THE BANK OF NEW YORK MELLON, ETC. VS. PHONG N. TRAN (F-014048-16, BURLINGTON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 5, 2019
• Docket: A-0910-17T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0910-17T2

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 2006-45TI, MORTGAGE PASS- THROUGH CERTIFICATES, SERIES 2006-45T1,

Plaintiff-Respondent,

v.

PHONG N. TRAN and CHARLOTTE L. TRAN, husband and wife,

Defendants-Appellants,

and

SUN TRUST BANK and STATE OF NEW JERSEY,

Defendants,

PHONG N. TRAN and CHARLOTTE L. TRAN, husband and wife, Third-Party Plaintiffs,

AMERICA'S WHOLESALE LENDER and THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK, THE BANK OF NEW YORK MELLON f/k/a THE BANK OF NEW YORK AS TRUSTEE FOR SECURITIZED TRUST ALTERNATIVE LOAN TRUST 2006-45T1; COUNTRYWIDE HOME LOANS, INC.; CWALT, INC.; COUNTRYWIDE HOME LOANS SERVICING, LP; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS a/k/a "MERS",

Third-Party Defendants. __________________________________________

Submitted December 4, 2018 – Decided February 5, 2019

Before Judges Rothstadt and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-014048-16.

Tran & Tran Law Firm, LLC, attorneys for appellants (Phong N. Tran, on the brief).

Mattleman, Weinroth & Miller, PC, attorneys for respondent (Robert W. Williams, on the brief).

PER CURIAM

A-0910-17T2 2 In this residential foreclosure matter, defendants Phong N. and Charlotte

L. Tran appeal from a September 12, 2017 final judgment and a May 15, 2017

order striking their contesting answer and affirmative defenses, dismissing their

counterclaims and third-party complaint, and entering default against them.

Defendants argue that plaintiff, the Bank of New York Mellon (the Bank ),1

failed to establish that it was the holder of the note, or the assignee of the

mortgage, and therefore lacked standing to foreclose. Defendants also argue

that the Chancery court misapplied the law concerning the rights of a holder in

due course.

Defendants made these same arguments before the Chancery court and

Judge Paula T. Dow analyzed and correctly rejected those arguments in a written

opinion issued on May 15, 2017. We affirm for the reasons explained in Judge

Dow's thorough opinion.

The Bank submitted competent evidence establishing that (1) defendant

Phong N. Tran borrowed over $609,000, (2) he executed a promissory note and

mortgage, (3) the mortgage was recorded, (4) defendants defaulted on the note

1 The Bank's full name is The Bank of New York Mellon, formerly known as The Bank of New York, as Trustee for the Certificate holders of the CWALT, Inc., Alternative Loan Trust 2006-45TI, Mortgage Pass-Through Certificates, Series 2006-45TI. A-0910-17T2 3 in May 2011, and have not made payments since that default, (5) the mortgage

was assigned to the Bank in August 2011, (6) that assignment was recorded, and

(7) the Bank took possession of the note and was the holder of the note when it

instituted the foreclosure action against defendants. Those facts were

established by a certification from an individual with personal knowledge.

Judge Dow correctly found that the certification was both competent and

admissible. See R. 1:6-6; N.J.R.E. 803(c)(6).

Judge Dow correctly ruled the Bank had standing to pursue the foreclosure

action as it was both the assignee of the mortgage and the holder of the note.

See, e.g., Capital One, NA v. Peck, 455 N.J. Super. 254, 258 (App. Div. 2018);

Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 223 (App. Div.

2011). Moreover, Judge Dow considered, but rejected defendants' affirmative

defenses, counterclaims, and third-party complaint for various legal reasons. In

that regard, Judge Dow analyzed the affirmative defenses, counterclaims, and

claims against third parties that were not merely conclusory and explained in

her written decision why those claims and defenses lacked merit as a matter of

law. Having reviewed those rulings de novo, we agree with each of Judge Dow's

rulings.

Affirmed.

A-0910-17T2 4