FEDERAL NATIONAL MORTGAGE ASSOCIATION VS. JUDITH MESSINEO(F-7411-13, WARREN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0979-15T3
FEDERAL NATIONAL MORTGAGE
ASSOCIATION,
Plaintiff-Respondent,
v.
JUDITH MESSINEO,
Defendant-Appellant,
and
DOMINIC F. COLETTA; MARY
COLETTA; STATE OF NEW JERSEY;
COUNTY OF MONMOUTH; SYED S.
AHMAD; SYED AHMAD, M.D.;
PLEASANT DENTAL CENTER P.A.;
ADAMAR OF NEW JERSEY, INC.;
GARY AXELRAD, M.D.; COUNTY OF
ATLANTIC; HOSPITAL AND DOCTORS
SERVICE BUREAU; SPIRAS CLOTHING
INC., 600 KINDERKAMACK ROAD
OPERATING COMPANY, L.L.C., d/b/a
ORADELL HEALTH CARE CENTER; and
UNITED STATES OF AMERICA,
Defendants.
____________________________________
Submitted January 31, 2017 – Decided July 3, 2017
Before Judges Suter and Guadagno.
On appeal from Superior Court of New Jersey,
Chancery Division, Warren County, Docket No.
F-7411-13.
Judith Messineo, appellant pro se.
Stern, Lavinthal & Frankenberg, L.L.C.,
attorneys for respondent (Mark S. Winter, of
counsel and on the brief).
PER CURIAM
Defendant Judith Messineo (Messineo)1 appeals a September 12,
2013 order granting summary judgment to plaintiff Federal National
Mortgage Association (Federal National), and an August 20, 2015
final judgment foreclosing her interest in certain residential
real estate. We affirm both orders.
The foreclosure complaint filed by Federal National alleged
that in July 2004, Messineo executed a $93,000 note and a mortgage
to First Horizon Home Loan Corporation (First Horizon). The note
was endorsed in blank. The recorded mortgage was assigned in June
2010 to Mortgage Electronic Registration Systems, Inc. (MERS), as
nominee for First Horizon. It was assigned again in May 2011 by
MERS to Federal National and recorded. Messineo denied execution
of the note and mortgage in her answer.
1
While there are other defendants listed in the foreclosure
complaint, our opinion references Messineo because she is the only
party who has appealed.
2 A-0979-15T3
Messineo defaulted on the note in December 2010. On December
26, 2012, Seterus, Inc. (Seterus), the servicer of the mortgage
loan, sent Messineo a Notice of Intention to Foreclosure (NOI).
The NOI identified Federal National as the owner of the loan and
holder of the mortgage. Although the NOI advised Messineo of the
amount needed to cure the default and her right to do so, the
default was not cured.
Federal National filed a foreclosure complaint against
Messineo and various judgment creditors on March 7, 2013. Messineo
filed an answer with twenty–one affirmative defenses.
Federal National and Messineo exchanged interrogatories.
Federal National responded to the interrogatories Messineo
served.2 However, by July 31, 2013, when Messineo had not served
answers to the interrogatories or notice to produce documents that
Federal National had propounded on May 30, 2013, Messineo filed a
motion returnable on September 12, 2013 to extend the time for
discovery, requesting ninety days to respond. Messineo contended
she was not able to provide answers or obtain documents within the
2
Messineo objects on appeal to the answers provided by Federal
National but did not file a motion before the trial court asking
for more specific answers. See R. 4:17-5(c). Generally, we do
not consider issues that were not raised before the trial court.
Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973)
(citations omitted). We see no reason to vary from that rule
here.
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time provided because she was representing herself, was elderly
and was taking various medications. She also contended she was
unable to locate documents because the house had been damaged by
Hurricane Sandy in 2012 and was being repaired.3
Messineo's motion included her answers to a Demand for
Admissions (Admissions) propounded by Federal National. She
denied executing the note or mortgage, and denied being in default.
For each response, Messineo asserted that she "qualified for
modification under Federal Law which was improperly denied by
Plaintiff, in addition to other affirmative defenses set forth in
the Answer."
Federal National opposed the requested extension of time. It
contended Messineo had not shown an extension to answer discovery
"will supply her with the elements needed for her defense."
3
When the foreclosure complaint was filed, the U.S. Department of
Housing and Urban Development (HUD) had a moratorium in effect
preventing Federal National from foreclosing on homes in areas
declared by President Obama to be impacted by the disaster. Press
Release, HUD No. 12-166, HUD Sec'y Announces Foreclosure Prot. for
N.J. Storm Victims (Oct. 30, 2012),
https://portal.hud.gov/hudportal/HUD?src=/press/press_releases_m
edia_advisories/2012/HUDNo.12-166. The moratorium went into
effect on October 30, 2012 and was to last ninety days, but was
later extended through April 30, 2013. HUD, Mortgagee Letter
2013-06 (Jan. 31, 2013),
https://portal.hud.gov/hudportal/documents/huddoc?id=13-
06ml.pdf. However, Warren County, where Messineo's home was
located, was not deemed to be in the region impacted by the
superstorm, and was therefore not protected by the moratorium.
See HUD No. 12-166, supra.
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Federal National also filed a cross-motion for summary
judgment on July 30, 2013 supported by a certification from a
representative of Seterus. The certification alleged Federal
National was the "holder of a certain Note [and mortgage] executed
by [Messineo]," that she was in default of her obligations under
the mortgage loan, and that a NOI was sent to her at least thirty
days before filing for foreclosure. Messineo opposed the cross-
motion, asserting again that she needed more time because of her
age, health and condition of the property. She opposed the summary
judgment motion by claiming that Federal National did not have
standing, and by generally referencing her affirmative defenses.
She did not assert that she was a participant in a trial
modification program.
On the September 12 return date of the motion and cross-
motion, Messineo failed to appear. The trial court decided the
motions on the papers submitted. By order dated September 12,
2013, the court denied Messineo's request to enlarge the time for
her to answer discovery and granted summary judgment to Federal
National, striking Messineo's answer and affirmative defenses.
The court found that Messineo executed a note and mortgage
and then defaulted. Under the loan documents, Federal National
could accelerate the debt. The court found the NOI was sent to
Messineo more than thirty days before the foreclosure suit was
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filed. It found that the obligation and the mortgage were assigned
to Federal National before the complaint was filed. In rejecting
Messineo's request to extend her time to answer discovery, the
judge found that she did not meet her burden of "demonstrating
with some degree of particularity the likelihood that discovery
will supply her with the elements needed for her defense."
Moreover, in the time she had waited to file the motion, she "could
have acquired most, if not all, of the necessary documents to
comply with [Federal National's] discovery requests." As such,
the court found Messineo had not shown "good cause" under Rule
4:17-4(b).
The court found Federal National had demonstrated the prima
facie elements of foreclosure. Federal National produced proof
that the mortgage was recorded and, although Messineo did not
admit to executing the mortgage loan, the court found the note and
mortgage appeared "to be validly executed, [Messineo] had
defaulted on those obligations, and the notes explicitly
assert[ed] Plaintiff's right to the mortgaged premises." The
court rejected Messineo's argument that Federal National lacked
standing to pursue the foreclosure action, finding "where there
is an endorsement in blank (as existed here), New Jersey law has
deemed physical possession sufficient to enforce the note." The
court rejected defendant's affirmative defenses because she did
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"not discuss any factual details behind [them] that would give
rise to a genuine issue of material fact."
We denied without prejudice Messineo's request to appeal the
September 12, 2013 order on an interlocutory basis. Thereafter,
Messineo opposed Federal National's motion for entry of a final
judgment of foreclosure. Her opposition raised the same arguments
that were rejected on summary judgment and did not challenge the
amount due on the loan. See Rule 4:64-1(c). A final judgment of
foreclosure was entered on August 20, 2015. We granted Messineo's
request to appeal out of time.
On appeal, Messineo contends the trial court erred by denying
her request for more time to answer discovery, by then entering
summary judgment and striking her affirmative defenses, and by
entering a final judgment of foreclosure. We find no merit to any
of these issues.
We review the trial court's discovery order under an abuse
of discretion standard. State in Interest of A.B., 219 N.J. 542,
554 (2014). We "defer to a trial court's resolution of a discovery
matter, provided its determination is not so wide of the mark or
is not 'based on a mistaken understanding of the applicable law.'"
Ibid. (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 371 (2011)). An abuse of discretion "arises when a decision
is made without rational explanation, inexplicably departed from
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established policies, or rested on an impermissible basis." Flagg
v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (citation and
internal quotation marks omitted).
The trial court did not abuse its discretion in denying
Messineo's request for more time to answer the discovery propounded
upon her. Messineo did not suggest to the judge "with any
specificity the nature of the information [she] still hoped to
elicit." Auster v. Kinoian, 153 N.J. Super. 52, 55 (App. Div.
1977). She did not articulate any "factual theory" that would
constitute a defense to the foreclosure action. See ibid. On
this record, we discern no error by the trial court in the exercise
of its discretion.
Federal National's cross-motion for summary judgment was not
germane to Messineo's discovery motion because it did not relate
to the subject matter of the original motion. R. 1:6-3(b).
However, because the cross-motion was returnable more than twenty-
eight days after it was filed, see Rule 4:46-1, we discern no
procedural error by the trial judge in hearing and deciding the
cross-motion at the same time as the discovery motion.
We review a summary judgment decision de novo, which means
that we apply the same standards used by the trial judge. W.J.A.
v. D.A., 210 N.J. 229, 237 (2012). The question is whether the
evidence, "when viewed in the light most favorable to the non-
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moving party," raises genuinely disputed issues of fact sufficient
to warrant resolution by the trier of fact, or whether "the
evidence 'is so one-sided that one party must prevail as a matter
of law.'" Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
540 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). Applying
this standard, there was no error in granting summary judgment.
In a foreclosure matter, a party seeking to establish its
right to foreclose on the mortgage must generally "own or control
the underlying debt." Deutsche Bank Nat'l Tr. Co. v. Mitchell,
422 N.J. Super. 214, 222 (App. Div. 2011) (quoting Wells Fargo
Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011));
Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div.
2010) (citations omitted). In Deutsche Bank Trust Co. Americas
v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012), we held
that "either possession of the note or an assignment of the
mortgage that predated the original complaint confer[s] standing,"
thereby reaffirming our earlier holding in Mitchell, supra, 422
N.J. Super. at 216.
We agree with the trial court that Messineo failed to raise
any genuine issues of fact about the execution of the note and
mortgage. In her brief on appeal, Messineo contends that she was
eligible for a modification of the mortgage and submitted
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information to Seterus that she qualified for a modification.
Moreover, in her appendix she submitted a request to Seterus to
"payoff the current mortgage" though a reverse mortgage. Her
answers to the Admissions asserted she was qualified for a
modification but was improperly denied. All of these
representations were inconsistent with her earlier denial of the
mortgage and note.
The trial court was correct to reject Messineo's counterclaim
that Federal National lacked standing. The representative of
Seterus certified the mortgage was assigned in May 2011 prior to
the filing of the foreclosure complaint in March 2013. Under
N.J.S.A. 46:9-9, "[a]ll mortgages on real estate in this State
. . . shall be assignable at law by writing . . . and any such
assignment shall pass and convey the estate of the assignor in the
mortgaged premises . . . ." Moreover, "[g]iven that the mortgage
was properly recorded and appears facially valid, under New Jersey
law there is a presumption as to its validity, and the burden of
proof as to any invalidity is on the party making such an
argument." In re S.T.G. Enters., Inc., 24 B.R. 173, 176 (Bankr.
D.N.J. Nov. 3, 1982) (citations omitted). Messineo has not
attempted to overcome this presumption. By virtue of the
assignment of the mortgage, which predated the filing of the
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foreclosure complaint, Federal National clearly had standing to
foreclose pursuant to Angeles.
"The 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 mortgage premises." Great
Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993)
(citations omitted). We agree with the trial judge that Messineo
did not raise genuine issues of fact about the mortgage or
assignments, the application of this mortgage to the residential
property, her default or the affirmative defenses. Therefore, we
agree with the trial judge that Messineo raised no genuine dispute
of material fact that required the matter to proceed to trial,
and, therefore the judge did not err by granting summary judgment
and striking her affirmative defenses.
Once Messineo's answer and affirmative defenses were
stricken, the case proceeded as an uncontested action. See R.
4:64-1(c) ("An action to foreclose a mortgage . . . shall be deemed
uncontested if, as to all defendants, . . . all the contesting
pleadings have been stricken or otherwise rendered
noncontesting."). She then failed to assert any objection to the
amount due, see Rule 4:64-1(d)(3), which cleared the way for entry
of the final judgment of foreclosure.
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Any further contentions made by Messineo are without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
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