U.S. BANK NATIONAL ASSOCIATION VS. GERALDINE WISHNIA AND (F-047973-10, MORRIS COUNTY AND STATEWIDE)

CourtNew Jersey Superior Court Appellate Division
DecidedSeptember 7, 2018
DocketA-1706-16T4
StatusUnpublished

This text of U.S. BANK NATIONAL ASSOCIATION VS. GERALDINE WISHNIA AND (F-047973-10, MORRIS COUNTY AND STATEWIDE) (U.S. BANK NATIONAL ASSOCIATION VS. GERALDINE WISHNIA AND (F-047973-10, MORRIS COUNTY AND STATEWIDE)) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
U.S. BANK NATIONAL ASSOCIATION VS. GERALDINE WISHNIA AND (F-047973-10, MORRIS COUNTY AND STATEWIDE), (N.J. Ct. App. 2018).

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1706-16T4

U.S. BANK NATIONAL ASSOCIATION as Trustee for GSR 2006-6F,

Plaintiff-Appellant,

v.

GERALDINE WISHNIA, BRUCE WISHNIA, a/k/a BRUCE J. WISHNIA, 148 PLEASANTVILLE ROAD LLC, PARADIGM CREDIT CORP, SEDONA CAPITAL, LTD., and T. GARY GUTJAHR,

Defendants-Respondents,

and

MORTGAGE ELECTRONIC REGISTRATION SYSTEM INC. ("MERS") AS NOMINEE FOR COUNTRYWIDE BANK, N.A., and STATE OF NEW JERSEY,

Defendants. ____________________________________

Argued May 17, 2018 – Decided September 7, 2018

Before Judges Simonelli, Haas and Gooden Brown.

On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F-047973-10. David F. Pustilnik (Winston & Strawn, LLP) of the Illinois State bar, admitted pro hac vice, argued the cause for appellant (Winston & Strawn, LLP, attorneys; Heather E. Saydah on the briefs).

Jaimee L. Katz Sussner argued the cause for respondents Paradigm Credit Corp. and Sedona Capital Ltd. (Sills Cummis & Gross, PC, attorneys; Jaimee L. Katz Sussner and Michael S. Carucci, on the brief).

Carey A. Aquilina argued the cause for respondents Geraldine Wishnia, Bruce J. Wishnia and 148 Pleasantville Road, LLC (Eugene P. Brinn, attorney, joins in the brief of respondents Paradigm Credit Corp. and Sedona Capital Ltd.).

Edward Rogan & Associates, LLC, attorneys for respondent T. Gary Gutjahr (Edward T. Rogan, of counsel; Celia S. Bosco, on the brief).

PER CURIAM

Plaintiff U.S. Bank National Association appeals from the

September 16, 2016 Chancery Division order granting summary

judgment to defendants Paradigm Credit Corp. and Sedona Capital,

LTD. (collectively, the Paradigm defendants), and dismissing its

foreclosure complaint with prejudice. Plaintiff also appeals from

the December 2, 2016 order denying their motion for

reconsideration. We affirm.

We derive the following facts from evidence submitted by the

parties in support of, and in opposition to, the summary judgment

2 A-1706-16T4 motion, viewed in the light most favorable to plaintiff. Brill

v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995).

On March 29, 2006, Bruce and Geraldine Wishnia executed a

promissory note to Countrywide Bank, N.A., for the sum of $2

million. To secure the note, the Wishnias executed a mortgage

(the first mortgage) on the same date in favor of Mortgage

Electronic Registration Systems, Inc. (MERS), as nominee for

Countrywide, encumbering property located on Pleasantville Road

in Harding, New Jersey. The first mortgage was recorded on April

18, 2006 in the Morris County Clerk's Office in mortgage book

20479, page 134.

On May 1, 2006, the Wishnias executed a second promissory

note to Countrywide for the sum of $1 million. To secure that

note, the Wishnias executed a mortgage (the second mortgage) on

the same date in favor of MERS as nominee for Countrywide,

encumbering the same property. On May 11, 2006, the second

mortgage was recorded in the Morris County Clerk's Office in

mortgage book 20507, page 1574.

On February 5, 2007, the Wishnias executed a third promissory

note to Countrywide for the sum of $1.5 million. To secure the

note, the Wishnias executed a mortgage (the third mortgage) on the

same date in favor of MERS as nominee for Countrywide, encumbering

the same property. On February 21, 2007, the third mortgage was

3 A-1706-16T4 recorded in the Morris County Clerk's Office in mortgage book

20749, page 0508.

On March 15, 2007, MERS executed a Discharge of Mortgage,

which was recorded on April 3, 2007, that "canceled and void[ed]"

"[a] certain mortgage dated [May 1, 2006]" "to secure payment of

[$2 million dollars]" and "recorded . . . in mortgage book . . .

20479 on page 134." Although the discharge referenced the date

of the second mortgage, it identified the amount and recording

information of the first mortgage. As a result, the first mortgage

was cancelled.

On March 14, 2013, MERS executed a second Discharge of

Mortgage, cancelling the third mortgage. The discharge

acknowledged receipt of "full payment and satisfaction of the

same," and was recorded on March 26, 2013, in mortgage book 22285,

page 0470. On January 9, 2014, MERS executed a third Discharge

of Mortgage, cancelling the second mortgage. The discharge

acknowledged that "the [m]ortgage has been [paid in full] or

otherwise [satisfied]" and was recorded on January 10, 2014 in

mortgage book 22481, page 1328.

On September 21, 2010, intending to assign the first mortgage

that had been discharged on March 15, 2007, MERS assigned to

plaintiff the mortgage recorded on May 11, 2006, in mortgage book

20507, page 1574, in the amount of $1 million dollars, which

4 A-1706-16T4 information corresponded with the second mortgage. The assignment

was recorded on January 26, 2011. At that time, the second

mortgage had not yet been discharged.

After the assignment, on September 30, 2010, plaintiff filed

a foreclosure complaint, and on November 8, 2010, recorded a lis

pendens in the county clerk's office in Book 21660, page 716, due

to the Wishnia's failure to make payments on the first mortgage

on April 1, 2010 and thereafter. The foreclosure complaint listed

the date and amount of the first mortgage, but the recording

information of the second mortgage. The corresponding lis pendens

listed the date and recording information of the second mortgage

and had no indicators of the first mortgage.

Attached to the foreclosure complaint was a certification of

counsel, certifying that a title search of the public records was

made for the purpose of identifying any lien holders or interested

persons or entities with an interest in the property. However,

the foreclosure complaint did not plead or otherwise disclose that

the first mortgage had, in fact, been discharged on March 15,

2007. On December 20, 2013, the foreclosure complaint was

dismissed without prejudice for lack of prosecution.

After all three mortgages were discharged, the Wishnias

conveyed title to their property, by deed dated July 30, 2014 and

recorded on September 8, 2014, to their wholly owned entity, 148

5 A-1706-16T4 Pleasantville Road LLC (148 Pleasantville). On that same date,

148 Pleasantville executed two promissory notes totaling $1.8

million in favor of the Paradigm defendants, secured by a first

priority mortgage in the amount of $1.8 million (the Paradigm

mortgage) encumbering the same property. The Paradigm mortgage

was recorded on September 8, 2014.

On July 7, 2015, plaintiff moved to reinstate the foreclosure

complaint. In a November 9, 2015 order, the motion judge granted

plaintiff's motion, in part, allowing plaintiff to reinstate the

foreclosure action and "correct the recording information for the

[m]ortgage" contained in the complaint and the lis pendens, nunc

pro tunc. However, the judge denied plaintiff's requests to vacate

the discharge of the first mortgage, reinstate the first mortgage,

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