WELLS FARGO BANK, N.A. VS. CECILLE JARRETT (F-016118-15, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 25, 2018
• Docket: A-0364-16T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0364-16T4

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

CECILLE JARRETT, individually and as executrix of the estate of ADVIRA WALLACE, DECEASED,

Defendant-Appellant,

and

MR. JARRETT, husband of Cecille Jarrett; MIDDLESEX COUNTY COLLEGE OF NURSING; STATE OF NEW JERSEY and UNITED STATES OF AMERICA,

Defendants. ___________________________________

Submitted October 30, 2017 – Decided June 25, 2018

Before Judges Ostrer and Rose.

On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-016118-15.

Cecille Jarrett, appellant pro se.

Reed Smith LLP, attorneys for respondent (Henry F. Reichner, of counsel and on the brief; Brian P. Matthews, on the brief). PER CURIAM

In this mortgage foreclosure appeal, defendant Cecille

Jarrett appeals from the trial court's order granting summary

judgment to plaintiff Wells Fargo Bank, N.A. As we discern no

genuine issues of material fact regarding Wells Fargo's right to

foreclose, we affirm.

On February 5, 2002, Advira Wallace borrowed $144,000 from

Weichert Financial Services (WFS) to purchase a residential

property in Piscataway. The thirty-year note was secured by a

mortgage on the property in favor of Mortgage Electronic

Registration Systems, Inc., as WFS's nominee. Wallace died in

2008, and her daughter Jarrett took title. On April 27, 2012, WFS

assigned the mortgage to Wells Fargo. The assignment was recorded

five days later.

Jarrett presents no competent evidence to dispute Wells

Fargo's contention, based on its payment records, that the loan

has been in default since January 1, 2013. On April 18, 2013,

Wells Fargo served its notice of intention to foreclose, asserting

a total net delinquency of $5,261.79. After Jarrett sought

bankruptcy protection, Wells Fargo obtained an order vacating the

automatic stay. Shortly thereafter, Wells Fargo filed its

foreclosure complaint. The Vice President of loan documentation

2 A-0364-16T4 certified that before filing the foreclosure complaint, Wells

Fargo possessed the note, which was indorsed in blank.

The following year, Wells Fargo filed its summary judgment

motion. Jarrett opposed the motion and cross-moved to dismiss the

complaint. On May 2, 2016, the trial court granted Wells Fargo's

motion, and denied defendant's cross-motion. In a written

statement of reasons, Judge Frank M. Ciuffani noted that Wells

Fargo, as a holder of the note, possessed standing to enforce the

note. This was evidenced by the vice president of loan

documentation's certification. This appeal followed.

We review the trial court's grant of summary judgment de

novo, applying the same standard that governs the trial court.

Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).

"[T]he appellate court should first decide whether there was a

genuine issue of material fact, and if none exists, then decide

whether the trial court's ruling on the law was correct." Ibid.

We extend no special deference to the trial court's legal

determinations. Ibid. However, we deferentially review the trial

court's evidentiary decisions. Estate of Hanges v. Metro. Prop.

& Cas. Ins. Co., 202 N.J. 369, 382 (2010); MacKinnon v. MacKinnon,

191 N.J. 240, 253-54 (2007).

"The only material issues in a foreclosure proceeding are the

validity of the mortgage, the amount of the indebtedness, and the

3 A-0364-16T4 right of the mortgagee to resort to the mortgaged premises." Great

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

aff'd, 273 N.J. Super. 542 (App. Div. 1994). Jarrett presents no

competent evidence to contest the first two elements. Rather, she

argues Wells Fargo lacked standing. She contends that is so

because: Fannie Mae, not Wells Fargo, owns the mortgage note;

Wells Fargo presented insufficient proof it possessed the note

when it filed its complaint; and the assignment of the mortgage

was invalid. We reject these arguments.

It is by now well settled that generally "either possession

of the note or an assignment of the mortgage that predate[s] the

original complaint confer[s] standing." Deutsche Bank Trust Co.

Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). Here,

Wells Fargo met both prerequisites.1

Through an appropriate certification of counsel, Wells Fargo

presented to the court a true and accurate copy of the filed

assignment of the mortgage by MERS, as WFS's nominee, to Wells

1 We recognize that the court in Capital One, N.A. v. Peck, ___ N.J. Super. ___, ___ (App. Div. 2018) (slip op. at 7), held in a case in which the Federal Home Loan Mortgage Corporation, also known as "Freddie Mac," owned the loan, that possession of the note and a valid assignment must precede a complaint. The court still affirmed the foreclosure where the servicer did not possess the note, on equitable grounds. Id. at 8-9. However, as we discuss, Wells Fargo both possessed the note and was an assignee of the mortgage.

4 A-0364-16T4 Fargo. Jarrett contends the assignment is invalid "because Fannie

Mae is still the owner, holder, and controller of the mortgage

instruments." We need not reach Wells Fargo's argument that

Jarrett lacks standing to challenge the assignment's validity.2

At most, Jarrett presents evidence – in the form of a "lookup" on

Fannie Mae's website – that Fannie Mae owned the loan, although

the website also stated that the servicer may physically possess

the mortgage note. The website printout says nothing about control

of the mortgage. Thus, Jarrett's evidence falls short of

establishing that MERS, on behalf of WFS, lacked authority to

assign the mortgage, or that the assignment was otherwise invalid.

Furthermore, according to an admissible certification of

Wells Fargo's vice president for loan documentation, Wells Fargo

possessed the note before it filed its complaint. That provides

an alternative basis for Wells Fargo's standing. Deutsche Bank

Trust Co. Ams., 428 N.J. Super. at 318. Jarrett's challenge to

the certification itself is meritless. Furthermore, even if Fannie

Mae owned the loan, that did not deprive Wells Fargo of standing

to foreclose. "As a general proposition, a party seeking to

2 Therefore, we need not address whether a third party has standing to challenge a void assignment, even if he or she lacks standing to challenge a voidable assignment. See, e.g. Yvanova v. New Century Mortg. Corp., 365 P.3d 845, 848 (Cal. 2016); Mruk v. Mortg. Elec. Registration Sys., 82 A.3d 527, 536-37 (R.I. 2013).

5 A-0364-16T4 foreclose a mortgage must own or control the underlying debt."

Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214,

222 (App. Div. 2011) (emphasis added); See also N.J.S.A. 12A:3-

301 (stating that a person may enforce a note if the person is a

holder, a non-holder in possession with rights of the holder, or

it is entitled to enforce pursuant to N.J.S.A. 12A:3-309, or

N.J.S.A. 12A:3-418(d), even if not in possession of the

instrument).

To the extent not addressed, defendant's remaining arguments

lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

6 A-0364-16T4