BANK OF AMERICA, NA VS. KIM DAVIS (F-019820-16, OCEAN COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4946-17T2
BANK OF AMERICA, N.A.,
Plaintiff-Respondent,
v.
KIM DAVIS,
Defendant-Appellant,
and
MR. DAVIS, husband of KIM DAVIS,
COLUMBIA PRES DEP OF NUERO,
CITY OF NEWARK, ANSELL ZARO
GRIMM & AARON PC, THRIFT
INVESTMENT CORPORATION, ABC
BAIL BONDS INC., STATE OF NEW
JERSEY, UNITED STATES OF
AMERICA, and FOX CHASE BANK,
Defendants.
_________________________________
Submitted June 4, 2019 – Decided July 8, 2019
Before Judges Rothstadt and Natali.
On appeal from the Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. F-
019820-16.
Kim Davis, appellant pro se.
Parker McCay, PA, attorneys for respondent (Eugene
R. Mariano, of counsel; Stacy L. Moore, Jr., on the
brief).
PER CURIAM
In this residential mortgage foreclosure matter, defendant Kim Davis
appeals from the final judgment of foreclosure entered on May 21, 2018 after
Judge Francis R. Hodgson, Jr. earlier granted summary judgment to plaintiff,
Bank of America, N.A., on April 13, 2017, striking defendant's answer and
defenses. Defendant also challenges the order granting summary judgment and
an April 28, 2017 order denying her cross-motion to dismiss the complaint. 1 In
addition, she appeals from the judge's May 11, 2018 order denying her second
motion to dismiss plaintiff's complaint that included her objection to the amount
due sought by plaintiff. Finding no merit to defendant's arguments, we affirm.
1
The order granting summary judgment and striking defendant's answer and
defenses was dated April 13, 2017 and the order denying defendant's cross -
motion to dismiss the complaint was dated April 28, 2017. Both orders were
filed on April 28, 2017.
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2
In her opposition to plaintiff's summary judgment motion, defendant
asserted challenges to plaintiff's standing and argued: (a) plaintiff failed to make
a prima facie showing that there were no genuine issues of material fact, (b)
plaintiff failed to properly notify her when its loan servicer was engaged by
plaintiff; (c) it failed to include a chain of title in its discovery; (d) the complaint
was time-barred under N.J.S.A. 2A:50-56.1(a); and, (e) the certification of
plaintiff's loan servicer's officer that it filed in support of summary judgment
was insufficient because it did not establish plaintiff's right to enforce the note
and mortgage.
On April 28, 2017, Judge Hodgson placed on the record his detailed
findings of fact and conclusions of law addressing each of defendant's
contentions. When he issued his May 11, 2018 order fixing the amount due,
Judge Hodgson also issued a comprehensive oral decision explaining his
findings and addressing each of defendant's challenges to plaintiff's right to
maintain this action.
On appeal, defendant contends that Judge Hodgson improperly granted
summary judgment to plaintiff because: (a) plaintiff is not a holder in due
course; (b) plaintiff failed to provide admissible proof as to when it obtained
and maintained possession of the original note; (c) plaintiff's action was filed
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outside the statute of limitations under N.J.S.A. 2A:50-56.1(a); (d) the copy of
the original note produced by plaintiff was materially altered; (e) "reasonable
inferences" established that plaintiff did not obtain the note "in due course,"
thereby violating defendant's "constitutional rights"; (f) plaintiff's evidence was
inadmissible; (g) discovery was not complete; (h) her cross-claims should not
have been dismissed; (i) the credit report she offered as evidence that plaintiff
acknowledged her note was paid should have been considered by the judge; and
(j) plaintiff violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§§ 1692 to 1692p, and committed other deceptive acts, as well as fraud.
We review a court's grant of summary judgment de novo, applying the
same standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346 (2017).
Summary judgment must be granted "if 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." Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (quoting R. 4:46-2(c)).
We conclude from the record that the material facts are not in dispute. On
June 14, 2007, defendant executed a $355,000 note with American Mortgage
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Network, Inc. (AMN). She also executed a mortgage with Mortgage Electronic
Registration System Inc. (MERS) as nominee for AMN and its successors and
assigns. The mortgage was recorded on June 25, 2007 and the note was to be
paid off in its entirety by July 1, 2037. Defendant defaulted on May 1, 2009.
On August 10, 2009, MERS, as AMN's nominee, assigned the mortgage
to plaintiff as successor by merger to Countrywide Bank, FSB. The assignment
was recorded on August 25, 2009.
In February 2016 plaintiff sent defendant a Notice of Intention to
Foreclose under the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -68. Plaintiff
filed its complaint on July 18, 2016. At the time and prior to commencing its
action against defendant, plaintiff was the holder of both the note and the
mortgage.
Turning to defendant's contentions on appeal, we have considered them in
light of our de novo review of the record and applicable legal principles and
conclude that they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Hodgson's factual
findings concerning all of defendant's contentions are fully supported by the
record and, in light of those facts, his legal conclusions are unassailable. We
therefore affirm the final judgment of foreclosure and each of the orders und er
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review substantially for the reasons expressed by the judge in his thorough oral
decisions.
Affirmed.
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