FEDERAL NATIONAL MORTGAGE ASSOCIATION VS. JUDITH MESSINEO(F-7411-13, WARREN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 3, 2017
• Docket: A-0979-15T3
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0979-15T3

FEDERAL NATIONAL MORTGAGE ASSOCIATION,

Plaintiff-Respondent,

v.

JUDITH MESSINEO,

Defendant-Appellant,

and

DOMINIC F. COLETTA; MARY COLETTA; STATE OF NEW JERSEY; COUNTY OF MONMOUTH; SYED S. AHMAD; SYED AHMAD, M.D.; PLEASANT DENTAL CENTER P.A.; ADAMAR OF NEW JERSEY, INC.; GARY AXELRAD, M.D.; COUNTY OF ATLANTIC; HOSPITAL AND DOCTORS SERVICE BUREAU; SPIRAS CLOTHING INC., 600 KINDERKAMACK ROAD OPERATING COMPANY, L.L.C., d/b/a ORADELL HEALTH CARE CENTER; and UNITED STATES OF AMERICA,

Defendants. ____________________________________

Submitted January 31, 2017 – Decided July 3, 2017

Before Judges Suter and Guadagno. On appeal from Superior Court of New Jersey, Chancery Division, Warren County, Docket No. F-7411-13.

Judith Messineo, appellant pro se.

Stern, Lavinthal & Frankenberg, L.L.C., attorneys for respondent (Mark S. Winter, of counsel and on the brief).

PER CURIAM

Defendant Judith Messineo (Messineo)1 appeals a September 12,

2013 order granting summary judgment to plaintiff Federal National

Mortgage Association (Federal National), and an August 20, 2015

final judgment foreclosing her interest in certain residential

real estate. We affirm both orders.

The foreclosure complaint filed by Federal National alleged

that in July 2004, Messineo executed a $93,000 note and a mortgage

to First Horizon Home Loan Corporation (First Horizon). The note

was endorsed in blank. The recorded mortgage was assigned in June

2010 to Mortgage Electronic Registration Systems, Inc. (MERS), as

nominee for First Horizon. It was assigned again in May 2011 by

MERS to Federal National and recorded. Messineo denied execution

of the note and mortgage in her answer.

1 While there are other defendants listed in the foreclosure complaint, our opinion references Messineo because she is the only party who has appealed.

2 A-0979-15T3 Messineo defaulted on the note in December 2010. On December

26, 2012, Seterus, Inc. (Seterus), the servicer of the mortgage

loan, sent Messineo a Notice of Intention to Foreclosure (NOI).

The NOI identified Federal National as the owner of the loan and

holder of the mortgage. Although the NOI advised Messineo of the

amount needed to cure the default and her right to do so, the

default was not cured.

Federal National filed a foreclosure complaint against

Messineo and various judgment creditors on March 7, 2013. Messineo

filed an answer with twenty–one affirmative defenses.

Federal National and Messineo exchanged interrogatories.

Federal National responded to the interrogatories Messineo

served.2 However, by July 31, 2013, when Messineo had not served

answers to the interrogatories or notice to produce documents that

Federal National had propounded on May 30, 2013, Messineo filed a

motion returnable on September 12, 2013 to extend the time for

discovery, requesting ninety days to respond. Messineo contended

she was not able to provide answers or obtain documents within the

2 Messineo objects on appeal to the answers provided by Federal National but did not file a motion before the trial court asking for more specific answers. See R. 4:17-5(c). Generally, we do not consider issues that were not raised before the trial court. Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973) (citations omitted). We see no reason to vary from that rule here.

3 A-0979-15T3 time provided because she was representing herself, was elderly

and was taking various medications. She also contended she was

unable to locate documents because the house had been damaged by

Hurricane Sandy in 2012 and was being repaired.3

Messineo's motion included her answers to a Demand for

Admissions (Admissions) propounded by Federal National. She

denied executing the note or mortgage, and denied being in default.

For each response, Messineo asserted that she "qualified for

modification under Federal Law which was improperly denied by

Plaintiff, in addition to other affirmative defenses set forth in

the Answer."

Federal National opposed the requested extension of time. It

contended Messineo had not shown an extension to answer discovery

"will supply her with the elements needed for her defense."

3 When the foreclosure complaint was filed, the U.S. Department of Housing and Urban Development (HUD) had a moratorium in effect preventing Federal National from foreclosing on homes in areas declared by President Obama to be impacted by the disaster. Press Release, HUD No. 12-166, HUD Sec'y Announces Foreclosure Prot. for N.J. Storm Victims (Oct. 30, 2012), https://portal.hud.gov/hudportal/HUD?src=/press/press_releases_m edia_advisories/2012/HUDNo.12-166. The moratorium went into effect on October 30, 2012 and was to last ninety days, but was later extended through April 30, 2013. HUD, Mortgagee Letter 2013-06 (Jan. 31, 2013), https://portal.hud.gov/hudportal/documents/huddoc?id=13- 06ml.pdf. However, Warren County, where Messineo's home was located, was not deemed to be in the region impacted by the superstorm, and was therefore not protected by the moratorium. See HUD No. 12-166, supra.

4 A-0979-15T3 Federal National also filed a cross-motion for summary

judgment on July 30, 2013 supported by a certification from a

representative of Seterus. The certification alleged Federal

National was the "holder of a certain Note [and mortgage] executed

by [Messineo]," that she was in default of her obligations under

the mortgage loan, and that a NOI was sent to her at least thirty

days before filing for foreclosure. Messineo opposed the cross-

motion, asserting again that she needed more time because of her

age, health and condition of the property. She opposed the summary

judgment motion by claiming that Federal National did not have

standing, and by generally referencing her affirmative defenses.

She did not assert that she was a participant in a trial

modification program.

On the September 12 return date of the motion and cross-

motion, Messineo failed to appear. The trial court decided the

motions on the papers submitted. By order dated September 12,

2013, the court denied Messineo's request to enlarge the time for

her to answer discovery and granted summary judgment to Federal

National, striking Messineo's answer and affirmative defenses.

The court found that Messineo executed a note and mortgage

and then defaulted. Under the loan documents, Federal National

could accelerate the debt. The court found the NOI was sent to

Messineo more than thirty days before the foreclosure suit was

5 A-0979-15T3 filed. It found that the obligation and the mortgage were assigned

to Federal National before the complaint was filed. In rejecting

Messineo's request to extend her time to answer discovery, the

judge found that she did not meet her burden of "demonstrating

with some degree of particularity the likelihood that discovery

will supply her with the elements needed for her defense."

Moreover, in the time she had waited to file the motion, she "could

have acquired most, if not all, of the necessary documents to

comply with [Federal National's] discovery requests." As such,

the court found Messineo had not shown "good cause" under Rule

4:17-4(b).

The court found Federal National had demonstrated the prima

facie elements of foreclosure. Federal National produced proof

that the mortgage was recorded and, although Messineo did not

admit to executing the mortgage loan, the court found the note and

mortgage appeared "to be validly executed, [Messineo] had

defaulted on those obligations, and the notes explicitly

assert[ed] Plaintiff's right to the mortgaged premises." The

court rejected Messineo's argument that Federal National lacked

standing to pursue the foreclosure action, finding "where there

is an endorsement in blank (as existed here), New Jersey law has

deemed physical possession sufficient to enforce the note." The

court rejected defendant's affirmative defenses because she did

6 A-0979-15T3 "not discuss any factual details behind [them] that would give

rise to a genuine issue of material fact."

We denied without prejudice Messineo's request to appeal the

September 12, 2013 order on an interlocutory basis. Thereafter,

Messineo opposed Federal National's motion for entry of a final

judgment of foreclosure. Her opposition raised the same arguments

that were rejected on summary judgment and did not challenge the

amount due on the loan. See Rule 4:64-1(c). A final judgment of

foreclosure was entered on August 20, 2015. We granted Messineo's

request to appeal out of time.

On appeal, Messineo contends the trial court erred by denying

her request for more time to answer discovery, by then entering

summary judgment and striking her affirmative defenses, and by

entering a final judgment of foreclosure. We find no merit to any

of these issues.

We review the trial court's discovery order under an abuse

of discretion standard. State in Interest of A.B., 219 N.J. 542,

554 (2014). We "defer to a trial court's resolution of a discovery

matter, provided its determination is not so wide of the mark or

is not 'based on a mistaken understanding of the applicable law.'"

Ibid. (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 371 (2011)). An abuse of discretion "arises when a decision

is made without rational explanation, inexplicably departed from

7 A-0979-15T3 established policies, or rested on an impermissible basis." Flagg

v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation and

internal quotation marks omitted).

The trial court did not abuse its discretion in denying

Messineo's request for more time to answer the discovery propounded

upon her. Messineo did not suggest to the judge "with any

specificity the nature of the information [she] still hoped to

elicit." Auster v. Kinoian, 153 N.J. Super. 52, 55 (App. Div.

1977). She did not articulate any "factual theory" that would

constitute a defense to the foreclosure action. See ibid. On

this record, we discern no error by the trial court in the exercise

of its discretion.

Federal National's cross-motion for summary judgment was not

germane to Messineo's discovery motion because it did not relate

to the subject matter of the original motion. R. 1:6-3(b).

However, because the cross-motion was returnable more than twenty-

eight days after it was filed, see Rule 4:46-1, we discern no

procedural error by the trial judge in hearing and deciding the

cross-motion at the same time as the discovery motion.

We review a summary judgment decision de novo, which means

that we apply the same standards used by the trial judge. W.J.A.

v. D.A., 210 N.J. 229, 237 (2012). The question is whether the

evidence, "when viewed in the light most favorable to the non-

8 A-0979-15T3 moving party," raises genuinely disputed issues of fact sufficient

to warrant resolution by the trier of fact, or whether "the

evidence 'is so one-sided that one party must prevail as a matter

of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). Applying

this standard, there was no error in granting summary judgment.

In a foreclosure matter, a party seeking to establish its

right to foreclose on the mortgage must generally "own or control

the underlying debt." 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));

Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div.

2010) (citations omitted). In Deutsche Bank Trust Co. Americas

v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), we held

that "either possession of the note or an assignment of the

mortgage that predated the original complaint confer[s] standing,"

thereby reaffirming our earlier holding in Mitchell, supra, 422

N.J. Super. at 216.

We agree with the trial court that Messineo failed to raise

any genuine issues of fact about the execution of the note and

mortgage. In her brief on appeal, Messineo contends that she was

eligible for a modification of the mortgage and submitted

9 A-0979-15T3 information to Seterus that she qualified for a modification.

Moreover, in her appendix she submitted a request to Seterus to

"payoff the current mortgage" though a reverse mortgage. Her

answers to the Admissions asserted she was qualified for a

modification but was improperly denied. All of these

representations were inconsistent with her earlier denial of the

mortgage and note.

The trial court was correct to reject Messineo's counterclaim

that Federal National lacked standing. The representative of

Seterus certified the mortgage was assigned in May 2011 prior to

the filing of the foreclosure complaint in March 2013. Under

N.J.S.A. 46:9-9, "[a]ll mortgages on real estate in this State

. . . shall be assignable at law by writing . . . and any such

assignment shall pass and convey the estate of the assignor in the

mortgaged premises . . . ." Moreover, "[g]iven that the mortgage

was properly recorded and appears facially valid, under New Jersey

law there is a presumption as to its validity, and the burden of

proof as to any invalidity is on the party making such an

argument." In re S.T.G. Enters., Inc., 24 B.R. 173, 176 (Bankr.

D.N.J. Nov. 3, 1982) (citations omitted). Messineo has not

attempted to overcome this presumption. By virtue of the

assignment of the mortgage, which predated the filing of the

10 A-0979-15T3 foreclosure complaint, Federal National clearly had standing to

foreclose pursuant to Angeles.

"The only material issues in a foreclosure proceeding are the

validity of the mortgage, the amount of the indebtedness, and the

right of the mortgagee to resort to the mortgage premises." Great

Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993)

(citations omitted). We agree with the trial judge that Messineo

did not raise genuine issues of fact about the mortgage or

assignments, the application of this mortgage to the residential

property, her default or the affirmative defenses. Therefore, we

agree with the trial judge that Messineo raised no genuine dispute

of material fact that required the matter to proceed to trial,

and, therefore the judge did not err by granting summary judgment

and striking her affirmative defenses.

Once Messineo's answer and affirmative defenses were

stricken, the case proceeded as an uncontested action. See R.

4:64-1(c) ("An action to foreclose a mortgage . . . shall be deemed

uncontested if, as to all defendants, . . . all the contesting

pleadings have been stricken or otherwise rendered

noncontesting."). She then failed to assert any objection to the

amount due, see Rule 4:64-1(d)(3), which cleared the way for entry

of the final judgment of foreclosure.

11 A-0979-15T3 Any further contentions made by Messineo are without

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

12 A-0979-15T3