U.S. BANK NATIONAL ASSOCIATION, ETC. VS. VICTOR COSTA (F-051349-14, ESSEX COUNTY AND STATEWIDE) (CONSOLIDATED)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 13, 2019
• Docket: A-4718-17T1/A-0404-18T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 NOS. A-4718-17T1 A-0404-18T1

U.S. BANK NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee for THE RMAC TRUST, SERIES 2016-CTT,

Plaintiff-Respondent,

v.

VICTOR COSTA, his heirs, devisees and personal representatives and his, their or any of their successors in right, title and interest; JORGE COSTA, SOPHIA ALVESDE BARROS- COSTA, MR. ALEXANDRA COSTA, husband of ALEXANDRA COSTA, STATE OF NEW JERSEY, FRANCIS GRANGER, CONTINENTAL TRADING & HARDWARE, TD BANK, N.A., NEW MILLENNIUM BANK, JEFFREY W. YEAGER, GERALD A. YEAGER, and AFCO ELECTRIC CO., INC.,

Defendants,

and ALEXANDRA COSTA,

Defendant-Appellant. _____________________________

Submitted July 9, 2019 – Decided August 13, 2019

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F- 051349-14.

Alexandra Costa, appellant pro se.

Pluese, Becker & Saltzman, LLC, attorneys for respondent (Stuart H. West, on the briefs).

PER CURIAM

In this residential mortgage foreclosure action, defendant Alexandra Costa

appeals from Chancery Division orders denying her motions to vacate the final

judgment and to set aside the sheriff's sale. We have consolidated these back-

to-back matters for purposes of the opinion. We affirm.

I.

In July 2007, defendant executed a note in the amount of $410,000 in favor

of Bank of America, N.A. (Bank of America). To secure payment on the note,

both defendant and Victor Costa executed a mortgage securing the debt with the

A-4718-17T1 2 property located at 39 Fillmore Street in Newark. The mortgage was recorded

on August 1, 2007.

On February 1, 2009, defendant and Victor Costa failed to make the

requisite payment on the note.1 No payments have been made on the loan since

that date.

In November 2012, Bank of America assigned the mortgage to Nationstar

Mortgage, LLC (Nationstar). The assignment was recorded on December 31,

2012.2

Nationstar filed a foreclosure complaint in December 2014. Nationstar

then assigned the mortgage to plaintiff. On February 1, 2017, the court granted

leave for plaintiff to substitute for Nationstar in the foreclosure action. The

court granted an order of default before issuing final judgment and a writ of

execution in July 2017.

Six months later, defendant made her first appearance in the matter, filing

a motion to vacate final judgment. The chancery court denied the motion.

1 Victor Costa passed away in 2011. 2 The record indicates the assignment was recorded a second time on April 4, 2013. A-4718-17T1 3 A sheriff's sale was eventually conducted in July 2018. Plaintiff

purchased the property at the auction for $100.

Defendant later filed a motion objecting to the sale, which the court

viewed as a motion to set aside the sale. The court denied the motion in

September 2018. Defendant then filed the appeals under review, seeking

reversal of the orders denying her motions to vacate the final judgment and to

set aside the sheriff's sale.

II.

In a mortgage foreclosure proceeding, the court must determine three

issues: "the validity of the mortgage, the amount of the indebtedness" and

default, and the right of the party to foreclose on the mortgaged property. Great

Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J.

Super. 542 (App. Div. 1994). "As a general proposition, a party seeking to

foreclose a mortgage must 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)).

Absent a showing of ownership or control, a "plaintiff lacks standing to proceed

with the foreclosure action and the complaint must be dismissed." Ibid. (quoting

Ford, 418 N.J. Super. at 597).

A-4718-17T1 4 A plaintiff establishes standing by demonstrating "either possession of the

note or an assignment of the mortgage that predated the original complaint . . .

." Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div.

2012) (citing Mitchell, 422 N.J. Super. at 216).

Nationstar, the original plaintiff in the action, received the mortgage via

an assignment executed on November 7, 2012 and recorded the following

month. Therefore, Nationstar possessed an assignment of the mortgage at the

time it filed its complaint on December 8, 2014. Plaintiff then received the

mortgage via a subsequent assignment, and later filed a motion to substitute for

Nationstar as plaintiff. Defendant did not oppose the motion. Thus, plaintiff

had standing to proceed with the foreclosure.

Defendant argues the record does not state how plaintiff received the

mortgage assignment. However, this argument is irrelevant. As the chancery

judge explained, a third party cannot challenge the transfer of a mortgage. See

Ross v. Lowitz, 222 N.J. 494, 513 (2015) (quoting Broadway Maint. Corp. v.

Rutgers, 90 N.J. 253, 259 (1982)).

Defendant also argues the chancery court wrongly upheld the sheriff's

sale. We review motions to set aside a sheriff's sale for an abuse of discretion.

United States v. Scurry, 193 N.J. 492, 502-03 (2008). To set aside a sale, we

A-4718-17T1 5 require a showing of fraud, accident, surprise or mistake, irregularities in the

sale, or other similar circumstances. See R. 4:50-1; Karel v. Davis, 122 N.J. Eq.

526, 528 (E & A 1937).

Defendant claims that a lack of proof of the sheriff's sale demonstrates

irregularities that require the sale to be vacated. Essentially, defendant attacks

the validity of the sale, arguing she did not receive adequate proof the sale

occurred. She frames this alleged inadequate proof as an "irregularity" in the

sale.

Defendant's claim lacks merit as she fails to identify any circumstances to

justify an order vacating the judgment, under Rule 4:50-1. The record on appeal

contains a Report of Sale and a copy of the Sheriff's Deed to plaintiff. This

proof of the sale is sufficient for us to conclude the chancery court did not abuse

its discretion.

Affirmed.

A-4718-17T1 6