NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1983-19
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR HOME EQUITY MORTGAGE LOAN ASSET- BACKED TRUST SERIES INABS 2007-A, HOME EQUITY MORTGAGE LOAN ASSET- BACKED CERTIFICATES SERIES INABS 2007-A,
Plaintiff-Respondent,
v.
KEITH ETLING,
Defendant-Appellant,
and
MRS. KEITH ETLING, HIS WIFE, AND ACB RECEIVABLES MGMT INC,
Defendants. ______________________________
Submitted March 8, 2021 – Decided April 22, 2021 Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F- 024166-17.
Keith Etling, appellant pro se.
Duane Morris, LLP, attorneys for respondent (Brett L. Messinger and Stuart I. Seiden, on the brief).
PER CURIAM
In this residential foreclosure action, defendant Keith Etling appeals from
a September 28, 2018 Chancery Division order granting plaintiff Deutsche Bank
National Trust Company summary judgment, deeming the dispute an
uncontested foreclosure, and returning the matter to the Office of Foreclosure
for entry of final judgment. Defendant also appeals from a February 15, 2019
order denying his motion to vacate the September 28, 2018 summary judgment.
We affirm.
I.
On December 29, 2006, defendant executed a promissory note in the
amount of $276,250 to East Coast Mortgage Corporation as part of a mortgage
loan transaction. To secure payment, defendant also executed to Mortgage
Electronic Registration Systems (MERS) a non-purchase money mortgage on
A-1983-19 2 property he owned on Castle Avenue in Jackson. The mortgage was recorded
in the office of the County Clerk of Ocean County on January 10, 2007.
MERS assigned the mortgage to IndyMac Bank, FSP (IndyMac), which
recorded the mortgage assignment on August 4, 2008. The terms of repayment
of the note and mortgage were modified by five separate loan modification
agreements between November 2008 and November 2016.
Defendant defaulted on the final loan modification agreement by failing
to make the monthly payment due on March 1, 2017 and thereafter. On April 3,
2017, a notice of intent to foreclose (NOI) was mailed to defendant at the
mortgaged property via certified mail, return receipt requested, in accordance
with the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68. The record
contains a copy of the NOI, which bears a certified mail tracking number.
Thereafter, the Federal Deposit Insurance Corporation, as receiver for
IndyMac, assigned the mortgage to plaintiff, which recorded the mortgage
assignment on September 12, 2017. Plaintiff then filed a complaint for
foreclosure on October 24, 2017. Plaintiff possessed the original note and
mortgage at the time it filed its complaint. Defendant filed an answer on
February 8, 2018, denying all of plaintiff's allegations and raising various
affirmative defenses, including that plaintiff lacked standing.
A-1983-19 3 On August 30, 2018, plaintiff filed a motion for summary judgment
supported by the certification of Tiffany Hollis, a contract management
coordinator for plaintiff's loan servicer. Hollis certified as to her personal
knowledge and review of all relevant business records and attested to their
accuracy. She certified to the execution, recording, and assignment of the
mortgage to plaintiff and to defendant's default. She also certified to the mailing
of the NOI to defendant at the mortgaged property. Defendant did not file
opposition to plaintiff's motion.
On September 28, 2018, the trial court issued an order granting plaintiff's
motion for summary judgment and returned the matter to the Office of
Foreclosure to proceed as an uncontested foreclosure. The court also issued an
oral opinion on the record, finding plaintiff established a prima facie case of its
right to foreclose and defendant failed to oppose the motion or provide any
evidence in his answer to overcome plaintiff's prima facie showing.
Accordingly, plaintiff moved for entry of final judgment on November 9,
2018. In response, defendant filed a motion for reconsideration to vacate the
summary judgment order — alleging plaintiff concealed material facts, did not
have standing to file the complaint, and did not properly serve defendant the
NOI — and a motion to fix the amount due.
A-1983-19 4 On February 15, 2019, the court issued an order denying defendant’s
motions and entering final judgment for plaintiff. In an oral opinion, the court
found no basis to vacate summary judgment, reiterating that plaintiff established
its prima facie right to foreclose and FFA compliance. The court also found
defendant’s motion to fix the amount due was time-barred and nonetheless
contained generalized arguments unsupported by evidence.
On appeal, defendant raises the following argument:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR RECONSIDERATION TO VACATE THE SUMMARY JUDGMENT ORDER AND DISMISS THE COMPLAINT BECAUSE THE RECORD CONTAINS NO EVIDENCE OF PLAINTIFF MAILING THE NOI TO DEFENDANT.
II.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J.
501, 511 (2019). We will grant summary judgment "when the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
A-1983-19 5 matter of law." Ibid. (internal quotations and citations omitted). Without
making credibility determinations, we consider the evidence "in the light most
favorable to the non-moving party" and determine whether it would be
"sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995).
Defendant does not dispute that plaintiff produced sufficient evidence to
establish a prima facie case of the right to foreclose. See Thorpe v. Floremoore
Corp., 20 N.J. Super. 34, 37 (App. Div. 1952) (holding that, to succeed on
summary judgment, a mortgagee must establish a prima facie case of the right
to foreclose upon proof of execution, recording, and default). Instead, he
contends plaintiff failed to produce sufficient evidence of proper service of an
NOI; he specifically cites plaintiff's failure to produce any envelope, certified
mail receipt, return receipt, or tracking history for the NOI.
Under the FFA, a mortgagee must serve an NOI, "in writing, sent to the
debtor by registered or certified mail, return receipt requested, at the debtor's
last known address, and, if different, to the address of the Property which is the
subject of the residential mortgage" at least thirty days prior to commencing any
foreclosure proceeding. N.J.S.A. 2A:50-56(a),(b). The NOI "is a central
A-1983-19 6 component of the FFA, . . .
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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-1983-19
DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR HOME EQUITY MORTGAGE LOAN ASSET- BACKED TRUST SERIES INABS 2007-A, HOME EQUITY MORTGAGE LOAN ASSET- BACKED CERTIFICATES SERIES INABS 2007-A,
Plaintiff-Respondent,
v.
KEITH ETLING,
Defendant-Appellant,
and
MRS. KEITH ETLING, HIS WIFE, AND ACB RECEIVABLES MGMT INC,
Defendants. ______________________________
Submitted March 8, 2021 – Decided April 22, 2021 Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F- 024166-17.
Keith Etling, appellant pro se.
Duane Morris, LLP, attorneys for respondent (Brett L. Messinger and Stuart I. Seiden, on the brief).
PER CURIAM
In this residential foreclosure action, defendant Keith Etling appeals from
a September 28, 2018 Chancery Division order granting plaintiff Deutsche Bank
National Trust Company summary judgment, deeming the dispute an
uncontested foreclosure, and returning the matter to the Office of Foreclosure
for entry of final judgment. Defendant also appeals from a February 15, 2019
order denying his motion to vacate the September 28, 2018 summary judgment.
We affirm.
I.
On December 29, 2006, defendant executed a promissory note in the
amount of $276,250 to East Coast Mortgage Corporation as part of a mortgage
loan transaction. To secure payment, defendant also executed to Mortgage
Electronic Registration Systems (MERS) a non-purchase money mortgage on
A-1983-19 2 property he owned on Castle Avenue in Jackson. The mortgage was recorded
in the office of the County Clerk of Ocean County on January 10, 2007.
MERS assigned the mortgage to IndyMac Bank, FSP (IndyMac), which
recorded the mortgage assignment on August 4, 2008. The terms of repayment
of the note and mortgage were modified by five separate loan modification
agreements between November 2008 and November 2016.
Defendant defaulted on the final loan modification agreement by failing
to make the monthly payment due on March 1, 2017 and thereafter. On April 3,
2017, a notice of intent to foreclose (NOI) was mailed to defendant at the
mortgaged property via certified mail, return receipt requested, in accordance
with the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68. The record
contains a copy of the NOI, which bears a certified mail tracking number.
Thereafter, the Federal Deposit Insurance Corporation, as receiver for
IndyMac, assigned the mortgage to plaintiff, which recorded the mortgage
assignment on September 12, 2017. Plaintiff then filed a complaint for
foreclosure on October 24, 2017. Plaintiff possessed the original note and
mortgage at the time it filed its complaint. Defendant filed an answer on
February 8, 2018, denying all of plaintiff's allegations and raising various
affirmative defenses, including that plaintiff lacked standing.
A-1983-19 3 On August 30, 2018, plaintiff filed a motion for summary judgment
supported by the certification of Tiffany Hollis, a contract management
coordinator for plaintiff's loan servicer. Hollis certified as to her personal
knowledge and review of all relevant business records and attested to their
accuracy. She certified to the execution, recording, and assignment of the
mortgage to plaintiff and to defendant's default. She also certified to the mailing
of the NOI to defendant at the mortgaged property. Defendant did not file
opposition to plaintiff's motion.
On September 28, 2018, the trial court issued an order granting plaintiff's
motion for summary judgment and returned the matter to the Office of
Foreclosure to proceed as an uncontested foreclosure. The court also issued an
oral opinion on the record, finding plaintiff established a prima facie case of its
right to foreclose and defendant failed to oppose the motion or provide any
evidence in his answer to overcome plaintiff's prima facie showing.
Accordingly, plaintiff moved for entry of final judgment on November 9,
2018. In response, defendant filed a motion for reconsideration to vacate the
summary judgment order — alleging plaintiff concealed material facts, did not
have standing to file the complaint, and did not properly serve defendant the
NOI — and a motion to fix the amount due.
A-1983-19 4 On February 15, 2019, the court issued an order denying defendant’s
motions and entering final judgment for plaintiff. In an oral opinion, the court
found no basis to vacate summary judgment, reiterating that plaintiff established
its prima facie right to foreclose and FFA compliance. The court also found
defendant’s motion to fix the amount due was time-barred and nonetheless
contained generalized arguments unsupported by evidence.
On appeal, defendant raises the following argument:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR RECONSIDERATION TO VACATE THE SUMMARY JUDGMENT ORDER AND DISMISS THE COMPLAINT BECAUSE THE RECORD CONTAINS NO EVIDENCE OF PLAINTIFF MAILING THE NOI TO DEFENDANT.
II.
We review a grant of summary judgment de novo, applying the same
standard as the trial court. Woytas v. Greenwood Tree Experts, Inc., 237 N.J.
501, 511 (2019). We will grant summary judgment "when the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
A-1983-19 5 matter of law." Ibid. (internal quotations and citations omitted). Without
making credibility determinations, we consider the evidence "in the light most
favorable to the non-moving party" and determine whether it would be
"sufficient to permit a rational factfinder to resolve the alleged disputed issue in
favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995).
Defendant does not dispute that plaintiff produced sufficient evidence to
establish a prima facie case of the right to foreclose. See Thorpe v. Floremoore
Corp., 20 N.J. Super. 34, 37 (App. Div. 1952) (holding that, to succeed on
summary judgment, a mortgagee must establish a prima facie case of the right
to foreclose upon proof of execution, recording, and default). Instead, he
contends plaintiff failed to produce sufficient evidence of proper service of an
NOI; he specifically cites plaintiff's failure to produce any envelope, certified
mail receipt, return receipt, or tracking history for the NOI.
Under the FFA, a mortgagee must serve an NOI, "in writing, sent to the
debtor by registered or certified mail, return receipt requested, at the debtor's
last known address, and, if different, to the address of the Property which is the
subject of the residential mortgage" at least thirty days prior to commencing any
foreclosure proceeding. N.J.S.A. 2A:50-56(a),(b). The NOI "is a central
A-1983-19 6 component of the FFA, . . . providing 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).
Indeed, the summary judgment record establishes the NOI was served by
certified mail, return receipt requested, to defendant's last known address more
than thirty days before filing the complaint as required by the FFA. On summary
judgment, plaintiff provided (1) a photocopy of the NOI with the certified mail
tracking number and (2) Hollis' certification. Hollis certified that "[o]n April 3,
2017, [plaintiff's loan servicer] mailed copies of the NOI to [defendant], at the
mortgaged property . . . [in] JACKSON, NJ 08527-2427 via certified mail return
receipt requested and regular mail." This evidence is sufficient, particularly
given defendant's failure to oppose plaintiff's summary judgement motion.
Accordingly, we are satisfied that defendant failed to identify any genuine issue
of material fact to preclude summary judgment.
Finally, the trial court correctly denied defendant's motion for
reconsideration. Denial of a motion for reconsideration rests within the sound
discretion of the trial court. Fusco v. Bd. of Educ. of City of Newark, 349 N.J.
Super. 455, 462 (App. Div. 2002). "Motions for reconsideration are granted
only under very narrow circumstances." Ibid. We have long recognized that:
A-1983-19 7 Reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.
[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]
Defendant provides no specific contentions or evidence here to meet those
criteria.
Affirmed.
A-1983-19 8