NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5704-18T3
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, INCORPORATED, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR2,
Plaintiff-Respondent,
v.
DONATO CILENTI,
Defendant-Appellant,
and
MRS. DONATO CILENTI, his wife, ANTONIO CILENTI and MRS. ANTONIO CILENTI, his wife,
Defendants. _______________________________
Submitted August 4, 2020 – Decided September 14, 2020
Before Judges Rothstadt and Firko. On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F- 016650-18.
Ast & Schmidt, PC, attorneys for appellant (Robert L. Schmidt, on the briefs).
Shapiro & DeNardo, LLC, attorneys for respondent (Elizabeth L. Wassall, on the brief).
PER CURIAM
In this residential foreclosure action, defendant Donato Cilenti appeals
from the Chancery Division's March 12, 2019 order granting plaintiff U.S. Bank
National Association's motion for summary judgment and denying defendant's
cross-motion to compel discovery, as well as from the July 22, 2019 final
judgment of foreclosure. In support of her order, the Chancery judge issued a
comprehensive thirteen-page statement of reasons specifically addressing each
of defendant's contentions. In her decision, the judge rejected defendant's
argument that plaintiff's assignment of mortgage was invalid and determined
that, contrary to defendant's contention, there was no issue of fact as to whether
the individual who executed the assignment of mortgage on behalf of the
assignor was authorized to do so.
On appeal, defendant argues that the Chancery judge misapplied the
appropriate standards for summary judgment, inappropriately relied on "hearsay
A-5704-18T3 2 evidence," and, contrary to the judge's findings, there were "genuine issues of
material fact . . . regarding whether plaintiff lacks standing to foreclose." We
find no merit to these contentions and affirm substantially for the reasons stated
by the Chancery judge in her thorough opinion.
The material facts relating to the loan and plaintiff's entitlement to
foreclosure were generally undisputed, except for defendant's challenge to
plaintiff's standing to foreclose under the assignment and defendant's
unsupported denial of default as stated in his opposition to summary judgment.
As the Chancery judge found, the subject note originated in 2005 when Weichert
Financial Services loaned $444,000 to defendant's father, defendant Antonio
Cilenti,1 to use towards his purchase of a home in Randolph. 2 The father secured
payment of the loan with a mortgage that he and defendant signed that named
Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for the
lender, and which encumbered title to the Randolph property.
In March 2018, the father defaulted by failing to make the payment owed
on March 1, 2018, and thereafter. In April 2018, MERS executed an assignment
1 Neither Antonio Cilenti nor his spouse or defendant's spouse are parties to this appeal. 2 It is unclear from the record why Antonio and Donato Cilenti both appear on the mortgage but only the former appears on the note. A-5704-18T3 3 of mortgage in favor of plaintiff, which was recorded on April 17, 2018. Prior
to the filing of the complaint in this action, plaintiff took possession of the note
endorsed in blank. After sending the father, the only debtor under the note, a
notice of intent to foreclose, plaintiff filed this action. On September 17, 2018,
defendant filed his contesting answer. Plaintiff thereafter filed its motion for
summary judgment, which defendant opposed. Defendant also filed a cross-
motion seeking to compel discovery.
Plaintiff's motion for summary judgment was supported by a certification
from Caroline Keitt Courtney, a vice president in charge of loan documentation
for Wells Fargo Bank, N.A., which was servicing the loan on behalf of plaintiff.
The certification set forth the history of the loan and the father's default.
Attached to it were copies of the original note signed by the father as well as the
mortgage signed by both the father and defendant. In addition, a copy of the
original assignment of mortgage to plaintiff was attached to the certification. In
paragraph three of the certification, Courtney certified that plaintiff "has been
in possession of the promissory note since prior to the filing of the foreclosure
complaint and the promissory note is [e]ndorsed in blank." 3
3 In a supporting brief, plaintiff's counsel advised the court that the note was currently in counsel's possession. A-5704-18T3 4 In opposition to plaintiff's motion, defendant's attorney filed a
certification that was also in support of his cross-motion for discovery. In
counsel's certification, he recited the action's procedural history and the extent
to which the parties had exchanged discovery demands and responses. Counsel
then addressed the signature on the assignment of mortgage, noting that it
belonged to John Kealy who was identified on the assignment as an "assistant
secretary" of MERS. Defendant's attorney then explained that he found a
LinkedIn account for Kealy that stated Kealy was an employee of Wells Fargo.
According to counsel, Kealy's signature was acknowledged by Michelle Erin
Wihren who identified Kealy as an "assistant secretary of [MERS]." Counsel
then noted that Wihren also maintained a LinkedIn account stating she was
employed by Wells Fargo. He also noted that the assignment was recorded by
Wells Fargo and was to be returned to its offices. Counsel then explained that
despite his numerous requests for Kealy's employment history and evidence of
his authorization to execute the assignment on behalf of MERS, he had not
received responses to those requests.
In response to defendant's opposition, plaintiff filed a certification from
its counsel addressing defendant's contentions. Attached to the certification was
a copy of a corporate resolution in which MERS appointed Kealy as a "Signing
A-5704-18T3 5 Officer[] . . . authorized to execute the subject Assignment of Mortgage."
Plaintiff also filed a certification from a representative of its loan servicer
attesting to the chain of custody of the subject note.
In the Chancery judge's ensuing written decision, she specifically
addressed defendant's contentions regarding any question about Kealy's
authority to sign the assignment of mortgage. Initially, the judge noted that
there was no dispute that plaintiff was in possession of the original note endorsed
in blank and payable to bearer. Citing to Deutsche Bank Trust Co. Ams. v.
Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), the judge held that plaintiff
established its standing to pursue this foreclosure action by virtue of its
possession of the note.
The judge found that defendant's argument as to Kealy "failed to account
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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-5704-18T3
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, INCORPORATED, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2006-AR2,
Plaintiff-Respondent,
v.
DONATO CILENTI,
Defendant-Appellant,
and
MRS. DONATO CILENTI, his wife, ANTONIO CILENTI and MRS. ANTONIO CILENTI, his wife,
Defendants. _______________________________
Submitted August 4, 2020 – Decided September 14, 2020
Before Judges Rothstadt and Firko. On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F- 016650-18.
Ast & Schmidt, PC, attorneys for appellant (Robert L. Schmidt, on the briefs).
Shapiro & DeNardo, LLC, attorneys for respondent (Elizabeth L. Wassall, on the brief).
PER CURIAM
In this residential foreclosure action, defendant Donato Cilenti appeals
from the Chancery Division's March 12, 2019 order granting plaintiff U.S. Bank
National Association's motion for summary judgment and denying defendant's
cross-motion to compel discovery, as well as from the July 22, 2019 final
judgment of foreclosure. In support of her order, the Chancery judge issued a
comprehensive thirteen-page statement of reasons specifically addressing each
of defendant's contentions. In her decision, the judge rejected defendant's
argument that plaintiff's assignment of mortgage was invalid and determined
that, contrary to defendant's contention, there was no issue of fact as to whether
the individual who executed the assignment of mortgage on behalf of the
assignor was authorized to do so.
On appeal, defendant argues that the Chancery judge misapplied the
appropriate standards for summary judgment, inappropriately relied on "hearsay
A-5704-18T3 2 evidence," and, contrary to the judge's findings, there were "genuine issues of
material fact . . . regarding whether plaintiff lacks standing to foreclose." We
find no merit to these contentions and affirm substantially for the reasons stated
by the Chancery judge in her thorough opinion.
The material facts relating to the loan and plaintiff's entitlement to
foreclosure were generally undisputed, except for defendant's challenge to
plaintiff's standing to foreclose under the assignment and defendant's
unsupported denial of default as stated in his opposition to summary judgment.
As the Chancery judge found, the subject note originated in 2005 when Weichert
Financial Services loaned $444,000 to defendant's father, defendant Antonio
Cilenti,1 to use towards his purchase of a home in Randolph. 2 The father secured
payment of the loan with a mortgage that he and defendant signed that named
Mortgage Electronic Registration Systems, Inc. (MERS) as nominee for the
lender, and which encumbered title to the Randolph property.
In March 2018, the father defaulted by failing to make the payment owed
on March 1, 2018, and thereafter. In April 2018, MERS executed an assignment
1 Neither Antonio Cilenti nor his spouse or defendant's spouse are parties to this appeal. 2 It is unclear from the record why Antonio and Donato Cilenti both appear on the mortgage but only the former appears on the note. A-5704-18T3 3 of mortgage in favor of plaintiff, which was recorded on April 17, 2018. Prior
to the filing of the complaint in this action, plaintiff took possession of the note
endorsed in blank. After sending the father, the only debtor under the note, a
notice of intent to foreclose, plaintiff filed this action. On September 17, 2018,
defendant filed his contesting answer. Plaintiff thereafter filed its motion for
summary judgment, which defendant opposed. Defendant also filed a cross-
motion seeking to compel discovery.
Plaintiff's motion for summary judgment was supported by a certification
from Caroline Keitt Courtney, a vice president in charge of loan documentation
for Wells Fargo Bank, N.A., which was servicing the loan on behalf of plaintiff.
The certification set forth the history of the loan and the father's default.
Attached to it were copies of the original note signed by the father as well as the
mortgage signed by both the father and defendant. In addition, a copy of the
original assignment of mortgage to plaintiff was attached to the certification. In
paragraph three of the certification, Courtney certified that plaintiff "has been
in possession of the promissory note since prior to the filing of the foreclosure
complaint and the promissory note is [e]ndorsed in blank." 3
3 In a supporting brief, plaintiff's counsel advised the court that the note was currently in counsel's possession. A-5704-18T3 4 In opposition to plaintiff's motion, defendant's attorney filed a
certification that was also in support of his cross-motion for discovery. In
counsel's certification, he recited the action's procedural history and the extent
to which the parties had exchanged discovery demands and responses. Counsel
then addressed the signature on the assignment of mortgage, noting that it
belonged to John Kealy who was identified on the assignment as an "assistant
secretary" of MERS. Defendant's attorney then explained that he found a
LinkedIn account for Kealy that stated Kealy was an employee of Wells Fargo.
According to counsel, Kealy's signature was acknowledged by Michelle Erin
Wihren who identified Kealy as an "assistant secretary of [MERS]." Counsel
then noted that Wihren also maintained a LinkedIn account stating she was
employed by Wells Fargo. He also noted that the assignment was recorded by
Wells Fargo and was to be returned to its offices. Counsel then explained that
despite his numerous requests for Kealy's employment history and evidence of
his authorization to execute the assignment on behalf of MERS, he had not
received responses to those requests.
In response to defendant's opposition, plaintiff filed a certification from
its counsel addressing defendant's contentions. Attached to the certification was
a copy of a corporate resolution in which MERS appointed Kealy as a "Signing
A-5704-18T3 5 Officer[] . . . authorized to execute the subject Assignment of Mortgage."
Plaintiff also filed a certification from a representative of its loan servicer
attesting to the chain of custody of the subject note.
In the Chancery judge's ensuing written decision, she specifically
addressed defendant's contentions regarding any question about Kealy's
authority to sign the assignment of mortgage. Initially, the judge noted that
there was no dispute that plaintiff was in possession of the original note endorsed
in blank and payable to bearer. Citing to Deutsche Bank Trust Co. Ams. v.
Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), the judge held that plaintiff
established its standing to pursue this foreclosure action by virtue of its
possession of the note.
The judge found that defendant's argument as to Kealy "failed to account
for the legal reality surrounding MERS." Quoting from Bank of N.Y. v.
Raftogianis, 418 N.J. Super. 323, 348 (Ch. Div. 2010), the judge explained that
MERS "does not have any real interest in the underlying debt or the mortgage,"
and MERS's role is simply "to facilitate assignments and save money for
lenders." Drawing an inference from defendant's reliance on Kealy's LinkedIn
page, the judge explained that "having loan servicer employees (who will
ultimately have the most involvement with a [n]ote and [m]ortgage) execute
A-5704-18T3 6 assignments [on behalf of MERS] facilitates the[] objectives" of processing
assignments and saving costs. For that reason, Kealy's LinkedIn page revealing
he was employed by Wells Fargo and also acted in a limited capacity for MERS
was insufficient to defeat summary judgment or require further discovery.
The judge then went on to address each of defendant's claims about
outstanding discovery and found that his contentions were without merit and
that he "failed to pursue discovery in an expeditious manner." Finally, the judge
addressed each of defendant's asserted affirmative defenses and again found they
too were without any merit. This appeal followed.
In our review of a trial judge's order granting summary judgment, we
apply the same standard applied by the trial judge under "Rule 4:46-2(c) . . .
[t]hat . . . provides that summary judgment, should be granted 'if 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 judgment or order as a matter
of law.'" Inv'rs Bank v. Torres, ____ N.J.___,__ (2020) (slip op. at 27–28)
(citations omitted) (quoting R. 4:46-2(c)). In our de novo review we afford "no
special deference to the legal determinations of the trial court." Ibid. (quoting
A-5704-18T3 7 Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224
N.J. 189, 199 (2016)).
We conclude from our de novo review that the Chancery judge correctly
entered summary judgment in favor of plaintiff substantially for the reasons
stated in her cogent written decision. We only add the following brief comment.
A defendant in a foreclosure action lacks standing to assert that the
assignment of the mortgage to a plaintiff is invalid. Only the parties or third-
party beneficiaries to a contract may enforce its terms. Raftogianis, 418 N.J.
Super. at 350; see also Giles v. Phelan, Hallinan & Schmieg, LLC, 901 F. Supp.
2d 509, 532 (D.N.J. 2012) (finding that the plaintiffs could not challenge the
validity of assignments transferring their mortgage from one holder to another);
Correia v. Deutsche Bank Nat'l Trust Co., 452 B.R. 319, 324–25 (B.A.P. 1st Cir.
2011) (holding that debtors lack standing to argue that assignment of their
mortgage violated service agreement because they were not parties to the
agreement nor third-party beneficiaries thereof). Moreover, as the Chancery
judge found, it was undisputed that the plaintiff possessed the note prior to filing
its complaint in this action and therefore, if there was any defect in the
assignment of mortgage, it was of no moment.
Affirmed.
A-5704-18T3 8