U.S. NATIONAL BANK ASSOCIATION, AS INDENTURE TRUSTEE ON BEHALF OF AND WITH RESPECT TO AJAX MORTGAGE LOAN VS. WILLIAM MARLER (F-009930-17, OCEAN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 23, 2020
• Docket: A-5291-18T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5291-18T2

U.S. NATIONAL BANK ASSOCIATION, AS INDENTURE TRUSTEE ON BEHALF OF AND WITH RESPECT TO AJAX MORTGAGE LOAN TRUST 2018-B, MORTGAGE-BACKED NOTES,

Plaintiff-Respondent,

v.

WILLIAM MARLER,

Defendant-Appellant,

and

DANIELLE MARLER,

Defendant. _____________________________

Submitted May 28, 2020 – Decided June 23 2020

Before Judges Koblitz and Mawla.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-009930-17.

William Marler, appellant pro se.

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

PER CURIAM

Defendant William Marler 1 appeals from a July 18, 2019 final foreclosure

judgment in the amount of $511,336.77. He argues the court erred in granting

summary judgment and disputes the amount of the judgment, raising issues

relating to the Notice of Intent to Foreclose (NOI) and the calculation of the late

fees. Because we do not find those arguments persuasive, we affirm.

The "party seeking to foreclose a mortgage must own or control the

underlying debt." Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597

(App. Div. 2011) (quoting Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323,

327-28 (Ch. Div. 2010)). Standing is conferred by "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).

1 Co-defendant Danielle Marler is not a party to the appeal. A-5291-18T2 2 "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).

On November 11, 2004, defendant executed a $317,300 adjustable rate

note at 7.25 percent, securitized by a property in Toms River. The loan was

transferred to various institutions.

Defendant failed to pay on August 1, 2012, or thereafter. A new loan

servicer became effective January 20, 2012. The NOI was sent on November 7,

2012, via certified and regular mail, stating that $21,011.96 was needed to bring

the loan current. The foreclosure complaint was not filed until April 21, 2017.

Plaintiff, U.S. National Bank Association, as Indenture Trustee on Behalf of and

with Respect to Ajax Mortgage Loan Trust 2018-B, Mortgage-Backed Notes

(US Bank), was substituted as plaintiff by order on January 9, 2019.

A-5291-18T2 3 Defendant claims on appeal that the NOI did not comply with the Fair

Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68, and plaintiff violated the

Home Ownership Security Act (HOSA), N.J.S.A. 46:10B-22 to -35, by

overcharging late fees. Defendant alleges plaintiff calculated late fees in excess

of the five percent statutory cap, N.J.S.A. 46:10B-25(d)(1), and improperly

charged more than one late fee with respect to a single payment, N.J.S.A.

46:10B-25(d)(3). Although defendant defaulted on his payments in August

2012, plaintiff calculated late fees only on twenty-four missed payments from

September 2014 through February 2017.2

It is unclear what evidence defendant believes supports his claim of unfair

late fees. He seems to think that plaintiff is only allowed to charge a single late

fee for one month, no matter how many months have passed.

Defendant also claims that plaintiff's NOI was defective in that a new NOI

should have been sent within a reasonable time of the filing of the foreclosure

complaint and the NOI served did not contain accurate information as to the

identity of the lender. Indeed, a 2019 statute requires service of the NOI within

2 It is unclear why no late fees were charged between August 2012 and September 2014 or between September 2015 and May 2016. A-5291-18T2 4 six months of the foreclosure complaint. N.J.S.A. 2A:50-56(g). Moreover,

N.J.S.A. 2A:50-56(c)(11) requires that the NOI include:

the name and address of the lender and the telephone number of a representative of the lender whom the debtor may contact if the debtor disagrees with the lender’s assertion that a default has occurred or the correctness of the mortgage lender's calculation of the amount required to cure the default.

A new lender took over after the NOI was served here.

Our Supreme Court has determined that a trial court "fashioning an

equitable remedy" for a statutory violation of the NOI "should consider the

impact of the defect . . . upon the homeowner's information about the status of

the loan, and on his or her opportunity to cure the default." U.S. Bank Nat'l

Ass'n v. Guillaume, 209 N.J. 449, 479 (2012).

The trial court determined that defendant "admits to plaintiff's compliance

with the FFA by sending NOI's. . . . The only issue contested by defendant is

plaintiff's standing." Defendant raised many other issues before the trial court

not raised on appeal.

"In foreclosure matters, equity must be applied to plaintiffs as well as

defendants." Angeles, 428 N.J. Super. at 320. Here, defendant does not dispute

that he did not pay the mortgage for seven years prior to the judgment of

foreclosure. He claims no ignorance of his obligation, nor difficulty in making

A-5291-18T2 5 a payment due to a lack of information. Rather, he argues that the statute should

be strictly enforced. We agree that the statute serves a salutary purpose.

Defendant, however, did not seek to cure his 2012 default at any time. The trial

court equitably granted summary judgment and the amount due awarded by the

trial court is not inflated.

Affirmed.

A-5291-18T2 6