HOUSEHOLD FINANCE CORPORATION III v. PATRICK G. BRIGANTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

HOUSEHOLD FINANCE CORPORATION III,

Plaintiff-Respondent,

v.

PATRICK G. BRIGANTE and

MICHELLE C. BRIGANTE,

Defendants-Appellants.

____________________________________________

May 14, 2015

Submitted April 28, 2015 Decided

Before Judges Koblitz and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F-048479-10.

Joseph A. Chang & Associates, LLC, attorneys for appellants (Joseph A. Chang, of counsel; Jeffrey Zajac, on the brief).

Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Joshua B. Sears, on the brief).

PER CURIAM

Defendants Patrick and Michelle Brigante (the Brigantes) appeal from the grant of summary judgment to plaintiff Household Finance Corporation III (Household) in this residential foreclosure case.

The sole issue raised on appeal is that Household lacked standing to bring this suit as the certification supporting plaintiff s ownership of the Note was incompetent and inadmissible. We disagree and affirm.

On March 26, 2007 the Brigantes executed a note and mortgage for the sum of $251,827.35 with Household. The mortgage and note have not been assigned nor transferred to any other entity. The Brigantes defaulted on their payments on the mortgage on May 1, 2010. This is not in dispute.

Household filed a foreclosure complaint on October 1, 2010. Both parties moved for summary judgment. Judge Stephan C. Hansbury, in an oral decision, found that standing was appropriate and the Notice of Intent had been properly given. He therefore granted Household s motion for summary judgment by order of February 17, 2012 and dismissed the matter. The Brigantes appeal from that order.

In considering defendants appeal we apply familiar principles governing summary judgment which are likewise applied at the trial level under Rule 4:46-2(c). Rule 4:46-2 prescribes that summary judgment 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 and that the moving party is entitled to judgment as a matter of law." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995). In undertaking this analysis, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. When reviewing such determinations on appeal "[a] trial court s interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference[.]" Estate of Hanges v. Metro, Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) (alteration in original) (quoting Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Under New Jersey law where there is proof of execution, recording, and non-payment of the note and mortgage, a mortgagee has established a prima facie right to foreclose. Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div. 1952). As none of the above stated elements are in dispute, plaintiff has established a prima facie right to foreclose.

The mortgagor opposing summary judgment has a duty to present facts that controvert the mortgagee s prima facie case and such evidence presented in opposition must be substantial. See Spiotta v. William H. Wilson, Inc., 72 N.J. Super. 572, 581, (App. Div. 1962) certif. denied, 37 N.J. 229 (1962); Brill, supra, 142 N.J. at 530. The Brigantes contend that Household has not provided sufficient proofs to warrant summary judgment as plaintiff submitted a preprinted fill-in-the blanks form affidavit to establish ownership of the Note. The affidavit was signed by Maria Vadney. Defendants contend that similar affidavits signed by this same individual have been rejected by courts in other jurisdictions, and they rely on HSBC Mortgage Servs., Inc. v. Murphy, 19 A.3d 815 (ME. 2011), and HSBC Mortg. Servs. Inc v. Edmon, 6th Dist. Erie No. E-11-046, 2012-Ohio-4990. We find those cases to be distinguishable from the case at hand.

In Murphy, supra, 19 A.3d at 817, there was a purported assignment of the mortgage. For plaintiff to have standing to sue in a foreclosure action, it must be demonstrated that there was ownership or control over the note at the time the complaint was filed. See Deutsche Bank Nat l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011).

There was no assignment of the note in the instant case. We have examined the affidavit signed by Ms. Vadney in support of the summary judgment motion. To obtain summary judgment, the certification submitted must be competent, which means based on personal knowledge.1 Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011). Although clearly a form document was used here, nevertheless Ms. Vadney indicates she is a Vice President of Household Finance, a mortgage servicing company. She certifies that she is familiar with the business records of Household and that she has personally examined these records in connection with making the certification. She states that plaintiff is the holder of the note and mortgage executed by the Brigantes.

This certification does not contain the discrepancies in dates noted by the court in Murphy, supra, 19 A.3d at 815, nor are there issues due to an assignment of the mortgage. Plaintiff has always held the note.

Although Ms. Vadney is involved in the subject transaction, we find it distinguishable from the cases cited by defendants which involved different issues in other states. No assignment of a note or mortgage took place here. There is no evidence presented to dispute Ms. Vadney s certification that she has personal knowledge of the records in this matter and that she has personally examined the documents. Plaintiff had standing to bring this complaint. As there are no other facts in dispute, we agree with Judge Hansbury that summary judgment is appropriate and we affirm his ruling.

Affirmed.

1 See also Rule 1:6-6 (stating affidavits must be based on personal knowledge).