WILMINGTON SAVINGS FUND SOCIETY, FSB, ETC. VS. RAJIV VAISH (F-031856-16, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 13, 2019
• Docket: A-2613-17T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2613-17T2

WILMINGTON SAVINGS FUND SOCIETY, FSB, d/b/a CHRISTIANA TRUST, not individually but as trustee for PRETIUM MORTGAGE ACQUISITION TRUST,

Plaintiff-Respondent,

v.

RAJIV VAISH a/k/a RAJIV K. VAISH,

Defendant-Appellant,

and

SANMATI VAISH, his wife; SANMATI JAIN, STATE OF NEW JERSEY, and UNITY BANK,

Defendants. _______________________________

Submitted January 14, 2019 – Decided February 13, 2019

Before Judges Gooden Brown and Rose. On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F- 031856-16.

Rajiv Vaish, appellant pro se.

Shapiro & Denardo LLC, attorneys for respondent (Chandra M. Arkema, on the brief).

PER CURIAM

In this residential mortgage foreclosure action, defendant Rajiv Vaish

appeals from three Chancery Division orders: (1) a June 1, 2017 order granting

summary judgment to plaintiff, Wilmington Savings Fund Society, FSB, d/b/a

Christiana Trust, Not Individually but as Trustee for Pretium Mortgage

Acquisition Trust, and striking his answer; (2) a December 1, 2017 order

overruling his objection to final judgment; and (3) a December 28, 2017 order,

entering final judgment of foreclosure. We affirm.

We derive the following facts from the record. On May 16, 2003,

defendant's wife, Sanmati Vaish, 1 executed a thirty-year note in the amount of

$650,000 to America's Wholesale Lender (America's). To secure payment of

the note, on the same date, Sanmati executed a purchase money mortgage to

America's, encumbering residential property located in Warren. The mortgage

1 Sanmati is not a party to this appeal. We refer to her by her first name to avoid any confusion caused by their common surname and intend no disrespect. A-2613-17T2 2 was recorded in the Somerset County Clerk's Office on May 23, 2003. On the

same date, the deed to the property was recorded in the Somerset County Clerk's

Office, showing that both Sanmati and defendant took title to the property

despite the fact that defendant had not executed either the note or the mortgage .

After a series of assignments, all of which were duly recorded, the

mortgage was ultimately assigned to plaintiff on July 15, 2016, and the

assignment was recorded on October 18, 2016. 2 Sanmati defaulted on the loan

by failing to make the June 1, 2010 payment or any payments thereafter. Over

thirty days after Sanmati was sent a Notice of Intent to Foreclose (NOI), plaintiff

filed a two-count foreclosure complaint against Sanmati and defendant 3 on

November 29, 2016. On December 30, 2016, defendant filed a contesting

answer containing numerous affirmative defenses, including challenging

2 Specifically, a June 15, 2006 assignment to the Bank of New York as Trustee under the Pooling and Servicing Agreement Series 2003-14 was recorded on June 26, 2006; a March 27, 2015 assignment to NRZ Mortgage Holdings LLC was recorded on April 8, 2015; and a March 27, 2015 assignment to New Residential Mortgage Loan Trust 2014-1, U.S. Bank National Association, as Indenture Trustee was recorded on April 8, 2016. Additionally, an August 3, 2016 corrective assignment to NRZ Mortgage was recorded on October 18 , 2016, to replace the April 8, 2015 recordation of the assignment. 3 The complaint also named other defendants believed to be holders of an interest subordinate to plaintiff's mortgage lien.

A-2613-17T2 3 plaintiff's "standing," asserting that the claim was "barred by the [s]tatute of

[l]imitations," and alleging that the "[s]ubject property was deeded to

[d]efendant subsequent to May 16, 2003[,]" and "[d]efendant did not [m]ortgage

his interest in the property."4

On February 10, 2017, plaintiff filed an amended complaint, adding a third

count for foreclosure based on an equitable mortgage. In count three of the

complaint, plaintiff alleged that although the "[o]riginal [m]ortgagee had a

[n]ote and [m]ortgage drawn in accordance with the agreement of the parties[,]"

the "[o]riginal [m]ortgagee inadvertently failed to include [defendant] as a

named mortgagor" and, as a result, the "[m]ortgage and [n]ote were never

executed by [defendant]." Nonetheless, plaintiff alleged defendant was "an

intended mortgagor" and "has received the benefit of the loan transaction . . .

since the proceeds . . . were utilized to purchase the premises to which [Sanmati

and defendant] hold title" and defendant "had actual knowledge of the existence

of [the] loan transaction." Defendant filed an amended contesting answer.

On April 27, 2017, plaintiff moved for summary judgment, or an order

striking defendant's answer, entering default, and transferring the case to the

Office of Foreclosure to proceed as an uncontested matter under Rule 4:64-9.

4 Sanmati did not file an answer. A-2613-17T2 4 Defendant filed no opposition to the motion. To support its motion, plaintiff

submitted a certification by Lucy Babik, the Contested Foreclosure Specialist of

Selene Finance, LP (Selene), plaintiff's servicing agent. Babik certified that

"[i]n the regular performance of [her] job functions," she was "familiar with

[the] business records maintained by the company." According to Babik, these

records were "made at or near the time . . . , or from information provided by[]

persons with knowledge of the activity and transactions reflected in such

records, and [were] kept in the course of business activity conducted regularly

by the company." Further, Babik averred that she "acquired personal

knowledge" of the matters contained in her certification "by examining the

business records relating to the subject mortgage loan." She annexed "printouts"

and copies of the pertinent "documents" to her certification, including the note,

mortgage, assignment of mortgage, and NOI.

Additionally, Babik certified that "[p]laintiff ha[d] been in possession of

the [p]romissory [n]ote since prior to the filing of the foreclosure complaint and

remain[ed] in possession" to date. She also stated that "[b]y [a]ssignment of

[m]ortgage recorded October 18, 2016, the [m]ortgage was assigned to

[plaintiff]," prior to the filing of the complaint. She averred further that Sanmati

defaulted on the loan by "fail[ing] to make the June 1, 2010 payment[,] . . . the

A-2613-17T2 5 loan remain[ed] in default[,]" and a compliant NOI "was mailed to [Sanmati]

. . . at least thirty days before the filing of the [c]omplaint for foreclosure."

Plaintiff's counsel also submitted a supporting certification, providing a true

copy of the deed whereby Sanmati and defendant took title to the subject

property on May 15, 2003.

In a June 1, 2017 order and written decision, Judge Margaret Goodzeit

granted plaintiff's motion in its entirety. The judge found the mortgage executed

by Sanmati "equitably enforced against [defendant] and/or reformed as if

[defendant] had executed the document creating an equitable lien upon the

property[,] and foreclosing all of [his] right, title[,] and interest in the mortgaged

premises." The judge granted plaintiff summary judgment, struck defendant's

answer, entered default against defendant and Sanmati, and "permitted

[plaintiff] to proceed uncontested before the . . . Office of Foreclosure, for entry

of [f]inal [j]udgment per [Rule] 4:64."

In adjudicating the motion, the judge considered the pleadings and the

submissions, including the certifications submitted in support of plaintiff's

summary judgment motion. As to the Babik certification, the judge concluded

that the "certification complie[d] with [Rule] 1:6-6 as it [was] based on the

affiant's personal knowledge, after personally reviewing the relevant business

A-2613-17T2 6 records in addition to personally reviewing the documents attached to the

certification." Further, the judge determined that the certification complied

"with the business records exception to the hearsay rule[,] [Rule] 803(c)(6)[,]"

inasmuch as the affiant "established that she reviewed the business records

maintained by the mortgage company in [the] regular course of business,

including various transactional documents prepared by the lender." Thus, the

judge found the certification complied with Rule 4:64-2(c)(2), which specifies

the proofs required in an affidavit submitted in support of a mortgage

foreclosure application.

Turning to the merits, first, the judge addressed the principles applicable

to an equitable mortgage and explained that "[a]n equitable mortgage may be

created by a court when the defect is either formal, such as a lack of notary

acknowledgement, or substantial, such as when a real owner in title to the

property did not execute the mortgage." See 29 N.J.Practice, Law of Mortgages

§ 9.3 (Myron C. Weinstein) (2d ed. 2001). The judge acknowledged that "[a]

court must not look to the form of the mortgage, but whether it was the intent of

the parties to create a mortgage." See Manfredi v. Manfredi, 12 N.J. Super. 207,

211 (Ch. Div. 1951). According to the judge, "[e]xpress words are not required

for a court to create an equitable mortgage." See J.W. Pierson Co. v. Freeman,

A-2613-17T2 7 113 N.J. Eq. 268, 270-71 (E. & A. 1933). Rather, "[w]here a mortgage does not

involve a transfer of title, an equitable mortgage is created if: (1) there is an

intent to give property as security for satisfaction of a current obligation; and

(2) the property is adequately described to the exclusion of all other real estate."

See Manfredi, 12 N.J. Super. at 211; see also Rutherford Nat'l Bank v. H.R.

Bogle & Co., 114 N.J. Eq. 571, 579 (Ch. Div. 1933).

The judge reasoned:

Here, [defendant] is the record owner of the mortgaged premise[s] as evidenced by the [d]eed, executed on May 15, 2003. . . . On May 16, 2003, Sanmati . . . executed the [n]ote, which was secured by a purchase money [m]ortgage of even date. Plaintiff indicates that it was the parties' intent to include [defendant] as a signing party to the subject [m]ortgage, but for some unknown error and/or unintended omission, [defendant] was excluded from the [m]ortgage document. Plaintiff indicates that [defendant] was only able to obtain possessory interest to the subject property by way of plaintiff's [d]eed, [n]ote, and [m]ortgage. Plaintiff further indicates that permitting [defendant] to retain [the] benefit of the subject property without subordinating his interest to the [m]ortgage would unjustly enrich [defendant] at the expense of plaintiff. The [c]ourt is convinced that [defendant] would not have possessory interest in the property by way of the May 2003 [d]eed, but for the purchase money [m]ortgage and [n]ote. As such, it was the intent of the parties to include [defendant] on the [m]ortgage. The plaintiff would be deprived of its equitable remedy to enforce the [n]ote against both defendants on the deed, unless [defendant] is added as

A-2613-17T2 8 [a] borrower on the [m]ortgage. The [c]ourt further notes that defendants have failed to oppose this request. Thus, plaintiff's application to include [defendant] to the 2003 [m]ortgage based on equity is hereby granted.

Next, the judge laid out the material issues in the case, Great Falls Bank

v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542,

545 (App. Div. 1994) ("[t]he only material issues in a foreclosure proceeding

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

of the mortgagee to resort to the mortgaged premises"); the prima facie elements

of a foreclosure case, Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App.

Div. 1952) ("[when] the execution, recording, and non-payment of the mortgage

[were established], a prima facie right to foreclosure was made out"); and the

standing requirements, Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super.

315, 318 (App. Div. 2012) ("either possession of the note or an assignment of

the mortgage that predated the original complaint conferred standing") (citing

Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 216 (App. Div.

2011)).

Based on the proofs, the judge concluded that plaintiff made "the requisite

showing," defendant submitted no "competent proofs indicating that the facts

[were] not as [plaintiff] assert[ed,]" and, pursuant to Rule 4:46-2(c), "there

[were] no genuine issue[s] of material fact as to the matter[s] challenged" that

A-2613-17T2 9 precluded granting plaintiff summary judgment. Specifically, as to plaintiff's

standing, the judge found that plaintiff "provided a copy of the subject [n]ote,

which [was] [e]ndorsed in blank and in the possession of the plaintiff" prior to

the filing of the foreclosure complaint. According to the judge,

[i]f the [n]ote is endorsed in blank, an effective physical transfer of the note confers authority to enforce because "a nonholder in possession of the instrument who has the rights of a holder" may enforce an instrument. See [N.J.S.A.] 12A:3-301 and [N.J.S.A.] 12A:3-203(a).

....

Here, . . . . [p]laintiff's possession of the original [n]ote by itself renders the plaintiff at the very least a "nonholder in possession with the rights of a holder" . . . . Further, plaintiff was assigned the [m]ortgage by [a]ssignment of [m]ortgage executed July 15, 2016[,] and recorded October 18, 2016, prior to the November 29, 2016 filing of plaintiff's [c]omplaint. . . . The [c]ourt notes that any break in chain of title was cured by the [c]orrective [a]ssignment of [m]ortgage, executed on August 3, 2016. . . . As such, plaintiff is the "record holder of the mortgage as established by the latest record of assignment" and has standing to foreclose pursuant to [N.J.S.A.] 46:18-13 and [N.J.S.A.] 12A:3-203(b). Accordingly, plaintiff has sufficient standing to prosecute this foreclosure action.

As to plaintiff's demonstration of a prima facie right to foreclose, the judge

explained:

[P]laintiff has produced proof that the [m]ortgage was recorded. . . . [D]efendant . . . is added to the

A-2613-17T2 10 [m]ortgage as borrower based on equity. The [n]ote and [m]ortgage appear to be validly executed, the defendants defaulted on their obligations under the [m]ortgage and [n]ote, and the [m]ortgage explicitly asserts plaintiff's right to the mortgaged premises. . . . Thus, plaintiff has established the three required elements: the execution of a [m]ortgage, the proper recording of said [m]ortgage, and indebtedness. The defendant does not raise any genuine issues of material fact concerning the three required elements. Thus, plaintiff has established a [prima facie] right to foreclose.

Turning to defendant's answer, the judge noted that "[u]nder [Rule] 4:64-

1(c)(2), an answer to a foreclosure complaint is deemed to be uncontesting if

none of the pleadings responsive to the complaint either contest the validity or

priority of the mortgage . . . being foreclosed or create an issue with respect to

plaintiff's right to foreclose it." According to the judge, Rule 4:46-5(a) provides

that when a motion for summary judgment is made, "an adverse party may not

rest upon the mere allegations or denials of the pleading, but must respond by

affidavits . . . , setting forth specific facts showing that there is a genuine issue

for trial." However, here, defendant "filed an [a]nswer which denie[d] each

allegation of the [c]omplaint" but "[n]o supporting facts [were] provided."

The judge continued,

[f]urther, the defendant has attempted to defend against foreclosure by asserting twenty (20) separate affirmative defenses, all of which are threadbare

A-2613-17T2 11 recitations of defenses which may be applicable in a foreclosure action. However, not one of these affirmative defenses [is] supported by any specific factual basis, nor is there any indication how they are applicable to the case at bar. . . . The [c]ourt also notes that the instant foreclosure is within the statute of limitations under [N.J.S.A.] 2A:50-56.1(c), since the [c]omplaint was filed within twenty years from the date on which the debtor defaulted. 5

Moreover, the defendant has not opposed the instant motion, and thus has not provided a certification nor a scintilla of evidence in support of his claims. . . . [I]t is clear that defendant's [a]nswer fails to state any defenses that may be maintained against plaintiff.

Thereafter, plaintiff moved for final judgment, supported by a "proof of

amount due affidavit and schedule" prepared by Evan Shafer, a foreclosure team

leader for Selene. Defendant objected, certifying that "[p]laintiff misstated" the

amount due and "failed to produce the [supporting] business records[.]" In a

December 1, 2017 order and written decision, Judge Goodzeit "overruled"

defendant's objection and "returned [the matter] to the Office of Foreclosure"

for "the entry of final judgment."

5 See also Security Nat. Partners Ltd. v. Mahler, 336 N.J. Super. 101, 108 (App. Div. 2000) (addressing the question of whether a six-year or twenty-year statute of limitations applied to mortgage foreclosure actions and holding that "[t]here is a twenty[-]year limitation period governing institution of a mortgage foreclosure suit."). A-2613-17T2 12 Distinguishing Bank v. Kim, 361 N.J. Super. 331, 341-42 (App. Div.

2003), the judge rejected defendant's claim that plaintiff was required to produce

the supporting business records. According to the judge,

those business records are required to be produced if the [c]ourt finds that the filed proofs raise facial questions as to the amount due. Kim involved an amended judgment in which the second filed proof of amount due substantially deviated from the proof of amount filed a year before. 361 [N.J. Super.] at 341. This case presents no clear facial question and defendant has offered no evidence or argument to raise such doubt. Accordingly, plaintiff was not required to produce the business records relied upon in its certification. Finally, as to any boilerplate argument raised in defendant's brief, plaintiff's certification does identify the affiant's position and explains the source of his knowledge. Accordingly, defendant's challenge to the certification on those grounds is meritless.

On December 28, 2017, final judgment for foreclosure was entered, and this

appeal followed.

On appeal, defendant argues the judge erred in granting plaintiff summary

judgment and overruling his objection to the entry of final judgment.

Specifically, defendant asserts the judge incorrectly applied a twenty-year,

rather than a six-year, statute of limitations; erroneously concluded that plaintiff

had standing to file the foreclosure action when there was "a broken chain of

title[;]" and erred in concluding that the Babik certification submitted in support

A-2613-17T2 13 of summary judgment and the Shafer affidavit submitted in support of final

judgment were compliant. We disagree.

We review a grant of summary judgment applying the same standard used

by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366

(2016). "Summary judgment is appropriate where the evidence fails to show a

genuine issue as to any material fact challenged and the moving party is entitled

to judgment as a matter of law." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,

299 (App. Div. 2009) (citing R. 4:46-2(c)). In reviewing summary judgment

motions, we "view the 'evidential materials . . . in the light most favorable to the

non-moving party[.]'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div.

2014) (first alteration in original) (quoting Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 540 (1995)). However, "an adverse party may not rest upon

the mere allegations or denials of the pleading . . . [to show] that there is a

genuine issue for trial." R. 4:46-5(a).

Further, it is "well settled that '[b]are conclusions in the pleadings without

factual support in tendered affidavits, will not defeat a meritorious application

for summary judgment.'" Cortez, 435 N.J. Super. at 606 (alteration in original)

(quoting Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div.

1999)). Additionally, all sufficiently supported material facts will be deemed

A-2613-17T2 14 admitted for purposes of the motion unless "specifically disputed" by the party

opposing the motion. R. 4:46-2(b). In uncontested mortgage foreclosure cases,

"[t]he application for entry of judgment shall be accompanied by proofs as

required by [Rule] 4:64-2." R. 4:64-1(d)(1). Under Rule 4:64-2(a), the proofs

"may be submitted by affidavit, unless the court otherwise requires."

Rule 4:64-2(b) specifically delineates the required contents of the

"affidavit of amount due" filed by plaintiff in support of the entry of final

judgment, which affidavit "may be supported by computer-generated entries."

Rule 4:64-2(c) requires the affiant to certify "that he or she is authorized to make

the affidavit on behalf of the plaintiff or the plaintiff's mortgage loan servicer; "

"that the affidavit is made based on a personal review of business records of the

plaintiff or the plaintiff's mortgage loan servicer, which records are maintained

in the regular course of business;" "that the financial information contained in

the affidavit is accurate;" and "that the default remains uncured." Any

objections to the amount due must state "with specificity the basis of the

dispute[.]" R. 4:64-1(d)(3). See also Mony Life Ins. Co. v. Paramus Parkway

Bldg., Ltd., 364 N.J. Super. 92, 106 (App. Div. 2003) (concluding that no

hearing was warranted where defendant failed to offer conflicting proof or

establish a contested fact to be resolved).

A-2613-17T2 15 After careful review of the record, we find no merit to any of defendant's

arguments and affirm substantially for the reasons set forth by Judge Goodzeit

in her comprehensive and well-reasoned written decisions.

Affirmed.

A-2613-17T2 16