U.S. BANK NATIONAL ASSOICATION, ETC. VS. ARTHUR ROSENBERG (F-042671-13, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-4936-16T3
U.S. BANK NATIONAL ASSOCIATION,
as Trustee, Successor in Interest
to Wachovia Bank, National
Association, as Trustee for Wells
Fargo Asset Securities Corporation,
Mortgage Pass-Through Certificates,
Series 2005-AR14,
Plaintiff-Respondent,
v.
ARTHUR ROSENBERG and ILENE
ROSENBERG,
Defendants-Appellants,
and
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee for Certificate
Holders of Saco I Inc., Mortgage Pass-Through
Certificates, Series 2005-2,
Defendant.
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Submitted September 26, 2018 – Decided October 3, 2018
Before Judges Alvarez and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Essex County, Docket No. F-
042671-13.
Arthur M. Rosenberg, appellant pro se.
Reed Smith, LLP, attorneys for respondent (Henry F.
Reichner and Laura K. Conroy, on the brief).
PER CURIAM
Defendants Arthur and Ilene Rosenberg appeal from an order granting
plaintiff summary judgment and striking defendants' pleadings. Defendants also
appeal from a final judgment of foreclosure. We affirm.
The following facts are taken from the record. In 2005, defendants
obtained a $580,000 loan from Wells Fargo Bank, NA and executed a note
secured by their home in Livingston. The mortgage was thereafter recorded, the
note was then delivered and formally assigned to plaintiff. Defendants ceased
paying the mortgage in April 2011. Plaintiff filed a foreclosure complaint in
November 2013, but the complaint was dismissed without prejudice in May
2014, because plaintiff had not complied with discovery. Plaintiff's counsel had
filed for bankruptcy, forcing plaintiff to seek new counsel who filed a motion to
reinstate the complaint in May 2016. Plaintiff's motion was granted.
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Plaintiff moved to amend the complaint to include a new junior lien holder
for a subordinate mortgage. The junior lien holder was served with the amended
complaint.
Plaintiff then filed a motion for summary judgment and defendants cross -
moved to compel discovery. Plaintiff's motion was granted, defendants'
pleadings were stricken, and default was entered on January 26, 2017. The final
judgment of foreclosure was subsequently entered on June 8, 2017.
On appeal, defendants assert plaintiff lacked standing because it failed to
prove possession of the note. Defendants argue plaintiff did not prove it served
a junior lien holder. Defendants argue the court also erred when it reinstated
plaintiff's foreclosure complaint and improperly denied defendants' motion to
compel discovery.
Our review of an order granting summary judgment is de novo. Graziano
v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). "[W]e review the trial
court's grant of summary judgment . . . under the same standard as the trial
court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
224 N.J. 189, 199 (2016). The court considers all of the evidence submitted "in
the light most favorable to the non-moving party," and determines if the moving
party is entitled to summary judgment as a matter of law. Brill v. Guardian Life
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Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court may not weigh the
evidence and determine the truth of the matter. Ibid. If the evidence presented
"show[s] that there is no real material issue, then summary judgment should be
granted." Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258
(App. Div. 1987) (citing Judson v. Peoples Bank & Tr. Co. of Westfield, 17 N.J.
67, 75 (1954)). "[C]onclusory and self-serving assertions by one of the parties
are insufficient to overcome [summary judgment]." Puder v. Buechel, 183 N.J.
428, 440-41 (2005).
The right to foreclose arises upon proof of execution, recording of a
mortgage and note, and default on payment of the note. Thorpe v. Floremoore
Corp., 20 N.J. Super. 34, 37 (App. Div. 1952). Standing to foreclose derives
from N.J.S.A. 12A:3-301, which states:
"Person entitled to enforce" an instrument means the
holder of the instrument, a nonholder in possession of
the instrument who has the rights of a holder, or a
person not in possession of the instrument who is
entitled to enforce the instrument pursuant to 12A:3-
309 or subsection d. of 12A:3-418. A person may be a
person entitled to enforce the instrument even though
the person is not the owner of the instrument or is in
wrongful possession of the instrument.
We have stated, standing may be established through "either possession of the
note or an assignment of the mortgage that predated the original complaint."
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Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div.
2012).
The record here demonstrates plaintiff had standing to foreclose. Plaintiff
offered the certification of Caroline K. Courtney, Vice President of Loan
Documentation of plaintiff's servicing agent, which proved the mortgage was
assigned to plaintiff before the complaint for foreclosure was filed. Courtney's
certification proved plaintiff held the note before the filing date of the complaint.
Her certification also established the mortgage was recorded before plaintiff
filed its complaint. For these reasons, we reject defendant's argument plaintiff
lacked standing.
Additionally, defendants' claim plaintiff had not served the junior lien
holder lacks merit. The record bears an affidavit of service upon the junior lien
holder's agent dated February 13, 2017.
We also reject defendants' argument the trial court erred when it reinstated
plaintiff's complaint. Motions to reinstate are viewed "with great liberality."
Ghandi v. Cespedes, 390 N.J. Super. 193, 197 (App. Div. 2007). We review
such determinations for an abuse of discretion. Id. at 196.
Rule 4:64-8 states:
[W]hen a foreclosure matter has been pending for
twelve months without any required action having been
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taken therein, the Clerk of the Superior Court shall
issue written notice to the parties advising that the
matter as to any or all defendants will be dismissed
without prejudice 30 days following the date of the
notice unless . . . an affidavit or certification has been
filed with the Clerk of the Superior Court asserting that
the failure of filing or taking the next required action is
due to exceptional circumstances. If the plaintiff fails
to respond as herein prescribed, the court shall enter an
order of dismissal without prejudice as to any named
party defendant who has not been served or has not
answered and shall furnish the plaintiff with a copy
thereof. Reinstatement of the matter after dismissal
may be permitted only on motion for good cause shown.
Here, there was good cause to reinstate plaintiff's complaint. Indeed, the
delay in prosecuting the foreclosure was occasioned by the bankruptcy of
plaintiff's counsel, which required new counsel to be retained and learn the case
before seeking re-instatement. Plaintiff was not the cause for the dismissal of
its complaint. The trial court did not abuse its discretion to reinstate plaintiff' s
complaint.
Finally, we reject defendants' argument they were deprived of discovery.
As a general proposition, "summary judgment is inappropriate prior to the
completion of discovery." Wellington v. Estate of Wellington, 359 N.J. Super.
484, 496 (App. Div. 2003). However,
[a] party challenging a motion for summary judgment
on grounds that discovery is as yet incomplete must
show that "there is a likelihood that further discovery
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would supply . . . necessary information" to establish a
missing element in the case. The party must show, with
some specificity, the nature of the discovery sought and
its materiality to the issues at hand.
[Mohamed v. Iglesia Evangelica Oasis De Salvacion,
424 N.J. Super. 489, 498 (App. Div. 2012) (alteration
in original) (citations omitted).]
See also Auster v. Kinoian, 153 N.J. Super. 52, 56 (App. Div. 1977) (explaining
a party raising an incomplete discovery defense has "an obligation to
demonstrate with some degree of particularity the likelihood that further
discovery will supply the missing elements of the cause of action").
Here, defendants pled a defense grounded in the alleged lack of service
on the junior lien holder. However, the discovery defendants sought was broad
and unrelated to their pleadings. Specifically, they sought discovery relating to
plaintiff's standing, assignment and possession of the note, the loan origination
file, the identity of the parties who collected defendants' mortgage payments,
title insurance documents, and the mortgage interest rate calculation. Our
review of the record demonstrates this information was either already contained
in plaintiff's proofs, or immaterial to whether plaintiff was entitled to a
foreclosure judgment. The trial court's decision to deny defendants' motion to
compel discovery was not an abuse of discretion.
Affirmed.
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