NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0395-22
WELLS FARGO BANK, N.A. AS TRUSTEE FOR BANC OF AMERICA FUNDING CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-5,
Plaintiff-Respondent,
v.
MARSHALL ANTHONY, a/k/a MARSHALL C. ANTHONY, a/k/a MARSHALL COREY ANTHONY,
Defendant-Appellant,
and
MRS. ANTHONY, SPOUSE OF MARSHALL ANTHONY, a/k/a MARSHALL C. ANTHONY, a/k/a MARSHALL COREY ANTHONY, TASCHA ANTHONY, MARINA DISTRICT DEVELOPMENT CO LLC,
Defendants. ________________________________ Submitted January 22, 2024 – Decided May 17, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-009606-19.
Marshall Anthony, appellant pro se.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, attorneys for respondent (Charles H. Jeanfreau, on the brief).
PER CURIAM
Defendant, Marshall Anthony, 1 appeals from an order dismissing
defendants' cross-motion to dismiss the complaint for failure to state a cause of
action pursuant to Rule 4:6-2(e), claiming plaintiff lacked standing to foreclose.
Because we conclude defendants' motion was procedurally untimely, and
plaintiff had standing to foreclosure, we discern no reason to disturb the trial
court's order and affirm.
I.
On December 29, 2006, Marshall Anthony and Tascha Anthony
(defendants) executed a mortgage in favor of Bank of America, N.A. (BoA) in
1 Tascha Anthony did not join in this appeal. A-0395-22 2 the amount of $372,000 for property located in Scotch Plains, NJ 07076 (the
property). To secure the mortgage, defendants executed and delivered a note to
BoA the same day. The mortgage was recorded on January 10, 2007 in Union
County, NJ. On March 29, 2007, BoA assigned the mortgage to Wells Fargo
Bank, N.A., (plaintiff), in the care of Specialized Loan Servicing, LLC
(Specialized Loan). Tron P. Nash, an authorized officer of BoA signed the
assignment on behalf of BoA. The assignment was recorded in Union County
on April 24, 2013.
On January 11, 2018, defendants and Specialized Loan, plaintiff's
mortgage loan servicer, entered into a loan modification agreement. The loan
modification agreement was also recorded in the Union County Clerk’s Office
on January 30, 2018.
On October 14, 2018, Specialized Loan delivered a Notice of Intent to
Foreclose (Notice) to defendants, alerting them they had failed to pay their
monthly payments over the course of several months, advising them they could
cure their default by making a payment in the amount of $27,622.20 by
November 16, 2018, and providing notice of the lender's intention to file a
foreclosure action. The Notice advised that plaintiff was the current owner of
the loan and Specialized Loan, as the mortgage servicer, represented plaintiff.
A-0395-22 3 On May 23, 2019, plaintiff filed a foreclosure complaint against
defendants. Plaintiff's three-count complaint alleged defendants defaulted on
the loan, failed to remit payment after default, and deprived plaintiff of its right
to possession of the property. Plaintiff demanded acceleration of the whole
unpaid principal amount, unpaid interest, advance fees and costs, and possession
of the property.
Defendants filed their answer and affirmative defenses as a self-
represented litigants on April 14, 2020, denying all allegations and challenging
plaintiff's ownership of the original note and mortgage. Defendants claimed
plaintiff lacked standing to bring the foreclosure action because it could not
prove it was the holder of the mortgage and note, did not have physical
possession of the note, or had a valid mortgage assignment.
On June 11, 2021, the trial court granted plaintiff's motion for summary
judgment and transferred the matter to the Office of Foreclosure as uncontested.
The court found the note was assigned to plaintiff on March 29, 2007 and
recorded, plaintiff owned and controlled the underlying debt, and, as a result,
plaintiff had standing to pursue the foreclosure action. It also found plaintiff
was properly identified as the lender and holder of the note by assignment in the
Notice. The court determined defendants defaulted on the note and mortgage,
A-0395-22 4 the note was valid and recorded, plaintiff became the valid holder of the note by
assignment, and plaintiff had the right to the property in satisfaction of the debt.
On June 24, 2021, defendants filed a motion to vacate the June 11, 2021
order, pursuant to R. 4:50-1, alleging the court failed to find BoA transferred
physical possession of the note and mortgage to plaintiff, and failed to find the
assignment was recorded before the foreclosure complaint was filed. The court
denied defendants' motion to vacate. On August 5, 2021, defendants filed a
motion for reconsideration, which the trial court denied on September 10, 2021.
On May 2, 2022, plaintiff filed its motion for final judgment with the
Office of Foreclosure requesting entry of judgment in its favor and relief in the
amount of $721,012.16. Seven days later, defendants filed a cross-motion to
dismiss plaintiff’s complaint for failure to state a claim upon which relief may
be granted pursuant to R. 4:6-2(e). Defendants argued plaintiff's complaint did
not allege it was the holder of the original note instrument, and continued to
claim plaintiff failed to assert it had physical possession of the underlying note.
Defendants also alleged plaintiff failed to submit a certification based on
personal knowledge and relevant admissible evidence, pursuant to R. 1:6-6, to
confirm it had "physical possession" of the note.
A-0395-22 5 The court denied defendants' motion to dismiss for failure to state a claim,
finding defendants had filed an answer to plaintiff's complaint on April 14, 2020,
which barred defendants from belatedly filing a R. 4:6-2(e) motion. The court
also substantively noted plaintiff provided a true copy of the assignment of
mortgage in support of its motions for summary judgment and final judgment.
It reiterated plaintiff had standing to foreclose because it demonstrated it was
the true holder of the note and mortgage, based on the valid and recorded
assignment.
The court entered final judgment against defendants on June 30, 2022,
awarding Wells Fargo $721,012.76 plus interest and $7,360.12 in counsel fees,
and directing a sheriff's sale of the property to satisfy the debt . The court also
barred and foreclosed defendants from all equity of redemption. Defendant
Marshall Anthony filed this appeal on September 9, 2022, contending the trial
court erred in denying the cross-motion.
II.
We apply a de novo standard of review to a trial court order dismissing a
complaint pursuant to Rule 4:6-2(e). Baskin v. P.C. Richard & Son, LLC, 246
N.J. 157, 171 (2021) (citing Dimitrakopoulous v. Borrus, Goldin, Foley,
Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019)). We owe no
A-0395-22 6 deference to the trial court's conclusions. Rezem Fam.
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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-0395-22
WELLS FARGO BANK, N.A. AS TRUSTEE FOR BANC OF AMERICA FUNDING CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-5,
Plaintiff-Respondent,
v.
MARSHALL ANTHONY, a/k/a MARSHALL C. ANTHONY, a/k/a MARSHALL COREY ANTHONY,
Defendant-Appellant,
and
MRS. ANTHONY, SPOUSE OF MARSHALL ANTHONY, a/k/a MARSHALL C. ANTHONY, a/k/a MARSHALL COREY ANTHONY, TASCHA ANTHONY, MARINA DISTRICT DEVELOPMENT CO LLC,
Defendants. ________________________________ Submitted January 22, 2024 – Decided May 17, 2024
Before Judges Gilson and Berdote Byrne.
On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. F-009606-19.
Marshall Anthony, appellant pro se.
Robertson, Anschutz, Schneid, Crane & Partners, PLLC, attorneys for respondent (Charles H. Jeanfreau, on the brief).
PER CURIAM
Defendant, Marshall Anthony, 1 appeals from an order dismissing
defendants' cross-motion to dismiss the complaint for failure to state a cause of
action pursuant to Rule 4:6-2(e), claiming plaintiff lacked standing to foreclose.
Because we conclude defendants' motion was procedurally untimely, and
plaintiff had standing to foreclosure, we discern no reason to disturb the trial
court's order and affirm.
I.
On December 29, 2006, Marshall Anthony and Tascha Anthony
(defendants) executed a mortgage in favor of Bank of America, N.A. (BoA) in
1 Tascha Anthony did not join in this appeal. A-0395-22 2 the amount of $372,000 for property located in Scotch Plains, NJ 07076 (the
property). To secure the mortgage, defendants executed and delivered a note to
BoA the same day. The mortgage was recorded on January 10, 2007 in Union
County, NJ. On March 29, 2007, BoA assigned the mortgage to Wells Fargo
Bank, N.A., (plaintiff), in the care of Specialized Loan Servicing, LLC
(Specialized Loan). Tron P. Nash, an authorized officer of BoA signed the
assignment on behalf of BoA. The assignment was recorded in Union County
on April 24, 2013.
On January 11, 2018, defendants and Specialized Loan, plaintiff's
mortgage loan servicer, entered into a loan modification agreement. The loan
modification agreement was also recorded in the Union County Clerk’s Office
on January 30, 2018.
On October 14, 2018, Specialized Loan delivered a Notice of Intent to
Foreclose (Notice) to defendants, alerting them they had failed to pay their
monthly payments over the course of several months, advising them they could
cure their default by making a payment in the amount of $27,622.20 by
November 16, 2018, and providing notice of the lender's intention to file a
foreclosure action. The Notice advised that plaintiff was the current owner of
the loan and Specialized Loan, as the mortgage servicer, represented plaintiff.
A-0395-22 3 On May 23, 2019, plaintiff filed a foreclosure complaint against
defendants. Plaintiff's three-count complaint alleged defendants defaulted on
the loan, failed to remit payment after default, and deprived plaintiff of its right
to possession of the property. Plaintiff demanded acceleration of the whole
unpaid principal amount, unpaid interest, advance fees and costs, and possession
of the property.
Defendants filed their answer and affirmative defenses as a self-
represented litigants on April 14, 2020, denying all allegations and challenging
plaintiff's ownership of the original note and mortgage. Defendants claimed
plaintiff lacked standing to bring the foreclosure action because it could not
prove it was the holder of the mortgage and note, did not have physical
possession of the note, or had a valid mortgage assignment.
On June 11, 2021, the trial court granted plaintiff's motion for summary
judgment and transferred the matter to the Office of Foreclosure as uncontested.
The court found the note was assigned to plaintiff on March 29, 2007 and
recorded, plaintiff owned and controlled the underlying debt, and, as a result,
plaintiff had standing to pursue the foreclosure action. It also found plaintiff
was properly identified as the lender and holder of the note by assignment in the
Notice. The court determined defendants defaulted on the note and mortgage,
A-0395-22 4 the note was valid and recorded, plaintiff became the valid holder of the note by
assignment, and plaintiff had the right to the property in satisfaction of the debt.
On June 24, 2021, defendants filed a motion to vacate the June 11, 2021
order, pursuant to R. 4:50-1, alleging the court failed to find BoA transferred
physical possession of the note and mortgage to plaintiff, and failed to find the
assignment was recorded before the foreclosure complaint was filed. The court
denied defendants' motion to vacate. On August 5, 2021, defendants filed a
motion for reconsideration, which the trial court denied on September 10, 2021.
On May 2, 2022, plaintiff filed its motion for final judgment with the
Office of Foreclosure requesting entry of judgment in its favor and relief in the
amount of $721,012.16. Seven days later, defendants filed a cross-motion to
dismiss plaintiff’s complaint for failure to state a claim upon which relief may
be granted pursuant to R. 4:6-2(e). Defendants argued plaintiff's complaint did
not allege it was the holder of the original note instrument, and continued to
claim plaintiff failed to assert it had physical possession of the underlying note.
Defendants also alleged plaintiff failed to submit a certification based on
personal knowledge and relevant admissible evidence, pursuant to R. 1:6-6, to
confirm it had "physical possession" of the note.
A-0395-22 5 The court denied defendants' motion to dismiss for failure to state a claim,
finding defendants had filed an answer to plaintiff's complaint on April 14, 2020,
which barred defendants from belatedly filing a R. 4:6-2(e) motion. The court
also substantively noted plaintiff provided a true copy of the assignment of
mortgage in support of its motions for summary judgment and final judgment.
It reiterated plaintiff had standing to foreclose because it demonstrated it was
the true holder of the note and mortgage, based on the valid and recorded
assignment.
The court entered final judgment against defendants on June 30, 2022,
awarding Wells Fargo $721,012.76 plus interest and $7,360.12 in counsel fees,
and directing a sheriff's sale of the property to satisfy the debt . The court also
barred and foreclosed defendants from all equity of redemption. Defendant
Marshall Anthony filed this appeal on September 9, 2022, contending the trial
court erred in denying the cross-motion.
II.
We apply a de novo standard of review to a trial court order dismissing a
complaint pursuant to Rule 4:6-2(e). Baskin v. P.C. Richard & Son, LLC, 246
N.J. 157, 171 (2021) (citing Dimitrakopoulous v. Borrus, Goldin, Foley,
Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019)). We owe no
A-0395-22 6 deference to the trial court's conclusions. Rezem Fam. Assocs., LP v. Borough
of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2011).
On appeal, defendant argues the trial court abused its discretion in its
review of his cross-motion to dismiss because its "decision was 'made without a
rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis.'" (quoting US Bank Nat. Ass’n v. Guillaume, 209
N.J. 449, 467 (2012)). Defendant reiterates his arguments that plaintiff's May
23, 2019 complaint, motion papers, and proofs do not allege it had ownership or
control of the note, or was an entity that was permitted to enforce the instrument
within the meaning of N.J.S.A. 12A:3-301. He continues to argue plaintiff
failed to plead it was in possession of the original note and the current note was
endorsed in blank. Additionally, he maintains plaintiff failed to prove the note
was negotiated by and transferred to plaintiff.
Defendant appeals only from the trial court's denial of his motion to
dismiss plaintiff's complaint pursuant to R. 4:6-2(e). A party may move to
dismiss a complaint pursuant to R. 4:6-2(e) for failure to state a claim upon
which relief can be granted. However, the motion must be made before a
responsive pleading is filed. "If a motion is made raising . . . [this] defense[], it
shall be made before pleading if a further pleading is to be made." R. 4:6-2. We
A-0395-22 7 have previously stated "the enumerated defenses that can be raised by motion
may also be raised in an answer." Allstate N.J. Ins. Co. v. Cherry Hill Pain &
Rehab. Inst., 389 N.J. Super. 130, 137 (App. Div. 2006). Defendant could have
raised this defense, and did raise it, in his answer and again in opposition to
summary judgment. Once he filed an answer containing the same defense,
defendant was precluded from filing a R. 4:6-2(e) motion, as the trial court
correctly concluded. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on
R. 4:6–2 (2024).
Moreover, defendant's continued assertion that plaintiff lacked standing
to foreclose is belied by the record. It is well established a party demonstrates
standing to foreclose if it establishes it has physical 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) (quoting
Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 224-25 (App. Div.
2011)).
As the court noted, plaintiff had standing to commence the foreclosure
action both because it attached a true copy of the note, endorsed by BoA, to its
complaint, and because it had possession of the endorsed note as the holder in
due course pursuant to N.J.S.A. 12A:3-301 and N.J.S.A. 12A:3-205(b). Wells
A-0395-22 8 Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011); Deutsche
Bank Nat’l Trust Co. v. Mitchell, 422 N.J. Super. at 214. Wells Fargo recorded
the assignment on April 24, 2013.
An assignee can establish standing to foreclose by presenting a properly
"authenticated assignment indicating that it was assigned the note before it filed
the original complaint." Ford, 418 N.J. Super. at 225.
Here, BoA assigned all of its rights, title and interest in the mortgage ,
together with the note, to Wells Fargo, N.A. Plaintiff established a prima facie
case for foreclosure because it demonstrated, through its certified true copy of
the note and mortgage assignment, it had standing. The assignment was signed
and recorded more than ten years before plaintiff filed its foreclosure complaint.
The trial court correctly denied defendant's motion to dismiss because it
was not brought timely, and because it had already correctly found plaintiff had
standing to bring this foreclosure action.
Affirmed.
A-0395-22 9