NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5406-18T3
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2007-HY7C MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-HY7C,
Plaintiff-Respondent,
v.
DENNIS RINKER,
Defendant-Appellant,
and
MRS. DENNIS RINKER, his wife, DENISE EVANS and SHORE MEMORIAL HOSPITAL,
Defendants. ____________________________ Submitted September 21, 2020 – Decided October 14, 2020
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. F- 025425-17.
Dennis Rinker, appellant pro se.
Frenkel Lambert Weiss Weisman & Gordon, LLP, attorneys for respondent (Timothy Ziegler, on the brief).
PER CURIAM
Defendant Dennis Rinker appeals the August 31, 2018 order granting
summary judgment to plaintiff and the May 20, 2019 final foreclosure judgment.
We are not persuaded by defendant's arguments that plaintiff lacked standing to
foreclose and did not comply with the Fair Foreclosure Act (FFA), N.J.S.A.
2A:50-53 to -68.
In 2007, defendant signed a $146,000 note to Countrywide Bank, FSB
(Countrywide) for a residential property in Egg Harbor Township. Defendant
also executed a mortgage to Mortgage Electronic Registration Systems (MERS)
as nominee for Countrywide to secure the note and recorded it. In 2012, the
mortgage was assigned by MERS to The Bank of New York Mellon f/k/a The
Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc.,
A-5406-18T3 2 Alternative Loan Trust 2007-HY7C Mortgage Pass-Through Certificates, Series
2007-HY7C (plaintiff) and recorded it (the 2012 Assignment). In 2015, MERS,
as nominee for Countrywide, assigned the mortgage to Bank of New York
Mellon, f/k/a the Bank of New York, as Trustee, on Behalf of the Holders of the
Alternative Loan Trust 2007-HY7C, Mortgage Pass Through Certificates Series
2007 HY7C (the 2015 Assignment), and recorded it. A third assignment was
executed in 2016 and recorded in 2017. It was a "gap assignment" to "complete
the chain" from the 2012 Assignment to the 2015 Assignment. This assignment
was from plaintiff to MERS as nominee for Countrywide (the 2016
Assignment).
Defendant defaulted on the note in October 2011 and has not made
payments since then. Plaintiff filed the foreclosure complaint on November 9,
2017. Defendant filed a contesting answer—where he denied most of the
allegations—except he admitted he defaulted on the note and that the whole
amount of it was due. Defendant asserted several affirmative defenses,
including that plaintiff lacked standing.
Plaintiff filed a motion for summary judgment. Relying on a certification
from Cynthia Morrow, a litigation foreclosure specialist employed by the
servicer of plaintiff, plaintiff claimed the original note was in its possession
A-5406-18T3 3 prior to filing the foreclosure complaint, the mortgage was assigned to it and
recorded prior to filing the foreclosure complaint, and that defendant defaulted
on the note and remained in default. Plaintiff alleged the NOI was sent by
regular and certified mail in December 2015.
Defendant's cross-motion to dismiss alleged the statute of limitations
precluded enforcement and plaintiff did not have possession of the note.
Critically, in responding to plaintiff's Statement of Material Facts, defendant
acknowledged the NOI was sent by regular and certified mail on December 15,
2015, and that the 2015 Assignment was from MERS, as nominee for
Countrywide, into plaintiff. Defendant continued to dispute that plaintiff had
possession of the original note. Plaintiff responded by providing a bailee letter
that plaintiff's attorney had possession of the note more than thirty days prior to
filing for foreclosure.
The August 31, 2018 order granted plaintiff's motion for summary
judgment, striking defendant's answer and allowing the case to proceed as
uncontested. Defendant's cross-motion was denied. A final judgment of
foreclosure was entered on May 20, 2019.
On appeal, defendant argues the trial court erred and abused its discretion
by granting summary judgment and denying his cross-motion to dismiss. He
A-5406-18T3 4 contends the NOI was not mailed with a return receipt requested and that
plaintiff lacked standing to foreclose.
"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). A court should 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
matter of law.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 528-29 (1995)); see also R. 4:46-2(c). Defendant's arguments lack merit.
Defendant does not dispute he signed the note and mortgage, defaulted on
payment and has not paid the mortgage since October 1, 2011. Rather, he claims
plaintiff lacks standing to foreclose, alleging lack of possession of the note and
a problem with the assignments.
A party seeking to establish its right to foreclose on a 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)). In Deutsche Bank
Tr. Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), we
A-5406-18T3 5 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, 422 N.J. Super. at 216.
Morrow certified the loan records were business records, she was
personally familiar with the subject loan and reviewed the account. Her
certification complied with N.J.R.E. 803(c)(6). See New Century Fin. Servs.,
Inc. v. Oughla, 437 N.J. Super. 299, 326 (App. Div. 2014). She certified
plaintiff was in possession of the note—endorsed in blank 1—prior to filing the
complaint. The bailee letter also confirmed plaintiff's possession of the note
prior to filing the foreclosure complaint.
Defendant disputed plaintiff's possession of the note in his response to
plaintiff's Statement of Material Facts. However, he admitted the 2015
Assignment was from MERS, as nominee of Countrywide, to plaintiff. With
that admission, there was evidence the assignments ran from MERS to plaintiff
(the 2012 Assignment), from plaintiff to MERS as nominee for Countrywide
(the 2016 Assignment), and from MERS, as nominee for Countrywide, to
plaintiff (the 2015 Assignment). Thus, even if possession of the note were not
1 This means the note "becomes payable to bearer and may be negotiated by transfer of possession alone . . .
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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-5406-18T3
THE BANK OF NEW YORK MELLON, f/k/a THE BANK OF NEW YORK, AS TRUSTEE FOR THE CERTIFICATEHOLDERS OF THE CWALT, INC., ALTERNATIVE LOAN TRUST 2007-HY7C MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2007-HY7C,
Plaintiff-Respondent,
v.
DENNIS RINKER,
Defendant-Appellant,
and
MRS. DENNIS RINKER, his wife, DENISE EVANS and SHORE MEMORIAL HOSPITAL,
Defendants. ____________________________ Submitted September 21, 2020 – Decided October 14, 2020
Before Judges Hoffman and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. F- 025425-17.
Dennis Rinker, appellant pro se.
Frenkel Lambert Weiss Weisman & Gordon, LLP, attorneys for respondent (Timothy Ziegler, on the brief).
PER CURIAM
Defendant Dennis Rinker appeals the August 31, 2018 order granting
summary judgment to plaintiff and the May 20, 2019 final foreclosure judgment.
We are not persuaded by defendant's arguments that plaintiff lacked standing to
foreclose and did not comply with the Fair Foreclosure Act (FFA), N.J.S.A.
2A:50-53 to -68.
In 2007, defendant signed a $146,000 note to Countrywide Bank, FSB
(Countrywide) for a residential property in Egg Harbor Township. Defendant
also executed a mortgage to Mortgage Electronic Registration Systems (MERS)
as nominee for Countrywide to secure the note and recorded it. In 2012, the
mortgage was assigned by MERS to The Bank of New York Mellon f/k/a The
Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc.,
A-5406-18T3 2 Alternative Loan Trust 2007-HY7C Mortgage Pass-Through Certificates, Series
2007-HY7C (plaintiff) and recorded it (the 2012 Assignment). In 2015, MERS,
as nominee for Countrywide, assigned the mortgage to Bank of New York
Mellon, f/k/a the Bank of New York, as Trustee, on Behalf of the Holders of the
Alternative Loan Trust 2007-HY7C, Mortgage Pass Through Certificates Series
2007 HY7C (the 2015 Assignment), and recorded it. A third assignment was
executed in 2016 and recorded in 2017. It was a "gap assignment" to "complete
the chain" from the 2012 Assignment to the 2015 Assignment. This assignment
was from plaintiff to MERS as nominee for Countrywide (the 2016
Assignment).
Defendant defaulted on the note in October 2011 and has not made
payments since then. Plaintiff filed the foreclosure complaint on November 9,
2017. Defendant filed a contesting answer—where he denied most of the
allegations—except he admitted he defaulted on the note and that the whole
amount of it was due. Defendant asserted several affirmative defenses,
including that plaintiff lacked standing.
Plaintiff filed a motion for summary judgment. Relying on a certification
from Cynthia Morrow, a litigation foreclosure specialist employed by the
servicer of plaintiff, plaintiff claimed the original note was in its possession
A-5406-18T3 3 prior to filing the foreclosure complaint, the mortgage was assigned to it and
recorded prior to filing the foreclosure complaint, and that defendant defaulted
on the note and remained in default. Plaintiff alleged the NOI was sent by
regular and certified mail in December 2015.
Defendant's cross-motion to dismiss alleged the statute of limitations
precluded enforcement and plaintiff did not have possession of the note.
Critically, in responding to plaintiff's Statement of Material Facts, defendant
acknowledged the NOI was sent by regular and certified mail on December 15,
2015, and that the 2015 Assignment was from MERS, as nominee for
Countrywide, into plaintiff. Defendant continued to dispute that plaintiff had
possession of the original note. Plaintiff responded by providing a bailee letter
that plaintiff's attorney had possession of the note more than thirty days prior to
filing for foreclosure.
The August 31, 2018 order granted plaintiff's motion for summary
judgment, striking defendant's answer and allowing the case to proceed as
uncontested. Defendant's cross-motion was denied. A final judgment of
foreclosure was entered on May 20, 2019.
On appeal, defendant argues the trial court erred and abused its discretion
by granting summary judgment and denying his cross-motion to dismiss. He
A-5406-18T3 4 contends the NOI was not mailed with a return receipt requested and that
plaintiff lacked standing to foreclose.
"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). A court should 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
matter of law.'" Ibid. (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 528-29 (1995)); see also R. 4:46-2(c). Defendant's arguments lack merit.
Defendant does not dispute he signed the note and mortgage, defaulted on
payment and has not paid the mortgage since October 1, 2011. Rather, he claims
plaintiff lacks standing to foreclose, alleging lack of possession of the note and
a problem with the assignments.
A party seeking to establish its right to foreclose on a 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)). In Deutsche Bank
Tr. Co. Americas v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), we
A-5406-18T3 5 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, 422 N.J. Super. at 216.
Morrow certified the loan records were business records, she was
personally familiar with the subject loan and reviewed the account. Her
certification complied with N.J.R.E. 803(c)(6). See New Century Fin. Servs.,
Inc. v. Oughla, 437 N.J. Super. 299, 326 (App. Div. 2014). She certified
plaintiff was in possession of the note—endorsed in blank 1—prior to filing the
complaint. The bailee letter also confirmed plaintiff's possession of the note
prior to filing the foreclosure complaint.
Defendant disputed plaintiff's possession of the note in his response to
plaintiff's Statement of Material Facts. However, he admitted the 2015
Assignment was from MERS, as nominee of Countrywide, to plaintiff. With
that admission, there was evidence the assignments ran from MERS to plaintiff
(the 2012 Assignment), from plaintiff to MERS as nominee for Countrywide
(the 2016 Assignment), and from MERS, as nominee for Countrywide, to
plaintiff (the 2015 Assignment). Thus, even if possession of the note were not
1 This means the note "becomes payable to bearer and may be negotiated by transfer of possession alone . . . ." N.J.S.A. 12A:3-205(b). A-5406-18T3 6 established based on defendant's admission and Morrow's certification, we agree
with the trial court that plaintiff showed the mortgage was assigned to it and
recorded prior to filing the foreclosure complaint. That was all that was
necessary to show standing.
The FFA requires that a "[n]otice of intention to [foreclose] . . . shall be
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." N.J.S.A. 2A:50-
56(b). Mailing or in person delivery effectuates the notice. Ibid. The NOI is to
be sent before the foreclosure complaint is filed. N.J.S.A. 2A:50-56.
Defendant argues the NOI was not sent certified mail, return receipt
requested as required by the statute. He did not raise this issue previously.
Generally, we "decline to consider questions or issues not properly presented to
the trial court 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." Selective Ins. Co. of Am. v. Rothman,
208 N.J. 580, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973)). Those standards are not met here.
A-5406-18T3 7 If we were to consider the issue, defendant acknowledged in his answer
to plaintiff's Statement of Material Facts that the NOI was sent on December 15,
2015, by regular and certified mail. He did not claim lack of notice. If by chance
the NOI was not sent return receipt requested, he did not claim he was prevented
by this from curing the default. Presumably, the return receipt is for plaintiff to
prove that defendant received the NOI, a fact defendant has not denied.
After carefully reviewing the record and the applicable legal principles,
defendant's further arguments are without sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5406-18T3 8