BAYVIEW LOAN SERVICING LLC v. ROSE O AKINFADERIN-ABUA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

BAYVIEW LOAN SERVICING, LLC,

A DELAWARE LIMITED LIABILITY

COMPANY,

Plaintiff-Respondent,

v.

ROSE O. AKINFADERIN-ABUA,

Defendant-Appellant.

______________________________

December 24, 2014

Submitted December 8, 2014 Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Bergen County, Docket No. F-26894-12.

Rose O. Akinfaderin-Abua, appellant pro se.

Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Gregg P. Tabakin, on the brief).

PER CURIAM

In this foreclosure matter, defendant Rose O. Akinfaderin-Abua appeals from the July 12, 2013 Chancery Division order, which denied her second motion for reconsideration of the April 19, 2013 order striking her answer and counterclaim against plaintiff Bayview Loan Servicing, LLC. Defendant also appeals from the August 20, 2013 order, which denied her third motion for reconsideration. We affirm.

The facts are straightforward. On November 20, 2006, defendant executed a note to InterBay Funding, LLC (InterBay) in the amount of $675,000. The note contains an allonge with a blank endorsement. To secure payment of the note, defendant executed a mortgage to InterBay on property located in Englewood. The mortgage was recorded with the Bergen County Clerk's Office on December 15, 2006.

On March 7, 2007, InterBay executed an assignment of mortgage, which assigned both the mortgage and note to plaintiff (the assignment). Plaintiff recorded the assignment with the Bergen County Clerk's Office on April 4, 2007.

On July 30, 2008, and again on February 27, 2010, defendant, as borrower, and plaintiff as lender, executed loan adjustment agreements. Defendant defaulted on August 1, 2012.

On November 16, 2012, plaintiff filed a complaint for foreclosure. Defendant filed an answer and counterclaim. Following the completion of discovery, plaintiff filed a motion for summary judgment. In support thereof, plaintiff's authorized representative certified that based on her review of the loan file, plaintiff was in possession of the original note, mortgage, assignment, and the two loan adjustment agreements.

In response to plaintiff's motion, defendant did not dispute that she signed the note and mortgage, or was in default. She argued, in part, that plaintiff lacked standing to foreclose because it was not in possession of the original note and the assignment did not confer standing.

In an April 19, 2013 order and written opinion, the court found that plaintiff was in possession of the note and the mortgage was assigned to plaintiff on April 4, 2007. The court struck defendant's answer and counterclaim and remanded the matter to the Office of Foreclosure. The court entered final judgment on June 10, 2013.

Thereafter, defendant filed three motions for reconsideration, all of which the court denied in orders entered on May 24, 2013,1 July 12, 2013, and August 20, 2013, finding that defendant failed to establish any basis for reconsideration. On appeal, defendant reiterates the arguments presented to the trial court.

Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Nicholas v. Mynster, 213 N.J.463, 477-78 (2013). Thus, we consider, as the trial judge did, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.520, 536 (1995)). "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.'" Town of Kearny v. Brandt, 214 N.J.76, 91 (2013) (citing R.4:46-2(c)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas, supra, 213 N.J.at 478.

As for the denial of the motion for reconsideration, we have determined that

[r]econsideration itself is a matter within the sound discretion of the [c]ourt, to be exercised in the interest of justice[.] It is not appropriate merely because a litigant is dissatisfied with a decision of the court or wishes to reargue a motion, but should be utilized only for those cases which fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Palombi v. Palombi, 414 N.J. Super.274, 288 (App. Div. 2010) (citations and internal quotation marks omitted).]

We will not disturb a trial court's denial of a motion for reconsideration absent an abuse of discretion. Id. at 289.

We discern no error in this case, as the evidence clearly established that plaintiff had standing to foreclose. "[S]tanding is not a jurisdictional issue in our State court system and, therefore, a foreclosure judgment obtained by a party that lacked standing is not 'void' within the meaning of Rule 4:50-1(d)." Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J. Super. 91, 101 (App. Div. 2012). The judgment is "voidable" unless the plaintiff has standing from either possession of the note or an assignment of the mortgage that predated the original complaint. See Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 319-20 (App. Div. 2012). Here, plaintiff had standing to foreclose because it had both possession of the original note and an assignment of the mortgage and note that predated the original complaint. Accordingly, the judge correctly struck defendant's answer and counterclaim and denied her motions for reconsideration.

Affirmed.

1 Defendant has not supplied the motion papers relating to her first motion for reconsideration or the May 24, 2013 order. We derive information about the first motion from the order entered on July 12, 2013.