WELLS FARGO BANK, N.A. VS. JEFFREY M. BISCHOFF(F-018494-14, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: August 30, 2017
• Docket: A-2294-15T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2294-15T1

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

JEFFREY M. BISCHOFF and CINDY PERLUMUTTER a/k/a CINDY BISCHOFF, wife of JEFFREY M. BISCHOFF; and MR. PERLUMUTTER, husband of CINDY PERLUMUTTER,

Defendants-Appellants.

_____________________________

Submitted August 22, 2017 – Decided August 30, 2017

Before Judges Manahan and Gilson.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-018494-14.

Jeffrey M. Bischoff, appellant pro se.

Reed Smith, LLP, attorneys for respondent (Henry F. Reichner, of counsel and on the brief).

PER CURIAM In this mortgage foreclosure action, defendant Jeffrey M.

Bischoff appeals from a September 22, 2015 order denying his motion

to dismiss the complaint and an October 28, 2015 final judgment

of foreclosure. We affirm.

In 2001, Bischoff and his wife, Cindy Perlumutter, borrowed 1 $300,000 from Wells Fargo Bank West, N.A. (Wells Fargo West). In

connection with that loan, Bischoff and Perlumutter (collectively

defendants) signed a promissory note and gave a mortgage on a home

they owned in Bergenfield, New Jersey. In 2003, Wells Fargo West

was consolidated into, and became part of, Wells Fargo Bank, N.A.

(Wells Fargo). Thus, Wells Fargo became the holder of defendants'

note and mortgage.

In January 2012, defendants failed to pay the monthly

installment payment due on the loan and, thereafter, defendants

have been in default on the loan. Wells Fargo sent defendants a

notice of its intent to foreclose in September 2013, but defendants

failed to cure the default or respond to the notice. Thus, on May

8, 2014, Wells Fargo filed a complaint in foreclosure against

defendants.

Defendants were served with the foreclosure complaint on

March 12, 2015, but they failed to respond. Accordingly, a default

1 Cindy Perlumutter also uses the name Cindy Bischoff.

2 A-2294-15T1 was entered on May 18, 2015. Wells Fargo then sent defendants a

notice of entry of default and a notice in accordance with Section

6 of the New Jersey Fair Foreclosure Act (Act), N.J.S.A. 2A:50-53

to -68. Defendants did not respond to those notices.

In July 2015, Wells Fargo filed, and sent to defendants, a

certification of diligent inquiry and accuracy of foreclosure

documents and factual assertions in compliance with Rule 4:64-2(d)

and Rule 1:4-8(a). Thereafter, Wells Fargo moved for entry of a

judgment. The following month, Bischoff filed opposition to the

motion for entry of a judgment and cross-moved to "dismiss" Wells

Fargo's complaint.2

The Chancery Division denied Bischoff's motion in an order

entered on September 22, 2015. In an accompanying written

statement of reasons, the Chancery court explained that it was

treating Bischoff's motion as a motion to vacate a default, which

it denied because Bischoff failed to show good cause to vacate the

default.

2 Bischoff filed his motion on August 25, 2015, but Wells Fargo did not file its motion for entry of judgment until September 9, 2015. This discrepancy in timing apparently resulted from the fact that Wells Fargo gave notice of its intent to move for entry of judgment before it actually filed the motion with the court.

3 A-2294-15T1 Thereafter, on October 28, 2015, a final judgment of

foreclosure was entered. Bischoff now appeals from the denial of

his motion and the entry of the final judgment.

On appeal, Bischoff, who is self-represented, makes a number

of arguments. Although he phrases his arguments in different

ways, Bischoff is really making one contention: He claims that

Wells Fargo did not have standing to sue because it did not own

the note or possess the mortgage when it filed the foreclosure

complaint. Having reviewed the record, we find no merit in this

argument and we thus affirm.

To bring an action in foreclosure, a plaintiff must possess

either the note or an assignment of the mortgage. Deutsche Bank

Trust Co. Am. v. Angeles, 428 N.J. Super. 315, 319-20 (App. Div.

2012). Here, Wells Fargo filed papers establishing that defendants

executed a promissory note and mortgage in favor of Wells Fargo

West. In 2003, Wells Fargo West was consolidated into, and became

part of, Wells Fargo. Consequently, Wells Fargo stands in the

shoes of Wells Fargo West with regard to both the note and the

mortgage and has the right to enforce the mortgage. See Suser v.

Wachovia Mortg., FSB, 433 N.J. Super. 317, 321 (App. Div. 2013)

(explaining that the right to enforce a mortgage can arise from

the ownership of assets acquired through merger and acquisition).

Accordingly, Bischoff's standing argument lacks merit.

4 A-2294-15T1 Bischoff makes reference to a number of other arguments,

including contentions concerning unjust results under the Act,

what federal courts have done in foreclosure actions, and various

court rules. None of those arguments is supported by recognized

legal authority as applied to the facts in this case. Moreover,

none of those arguments has sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

5 A-2294-15T1