DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS. JOSEPH M. GILLIS (F-030684-15, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 8, 2019
• Docket: A-2044-17T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2044-17T3

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE, FOR THE WAMU MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2005-AR9,

Plaintiff-Respondent,

v.

JOSEPH M. GILLIS a/k/a JOSEPH GILLIS, and EULALIA GILLIS a/k/a EVLALIA GILLIS,

Defendants-Appellants,

and

FIRST BANKAMERICANO, SANTANDER BANK NATIONAL ASSOCIATION f/k/a SOVEREIGN BANK, SUCCESSOR IN INTEREST TO INDEPENDENCE COMMUNITY BANK,

Defendants. ________________________________

Submitted January 9, 2019 – Decided February 8, 2019 Before Judges Nugent and Reisner.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F- 030684-15.

Joseph Gillis and Eulalia Gillis, appellants pro se.

Eckert Seamans Cherin & Mellott, LLC, attorneys for respondent (Anita J. Murray, of counsel; Richard J. Nalbandian, III, on the brief).

PER CURIAM

In this foreclosure case, defendants Joseph and Eulalia Gillis appeal from

the following orders: a July 8, 2016 order granting summary judgment in favor

of plaintiff Deutsche Bank National Trust Company, as Trustee, for the WaMu

Mortgage Pass-Through Certificates, Series 2005-AR9 (plaintiff or Deutsche

Bank) and denying defendants' cross-motion to dismiss; a November 17, 2017

order denying defendants' motion to fix the amount due; and a November 21,

2017 final judgment of foreclosure.1

On this appeal, defendants present the following points of argument:

Point 1 – The Trial Court erred in its ruling that the Statutes of Limitations had not [run] against Plaintiff's enforcement claims on the Note and Mortgage.

1 The notice of appeal also listed an April 1, 2016 discovery order. However, defendants waived their appeal of that order when they failed to brief the discovery issue. A-2044-17T3 2 Point 2 – The Trial Court erred, and abused its discretion concluding plaintiff had standing to maintain the foreclose action.

Point 3 – The Trial Court erred and abused its discretion concluding Plaintiff demonstrated with evidence the amount due is accurate.

We review the trial court's summary judgment order, and its legal

conclusions, de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202

N.J. 369, 382-83 (2010). However, we review for abuse of discretion the trial

court's decision as to the admissibility of evidence on a summary judgment

motion. Id. at 383-84.

After reviewing the record with those standards in mind, we conclude that

defendants' arguments are without merit and were appropriately rejected for the

reasons stated by the trial court. Except as briefly addressed below, the

arguments are without sufficient merit to warrant further discussion. R. 2:11-

3(e)(1)(E).

In 2005, defendants borrowed $1,190,000, secured by a note and a

mortgage in favor of Washington Mutual Bank, FA (WAMU). After WAMU

went into receivership, the Federal Deposit Insurance Corporation sold

WAMU's loans and other assets to JPMorgan Chase (Chase). Defendants

defaulted on the mortgage in 2009. Chase assigned the mortgage to plaintiff

A-2044-17T3 3 Deutsche Bank, and the assignment was recorded on June 15, 2015. Plaintiff

filed a foreclosure complaint on September 8, 2015.

Plaintiff filed a summary judgment motion in 2016, supported by a

certification of Paige Bushnell, an employee of the company that serviced the

mortgage for plaintiff. Bushnell certified, based on her review of plaintiff's

records, that plaintiff was the holder of the original note and mortgage, through

a chain of assignments. The note, mortgage, and assignment documents were

attached as exhibits to the certification. We find no abuse of the trial court's

discretion in treating Bushnell's certification and the attached exhibits as legally

competent evidence. Plaintiffs did not introduce any legally competent evidence

to the contrary. Based on the undisputed evidence, plaintiff had standing to file

the foreclosure action. See N.J.S.A. 46:18-13(b)(1); Residential Mort. Loan

Trust v. Morgan Stanley Mort. Cap., Inc., __ N.J. Super. __, __ (2018) (slip op.

at 6-8).

We likewise find no error in the trial court's decision to accept a

certification from an employee of plaintiff's mortgage servicing company,

attesting to the amount due. The record reflects that plaintiff agreed with

another mortgage holder, Santander Bank, that only half the debt defendants

owed plaintiff on this mortgage would have priority. As a result, plaintiff asked

A-2044-17T3 4 the court in this action to set the amount due at $534,000, instead of the full

amount of the mortgage, plus interest, fees, and costs. A calculation of the latter

amounts was attached to the certification. Defendants did not present any

specific calculations of their own to challenge the amount due.

Finally, defendants' statute of limitations argument evinces a

misunderstanding of the applicable law concerning mortgage foreclosures. The

statute of limitations for a mortgage foreclosure action is controlled by the Fair

Foreclosure Act (FFA), N.J.S.A. 2A:50-56.1. See Deutsche Bank Trust Co.

Americas, as Trustee for Residential Accredit Loans, Inc. v. Weiner, 456 N.J.

Super. 546, 547 (App. Div. 2018). Under the statute, plaintiff was required to

file the action within six years after "the maturity date set forth in the mortgage,"

which was February 1, 2035; twenty years from the date of defendant's default;

or thirty-six years from the date on which the mortgage was recorded. N.J.S.A.

2A:50-56.1(a) to (c). Contrary to defendants' argument, declaring the due dat e

accelerated on account of their default did not change the "maturity date set forth

in the mortgage" for purposes of the six-year time limit set forth in N.J.S.A.

2A:50-56.1(a). See Deutsche Bank, 456 N.J. Super. at 548-49.

Affirmed.

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