JPMORGAN CHASE BANK, N.A. VS. TANYA C. BRYANT (F-022473-16, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 16, 2019
• Docket: A-2384-17T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2384-17T4

JPMORGAN CHASE BANK, N.A.,

Plaintiff-Respondent,

v.

TANYA C. BRYANT,

Defendant-Appellant. _____________________________

Submitted March 5, 2019 – Decided April 16, 2019

Before Judges Fisher and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-022473-16.

Tanya C. Bryant, appellant pro se.

McCalla Raymer Leibert Pierce, LLC, attorneys for respondent (Brian P. Scibetta, on the brief).

PER CURIAM

In this residential mortgage foreclosure action, defendant Tanya C. Bryant

appeals from the final judgment of foreclosure, and orders granting summary judgment, denying reconsideration of summary judgment, and denying her

motion to fix the amount due. We affirm.

Defendant borrowed $260,200 from plaintiff in January 2013. Defendant

signed a note in the amount of the loan, and also a mortgage on residential

property located in East Orange, as security for the loan. Defendant defaulted

on her payment obligations on March 1, 2016.

On June 7, 2016, plaintiff sent defendant a notice of intent to foreclose by

certified and regular mail as required by N.J.S.A. 2A:50-56, providing defendant

the opportunity to cure the default on or before July 12, 2016. Defendant failed

to cure and plaintiff filed its foreclosure complaint in August 2016.

Defendant filed an answer asserting multiple affirmative defenses,

including lack of standing. After discovery, plaintiff moved for summary

judgment, which defendant did not oppose. The court granted plaintiff’s motion

on March 1, 2017. Several weeks later, defendant moved for reconsideration,

which was denied. After the court entered a final judgment of foreclosure, which

determined $274,064.43 as the amount owed by defendant, defendant moved to

fix the amount due, contending plaintiff's calculation of the amount due

contained errors. The court dismissed the motion as moot, as defendant failed

A-2384-17T4 2 to submit timely opposition to the amount plaintiff asserted was due in its motion

for final judgment.

On appeal, defendant primarily raises two arguments: 1) plaintiff lacked

standing to foreclose; and 2) plaintiff violated the Home Ownership Security

Act of 2002 (HOSA), N.J.S.A. 46:10B-22, by claiming excessive late fees. We

consider these arguments de novo in a light most favorable to defendant as the

non-moving party. R. 4:46-2(c).

Defendant contends that plaintiff is not the mortgagee and therefore does

not have standing. Standing is conferred on a mortgage foreclosure plaintiff

who establishes possession of the note. Deutsche Bank Tr. Co. Americas v.

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

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

The court may rely on an affidavit "made on personal knowledge, setting

forth only facts which are admissible in evidence to which the affiant is

competent to testify . . . ." R. 1:6-6. Business records may be admitted. N.J.R.E.

803(c)(6).

Plaintiff submitted a certification from Tonya Y. McFadden-Williams, a

vice president with plaintiff, in support of its summary judgment motion.

McFadden-Williams certified she personally reviewed the business records of

A-2384-17T4 3 defendant concerning the note and mortgage. She confirmed that plaintiff has

been in possession of the note since prior to the April 12, 2016 foreclosure

complaint's filing, and has remained in possession throughout the litigation. She

also confirmed the mortgage was held by defendant and executed by defendant.

Her certification complied with Rule 1:6-6 and N.J.R.E. 803(c)(6), and was

uncontested by an opposing certification or other evidence.

The court determined plaintiff met the prima facie standard for relief in a

mortgage foreclosure action. Upon establishing the validity of its note and

mortgage, and that the mortgage loan is in default, a plaintiff has a contractual

right to foreclose. See, e.g., Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394

(Ch. Div. 1993), aff'd, 273 N.J. Super. 542, 642 (App. Div. 1994).

In her motion for reconsideration, defendant attempted to introduce new

material not considered at summary judgment. Reconsideration is not to be used

"to expand the record and reargue a motion." Capital Fin. Co. of Del. Valley,

Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008). For

reconsideration of new evidence, the party must show the "evidence would

probably alter the judgment and by due diligence could not have been

discovered" earlier. Quick Chek Food Stores v. Springfield, 83 N.J. 438, 445

(1980). The judge, in his order and statement of reasons denying

A-2384-17T4 4 reconsideration, noted that defendant's new evidence did not meet this standard,

but nevertheless addressed defendant's arguments on the merits.

In the motion for reconsideration and on this appeal, defendant claims the

note was transferred to an unknown third party, contending there is evidence the

note was indorsed and the transaction history contains evidence of a partial

settlement. However, the note was indorsed in blank. The trial court therefore

correctly determined that plaintiff is entitled to enforce the note as long as it has

possession of the note, pursuant to N.J.S.A. 12A-3-301, and an indorsement in

blank would only permit a third party to enforce the note if that party has

possession of the note. See N.J.S.A. 12A:3-301; N.J.S.A. 12A:3-205(b).

Plaintiff submitted competent evidence that it possessed the note when it filed

this action and through the time of the motion for reconsideration (as attested in

the supplemental certification plaintiff submitted at the request of the court).

Finally, defendant appeals from the trial court's denial of her motion to fix

the amount due. Defendant claims plaintiff violated HOSA by charging

excessive late fees. Late fees may not exceed five percent of the amount of the

past due payment. N.J.S.A. 46:10B-25(d). Defendant's claim clearly lacks merit

as the final judgment did not include any late fee.

Affirmed.

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