WELLS FARGO BANK, N.A. VS. ROBERT NEMETH, JR. (F-013882-12, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-0928-15T3
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
ROBERT NEMETH, JR., HIS HEIRS,
DEVISEES, AND PERSONAL
REPRESENTATIVES AND HIS/HER,
THEIR OR ANY OF THEIR SUCCESSORS
IN RIGHT, TITLE AND INTEREST, MRS.
NEMETH, HER DEVISEES, AND
PERSONAL REPRESENTATIVES AND
HIS/HER, THEIR OR ANY OF
THEIR SUCCESSOR IN RIGHT,
TITLE AND INTEREST,
Defendants-Appellants,
and
SHERRY NEMETH, and MICHAEL
E. PANAGOS, ESQ.,
Defendants.
———————————————————————————————————————
Argued May 18, 2017 – Decided July 10, 2017
Before Judges Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. F-013882-12.
Robert L. Nemeth, Jr., appellant, argued the
cause pro se.
Siobhan A. Nolan argued the cause for
respondent (Reed Smith, LLP, attorneys; Henry
F. Reichner, of counsel and on the brief; Mr.
Nolan, on the brief).
PER CURIAM
Defendants Robert Nemeth, Jr., and Debra Nemeth appeal from
Chancery Division orders granting summary judgment to plaintiff
Wells Fargo Bank, N.A., on its foreclosure complaint. Defendants
do not dispute that Robert accepted a $247,500 loan, secured it
with a mortgage on property in Monroe Township, and then lived
there without making any loan payments for over seven years.
Defendants assert numerous claims of trial court error, all lacking
substantive merit. We therefore affirm the trial court.
I.
On October 29, 2003, Robert executed a $247,500 note, agreeing
to repay a loan from World Savings Bank, FSB. Robert also executed
a mortgage on his property in Monroe Township to secure the note.
The Middlesex County Clerk recorded the mortgage on March 9, 2004.
Robert stopped paying the note on October 15, 2009.
Effective December 31, 2007, World Savings Bank, FSB, changed
its name to Wachovia Mortgage, FSB. On November 1, 2009, Wachovia
Mortgage, FSB, was acquired by and merged into plaintiff; as a
2 A-0928-15T3
result, plaintiff has owned and possessed the note and mortgage
since that date.
On December 29, 2010, plaintiff sent Robert a letter stating
he had defaulted on the note because he had not paid it since
October 15, 2009; the letter further advised if he did not cure
his default by February 2, 2011, plaintiff would begin foreclosure
proceedings on the Monroe Township property. Plaintiff filed its
foreclosure complaint on July 20, 2012. The trial court granted
plaintiff summary judgment on January 29, 2013.
On February 10, 2015, plaintiff filed a notice of application
for entry of final judgment and included a certificate of amount
due, stating Robert owed $371,284.90. The trial court entered a
final judgment for that amount on May 13, 2015. Defendants
thereafter attempted to vacate the final judgment, but the court
denied the application on October 9, 2015. This appeal followed.
II.
A trial court must grant a summary judgment motion when "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." R. 4:46-2(c). "An issue of fact is genuine only if,
considering the burden of persuasion at trial, the evidence
3 A-0928-15T3
submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact." Ibid.
We apply the same standard but do not defer to the trial court's
conclusion granting or denying summary judgment. Townsend v.
Pierre, 221 N.J. 36, 59 (2015).
N.J.S.A. 2A:50-56 requires a mortgagee to mail a thirty-day
notice to a residential mortgage debtor prior to accelerating the
maturity of any residential mortgage obligation and commencing any
foreclosure or related proceedings. A mortgagee has standing to
foreclose a mortgage when it has "either possession of the note
or an assignment of the mortgage." Deutsche Bank Trust Co. Ams.
v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012). The
mortgagee's "right to foreclose is an equitable right inherent in
the mortgage." Chase Manhattan Mortg. Corp. v. Spina, 325 N.J.
Super. 42, 50 (Ch. Div. 1998), aff'd, 325 N.J. Super. 1 (App. Div.
1999). The mortgagee has the right to insist upon strict
observance of the obligations contractually owed to it, including
timely payment. See Kaminski v. London Pub, Inc., 123 N.J. Super.
112, 116 (App. Div. 1973). When a mortgagee provides proof of
execution, recording, and non-payment of the note and mortgage,
it has established a prima facie right to foreclose. Thorpe v.
Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div. 1952).
4 A-0928-15T3
A mortgagor opposing summary judgment has a duty to present
facts controverting the mortgagee's prima facie case. Spiotta v.
William H. Wilson, Inc., 72 N.J. Super. 572, 581 (App. Div.),
certif. denied, 37 N.J. 229 (1962). Unexplained conclusions and
"[b]ald assertions are not capable of . . . defeating summary
judgment." Ridge at Back Brook, LLC v. Klenert, 437 N.J. Super.
90, 97-98 (App. Div. 2014).
On appeal, defendants argue: (1) they were denied "equal
access to the court;" (2) the trial court "ignored" N.J.S.A. 2A:50-
56; (3) the trial court should have held a hearing before granting
plaintiff summary judgment; (4) plaintiff "failed to meet [the]
prima facie case standard;" (5) the record contains disputed facts
and credibility issues; (6) the trial court erroneously
disregarded "jurisdictional issues;" (7) the trial court should
have allowed for discovery; (8) the trial court should not have
granted plaintiff summary judgment; (9) plaintiff's certifications
were hearsay; (10) the trial court did not construe the facts "in
a light most favorable to the party opposing the motion;" (11)
they rescinded the mortgage; (12) the trial court lacked subject
matter jurisdiction; (13) the trial court improperly threatened
them "with contempt of court and arrest for no reason;" (14) "the
trial court violated[d] [their] due process by granting an ex-
parte motion for final judgment;" (15) "plaintiff fail[ed] to
5 A-0928-15T3
establish ownership of the loan;" (16) plaintiff failed to send
them a notice of intention to foreclose; and (17) "[w]hen [they]
rescinded the loan documents [plaintiff] became unlawful holder
of the [n]ote as it failed to return it."
We have considered defendants' contentions in light of the
record and applicable law. We conclude they are without sufficient
merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). We add the following brief comments.
Robert admits he executed the note and mortgage. The record
shows plaintiff's predecessor recorded the mortgage. Defendants
admit they have not paid the note since October 15, 2009. The
record shows plaintiff sent defendants a notice of its intention
to foreclose, and it possessed both the note and the mortgage.
Plaintiff clearly had standing to foreclose on Robert's Monroe
Township property and unquestionably established a prima facie
right to foreclose on it. See Thorpe, 20 N.J. Super. at 37.
Defendants have not satisfied their burden to present evidence
controverting plaintiff's prima facie case. See Spiotta, supra,
72 N.J. Super. at 581. While defendants' brief lists seventeen
different bases for seeking reversal of plaintiff's final
judgment, defendants' various claims and arguments find no support
in the record.
Affirmed.
6 A-0928-15T3