibits.

Defendants' remaining arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3556-16T4 5