DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. GWENDOLYN LYNN (F-012138-15, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 3, 2020
• Docket: A-5716-17T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5716-17T1

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR J.P. MORGAN MORTGAGE ACQUISITION TRUST 2007-CH3, ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2007-CH3,

Plaintiff-Respondent,

v.

GWENDOLYN LYNN,

Defendant-Appellant,

and

MR. LYNN, husband of Gwendolyn Lynn, CHASE BANK, USA, NA, and STATE OF NEW JERSEY,

Defendants. ____________________________

Submitted December 11, 2019 – Decided February 3, 2020

Before Judges Koblitz, Whipple and Gooden Brown. On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-012138-15.

Gwendolyn Lynn, appellant pro se.

Parker Ibrahim & Berg, LLP, attorneys for respondent (Charles W. Miller, III, Ben Z. Raindorf and Jonathan M. Etkowicz, on the brief).

PER CURIAM

In this foreclosure matter, defendant Gwendolyn Lynn appeals from four

Chancery Division orders, specifically, an October 23, 2015 order granting

summary judgment to plaintiff Deutsche Bank National Trust Company, a June

28, 2017 order again granting plaintiff summary judgment and striking

defendant's answer, a June 15, 2018 order denying defendant's motion to fix the

amount due, and a July 5, 2018 order entering final judgment of foreclosure.

We affirm.

We glean these facts from the record. On October 17, 2006, defendant

executed a thirty-year adjustable rate note in the amount of $368,000 to Chase

Bank USA, N.A. (Chase Bank). To secure payment of the note, on the same

date, defendant executed a non-purchase money mortgage to Chase Bank

encumbering property located in Maplewood. The mortgage was recorded on

November 6, 2006 in the Essex County Register's Office.

A-5716-17T1 2 On November 17, 2008, Chase Bank assigned the mortgage to Chase

Home Finance, LLC (Chase Home), which assignment was recorded on

December 11, 2008. On the same date, November 17, 2008, Chase Home

assigned the mortgage to Deutsche Bank National Trust Company, as trustee for

J.P. Morgan Chase Bank, National Association JPMAC 2007-CH3, which

assignment was recorded on December 21, 2008. On July 27, 2009, Chase Home

executed a subsequent assignment in order to "[c]orrect the [a]ssignee name,"

this time assigning the mortgage to plaintiff, Deutsche Bank National Trust

Company, as trustee for J.P. Morgan Mortgage Acquisition trust 2007-CH3,

Asset Backed Pass-Through Certificates, Series 2007-CH3. The corrective

assignment was recorded on September 23, 2009.

Less than two years after executing the loan documents, on February 1,

2008, defendant defaulted on the note by failing to make the required payments.

In accordance with N.J.S.A. 2A:50-56(a), over thirty days before filing a

foreclosure action, a Notice of Intention to Foreclose (NOI) was mailed to

defendant on October 13, 2014 by Select Portfolio Servicing, Inc. (SPS),

plaintiff's servicer, identifying the lender, the amount due, and the date on which

defendant's right to cure the default would expire. When defendant failed to

A-5716-17T1 3 cure the default, on April 2, 2015, plaintiff filed a foreclosure complaint. 1

Thereafter, defendant filed a contesting answer, raising twelve affirmative

defenses, including plaintiff's lack of standing, a statute of limitations bar, and

failure to comply with the notice requirements in the Fair Foreclosure Act

(FFA), N.J.S.A. 2A:50-53 to -68.

Subsequently, plaintiff moved for summary judgment, and defendant

cross-moved to dismiss plaintiff's complaint. In a supporting certification, Jill

Johnson, an SPS document control officer, certified that based on her personal

review of business records kept in the regular course of business, defendant

failed to cure the default after a NOI "was sent to [her] via certified mail return

receipt requested." Johnson also averred that "[p]rior to the commencement of

th[e] action, [p]laintiff was and to date remains the holder of [the] note executed

by [d]efendant," and the assignment of the mortgage to plaintiff, as evidenced

by the corrective assignment, predated the filing of the foreclosure complaint.

In an order entered on October 23, 2015, Judge Donald A. Kessler denied

defendant's motion, granted plaintiff summary judgment, struck defendant's

answer, and transferred the matter to the Office of Foreclosure as an uncontested

1 This was the second foreclosure complaint plaintiff filed against defendant . The first was filed on June 2, 2008, but was subsequently dismissed without prejudice for lack of prosecution. A-5716-17T1 4 case. In an accompanying written opinion, the judge applied the governing

principles and determined that "there [were] no genuine issues of material fact

in dispute." The judge concluded plaintiff "established a prima facie case of its

right to foreclose" by "demonstrating the execution of the mortgage, delivery of

the mortgage, and nonpayment of the mortgage."

After carefully reviewing the Johnson certification, the judge determined

it satisfied the personal knowledge requirements of Rule 1:6-6, and the business

records requirements of Rule 4:64-2 to support plaintiff's prima facie case. The

judge also acknowledged that defendant "admit[ted] to the execution of the

[loan] documents," and admitted to "defaulting under the terms of the [n]ote and

[m]ortgage," thus conceding material elements of plaintiff's case.

The judge rejected defendant's affirmative defenses, as "barebones

allegations unsupported by any facts" sufficient to "defeat a meritorious

application for summary judgment." In particular, the judge rejected defendant's

contention that plaintiff's foreclosure action was barred by the statute of

limitations. The judge posited "[t]he issue is whether [p]laintiff is bound by a

six-year statute of limitation, which may have tolled in 2008 when [p]laintiff

'accelerated' the loan in its initial complaint, or whether [p]laintiff is subject to

A-5716-17T1 5 the [twenty]-year statute of limitations, calculated from the date [d]efendant

defaulted on the obligation."

After conducting a thorough analysis of the statute of limitations codified

in N.J.S.A. 12A:3-118(a), the Uniform Commercial Code (UCC) provision

governing secured instruments and notes, and N.J.S.A. 2A:50-56.1, the FFA

provision relating to foreclosures, the judge concluded that the twenty-year

statute of limitations contained in N.J.S.A. 2A:50-56.1(c), rather than the six-

year statute of limitations contained in N.J.S.A. 12A:3-118(a), applied to

foreclosure actions. According to the judge, "[s]ince [d]efendant defaulted on

February 1, 2008, which is less than twenty years ago, the statute of limitations

ha[d] not lapsed."

The judge also expressly rejected defendant's standing challenge. Relying

on the Johnson certification, the judge found that plaintiff "established

possession of the [n]ote, and . . . annexed a true copy . . . to the certification."

The judge explained that because "[t]he [n]ote [was] ultimately indorsed in

blank by [Chase Home]," under N.J.S.A. 12A:3-205(b), the note became

"payable to bearer." According to the judge, "[a]s the bearer of the note,

indorsed in blank, [p]laintiff [was] the holder of the [n]ote and entitled to enforce

the note" pursuant to N.J.S.A. 12A:3-301.

A-5716-17T1 6 Additionally, citing Deutsche Bank Trust Co. Americas v. Angeles, 428

N.J. Super. 315 (App. Div. 2012), the judge found that "although possession of

the [n]ote indorsed in blank [was] enough to establish [p]laintiff's standing,

[d]efendant . . . also provided evidence of a valid assignment" that "predate[ed]

the complaint" to further support "its standing" claim. In that regard, the judge

rejected defendant's contention that the assignment was invalid "because Chase

Home . . . had already assigned the mortgage to another party prior to assigning

the mortgage to [p]laintiff." The judge noted defendant "provide[d] no legal

basis to challenge a corrective assignment" and was satisfied that "the corrective

assignment was validly made to reflect the chain of title."

Thereafter, plaintiff moved for leave to file an amended complaint to add

a judgment creditor as a defendant, and, on February 17, 2017, Judge Kessler

granted plaintiff's unopposed motion. An amended complaint was subsequently

filed on February 24, 2017, and defendant filed an amended answer raising

seventeen affirmative defenses, mirroring those raised in her first answer.

On May 5, 2017, plaintiff filed a second motion for summary judgment.

In support, plaintiff submitted a certification prepared by SPS Document

Control Officer Sherry Benight, which mirrored the Johnson certification. In a

June 28, 2017 order, Judge Kessler granted plaintiff's unopposed motion, struck

A-5716-17T1 7 defendant's amended answer, and transferred the case to the Office of

Foreclosure as an uncontested matter. In his statement of reasons, the judge

found that "the law of the case doctrine applie[d] and preclude[d] [d]efendant

from re-litigating substantially identical defenses to [p]laintiff's foreclosure

action." The judge determined that defendant was "provided a 'full and fair

opportunity to litigate' her defenses," "the law of the case doctrine preclude[d]

[d]efendant[] from re-raising the same defenses and theories which th[e] [c]ourt

previously determined were futile[,]" and "[her] answer to the amended

complaint [did] not address any of the new theories set forth in the amended

complaint."

On November 15, 2017, plaintiff moved for entry of final judgment.

Pursuant to Rule 4:64-2 and Rule 4:64-9(b), plaintiff submitted a "certification

of proof of amount due" executed by Kim McElreath, an SPS document control

officer, certifying to the amounts due and owing, defendant's failure to cure the

default, and plaintiff's status as the holder of the note and assignee of the

mortgage. An amount due schedule providing a detailed breakdown of the

amount due was attached to the certification, and reflected an amount due of

$736,061.29, consisting of unpaid principal, interest, and advances.

A-5716-17T1 8 Over plaintiff's objection, defendant filed a cross-motion to fix the amount

due. In her supporting certification, defendant "dispute[d]" all the amounts

listed on the schedule, claiming "[p]laintiff concealed the actual amount by

redacting some transaction amounts." In a June 15, 2018 order, a different judge

denied defendant's motion to fix the amount due. In an oral opinion, the judge

determined that plaintiff's certification complied with Rule 4:64-2(b) and

provided the evidential support required by the rule. In contrast, defendant

failed to provide the "specificity" required by the rule to advance a valid

objection. Accordingly, the judge rejected defendant's "general" "conclusory"

"objections" as "[im]proper objections" under the rule, and returned the matter

to the Office of Foreclosure. On July 5, 2018, a final judgment of foreclosure

was entered and this appeal followed.

On appeal, defendant raises the following points for our consideration:

POINT I THE TRIAL COURT ERRED[] AND ABUSED ITS DISCRETION GRANTING THE FIRST SUMMARY JUDGMENT[.]

POINT 2 THE TRIAL COURT ERRED[] AND ABUSED ITS DISCRETION [WHEN IT] PERMIT[TED PLAINTIFF] TO AMEND ITS COMPLAINT AND GRANT[ED] PLAINTIFF[] A SECOND SUMMARY [JUDGMENT] WITHOUT VACATING THE FIRST SUMMARY JUDGMENT ORDER (NOT RAISED BELOW).

A-5716-17T1 9 As to the second point, defendant's failure to oppose plaintiff's motion to

amend the complaint and plaintiff's second summary judgment motion in the

trial court precludes her from challenging these orders on appeal. See State v.

Robinson, 200 N.J. 1, 20 (2009) (restating the well-settled legal principle that

"appellate courts will decline to consider questions or issues not properly

presented to the trial courts when an opportunity for such a presentation is

available unless the questions so raised on appeal go to the jurisdiction of the

trial court or concern matters of great public interest" (quoting Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973)). As to the first point, we affirm

substantially for the reasons expressed in Judge Kessler's cogent and well-

reasoned written opinion. 2 We add the following brief comments.

We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366

(2016). "Summary judgment is appropriate where the evidence fails to show a

genuine issue as to any material fact challenged and the moving party is entitled

2 In her notice of appeal, defendant also lists the June 15, 2018 order denying her motion to fix the amount due, and the July 5, 2018 order entering final judgment of foreclosure. However, nowhere in her merits brief does defendant present any legal argument or citation of law challenging these orders. "An issue that is not briefed is deemed waived upon appeal." N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super. 501, 505-06 n.2 (App. Div. 2015). A-5716-17T1 10 to judgment as a matter of law." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,

299 (App. Div. 2009) (citing R. 4:46-2(c)). In reviewing summary judgment

motions, we "view the 'evidential materials . . . in the light most favorable to the

non-moving party.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div.

2014) (alteration in original) (quoting Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995)). However, "an adverse party may not rest upon the

mere allegations or denials of the pleading . . . [to show] that there is a genuine

issue for trial." R. 4:46-5(a).

Further, it is "well settled that '[b]are conclusions in the pleadings without

factual support in tendered affidavits, will not defeat a meritorious application

for summary judgment.'" Cortez, 435 N.J. Super. at 606 (alteration in original)

(quoting Brae Asset Fund, LP v. Newman, 327 N.J. Super. 129, 134 (App. Div.

1999)). Additionally, all sufficiently supported material facts will be deemed

admitted for purposes of the motion unless "specifically disputed" by the party

opposing the motion. R. 4:46-2(b). "The practical effect of [Rule 4:46-2(c)] is

that neither the motion court nor an appellate court can ignore the element s of

the cause of action or the evidential standard governing the cause of action."

Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

A-5716-17T1 11 In that regard, "the only issues in a foreclosure action are the validity of

the mortgage, the amount of the indebtedness, and the right of the mortgagee to

resort to the mortgaged premises." U.S. Bank Nat. Ass'n v. Curcio, 444 N.J.

Super. 94, 112-13 (App. Div. 2016) (quoting Sun NLF Ltd. P'ship v. Sasso, 313

N.J. Super. 546, 550 (App. Div. 1998)). When "the execution, recording, and

non-payment of the mortgage [are established], a prima facie right to foreclosure

[is] made out." Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div.

1952).

To establish the right to resort to the mortgaged premises, the mortgagee

must have standing. "As a general proposition, a party seeking to foreclose a

mortgage must own or control the underlying debt" in order to have "standin g

to proceed with the foreclosure action." Deutsche Bank Nat'l Tr. Co. v. Mitchell,

422 N.J. Super. 214, 222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v.

Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)). However, "either possession

of the note or an assignment of the mortgage that predated the original complaint

confer[s] standing." Angeles, 428 N.J. Super. at 318 (citing Mitchell, 422 N.J.

Super. at 216).

Here, applying these well settled principles, we are convinced Judge

Kessler properly granted plaintiff summary judgment. To the extent any

A-5716-17T1 12 argument raised by defendant in her merits brief has not been explicitly

addressed, it is because the argument lacks sufficient merit to warrant discussion

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

Affirmed.

A-5716-17T1 13