WELLS FARGO BANK, N.A. v. DOMINIC S. CERRETO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

DOMINIC S. CERRETO, his heirs,

devisees, and personal

representatives and his/her,

their, or any of their successors

in right, title and interest,

Defendant-Appellant,

and

HECIARA CERRETO, his wife, her

heirs, devisees, and personal

representatives and his/her,

their, or any of their successors

in right, title and interest,

BNB BANK NATIONAL ASSOCIATION,

a/k/a BROADWAY NATIONAL BANK,

Defendants.

_____________________________________________

May 12, 2015

Submitted November 10, 2014 Decided

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-017240-12.

Dominic S. Cerreto, appellant pro se.

Reed Smith LLP, attorneys for respondent (Henry F. Reichner, of counsel; Alex G. Gross, on the brief).

PER CURIAM

Defendant Dominic S. Cerreto appeals from the Chancery Division's order granting plaintiff, Wells Fargo Bank, N.A., summary judgment as to its complaint in foreclosure. Defendant argues several points on appeal, which all relate to his underlying argument that plaintiff failed to prove it "owned [defendant's] mortgage and note, and [that it] complied with the requirements of the New Jersey Uniform Commercial Code prior to the time it filed a foreclosure action." We have considered defendant's arguments in light of the record and applicable legal principles. We affirm.

We recite the facts found in the summary judgment record, viewed in a light most favorable to defendant. Robinson v. Vivirito, 217 N.J. 199, 203 (2014); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Defendant executed a note on September 26, 2006, in the amount of $549,930, in favor of World Savings Bank, FSB (WSB). In order to secure payment of the note, he and his wife, defendant Heciara Cerreto, also executed and delivered to WSB a mortgage against property located at 415 Washington Avenue, Point Pleasant Beach. Shortly after its execution and delivery, the mortgage was duly recorded.

On August 23, 2012, plaintiff filed its foreclosure complaint. In the complaint, it detailed the loan's history and alleged a default by defendant in repayment. Also, plaintiff alleged it was the holder of the obligation, not as the result of an assignment but, rather, as a result of WSB's merger with Wachovia Mortgage, FSB, and that entity's later merger with plaintiff. It also alleged it had complied with the provisions of the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68. In response, defendant filed an answer denying all the allegations of the complaint and asserting various defenses. Among his defenses, he claimed plaintiff did not have standing to proceed, was not the owner or in possession of the note, and failed to comply with the FFA.

In January 2013, plaintiff filed a motion for summary judgment. In support of its motion, plaintiff filed the certification of Jorge Salamanca, "Vice President Loan Documentation." In his certification, he explained his role and the source of his knowledge for the information included in his certification. He stated he was employed by plaintiff and was authorized to make the certification. He then explained

I have personal knowledge of the facts contained in this certification by virtue of my position at Wells Fargo and my familiarity with Wells Fargo's practices and procedures, and based upon my review and analysis of the relevant business records and other documents of the company referenced and attached herein. More particularly, I am familiar with the systems of record that Wells Fargo uses to create and record information related to the residential mortgage loans that it services, including the process by which Wells Fargo employees enter information in those systems. The records contained in those systems were made at or near the time of the occurrence of the matters set forth in the records. These records are maintained in the regular course of Wells Fargo's business as a lender and loan servicer, it is the regular practice of Wells Fargo to make such records, and the company relies on those records in the ordinary course of that business.

He repeated the history and details of the note and mortgage and stated that defendant "initially defaulted by failing to make the September 19, 2011 payment." In addition, he stated plaintiff was "the current holder" of the note and mortgage as a result of two "transactions." He explained, "[e]ffective December 31, 2007, [WSB] merged and changed its name to Wachovia Mortgage, FSB . . . [and e]ffective November 1, 2009, Wachovia Mortgage, FSB converted into a national bank and merged with and became [plaintiff]." He attached to his certification a copy of a "November 19, 2007 letter from the Office of Thrift Supervision, reflecting the amendments to the charter and bylaws to effect the name change . . . [and a] copy of [a] letter from the Comptroller of the Currency reflecting the merger and name change" as to the Wachovia Wells Fargo merger. The certification also stated plaintiff sent a Notice of Intention to Foreclose on October 31, 2011, and a copy of the letter was attached.

Defendant filed a cross-motion for summary judgment seeking dismissal of plaintiff's complaint because it "failed [to] comply with the provision[s] of [the] Uniform Commercial Code." In his opposing certification, defendant asserted legal arguments challenging the sufficiency of the "'Salamanca' certification" and its attachments as proof of the mergers between the various entities. He confirmed the history of the note and mortgage and argued the legalities of the note being a "bearer instrument." He did not, however, dispute his default under the terms of the note and mortgage.

After considering the parties' submissions, on March 8, 2013, the Chancery judge found, that the Notice of Intent was properly mailed to defendant on October 31, 2011, and

[a]ll loan documents have remained in the possession of the same entity through a series of mergers and acquisitions. The general denials and the Answers do not raise material facts before this court . . . .

[I]n looking at this circumstance, the Note never changed hands, the Assignment need not have [been] prepared anyway because there were a series of acquisitions. Possession of the Note remains with the plaintiff. Under the UCC they have standing to foreclose.

The court entered an order granting plaintiff's motion and striking defendant's answer. On August 5, 2013, the court entered a final judgment of foreclosure. This appeal followed.

We begin by stating the well-settled principles guiding a trial court's determination of a summary judgment motion and our review of those decisions. Summary judgment must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with 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). See also Badiali v. N. J. Mfrs. Ins. Co., 220 N.J. 544, 555 (2015). "In considering whether there exists a genuine issue of material fact, the motion judge '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 fact finder to resolve the alleged disputed issue in favor of the non-moving party.'" Ibid. (quoting Brill, supra,142 N.J. at 540).

While a court must view the evidence in the light most favorable to non-movant, "it is evidence that must be relied upon to establish a genuine issue of fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014), certif. denied, 220 N.J. 269 (2015). "Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments." Ibid. (citation and internal quotation marks omitted). "[B]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." Id. at 606 (citations and internal quotation marks omitted).

An appellate court applies the same standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We first determine if there is a genuine issue as to any material fact. If there is no genuine issue of fact, "[w]e then decide whether the motion judge's application of the law was correct." N.J. Dep't of Envtl. Prot. v. Alloway Twp. & Salem, 438 N.J. Super. 501, 507 (App. Div. 2015) (citation and internal quotation marks omitted).

Applying these standards, we find defendant's opposition to plaintiff's motion did not create any genuine issue as to a material fact. As to his legal arguments on appeal, "[w]e find insufficient merit in any of plaintiff's . . . arguments to the extent they are intended as an attack on the summary judgment entered in favor of Wells Fargo[.]" Suser v. Wachovia Mortg., FSB, 433 N.J. Super. 317, 322 (App. Div. 2013). As we have previously observed in response to similar contentions,

The record does not suggest that [plaintiff's] authority to seek foreclosure of the [WSB] mortgage was based on an assignment. Instead, [plaintiff] asserted, without substantial contradiction, that the original mortgage holder [WSB], changed its name to Wachovia Mortgage, FSB, effective December 31, 2007, and that Wachovia was acquired by and merged into [plaintiff] effective November 1, 2009. It would appear that [plaintiff's] right to enforce the mortgage arises by operation of its ownership of the asset through mergers or acquisitions, not assignment. Accordingly, plaintiff's assertions regarding standing have no bearing on [plaintiff] . . . .

[Id. at 321.]

Defendant cites to our holding in Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592 (App. Div. 2011), to support his argument that plaintiff failed to establish it had standing to sue. His reliance, however, is inapposite. In that case, a mortgage lender "purportedly assigned the mortgage and note to [Wells Fargo, which] . . . claim[ed] that it acquired the status of a holder in due course as a result of this assignment and therefore [was] not subject to any of the defenses defendant may have been able to assert against [the original lender]. Id. at 594. Significantly, no such assignment existed in this case because the original noteholder never divested itself of the note by assignment or otherwise.

Defendant also attacked the "Salamanca certification." We find his challenge to its bona fides to be equally without merit. Nothing supports defendant's position that the certification was untrustworthy and lacked personal knowledge. The plain language of the certification states Salamanca reviewed the documents held by plaintiff, and plaintiff possessed the original note and mortgage when the complaint was filed by virtue of the mergers and acquisitions. The certification explained the source of his knowledge and authenticated the documents attached, which were addressed to or from plaintiff or Wachovia. Cf. id. at 599-600 (finding a certification insufficient where it did not "allege . . . personal knowledge that Wells Fargo is the holder and owner of the note . . . [or] give any indication how [the author] obtained this alleged knowledge[, and it did] not indicate the source of [the author's] alleged knowledge that the attached mortgage and note [were] "'true copies.'").

Finally, defendant's opposing certification and brief did not mention plaintiff's alleged failure to comply with the FFA. Having not raised the issue before the motion judge, we have no reason to address this argument on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We note, to the extent defendant argues the notice did not identify his lender, N.J.S.A. 2A:50-56(c)(11), we disagree as it identified Wachovia, which became plaintiff.1

Affirmed.

1 The FFA requires a "residential mortgage lender [to] give the residential mortgage debtor notice of [its] intention [to foreclose] at least 30 days in advance" of commencing a foreclosure action. N.J.S.A. 2A:50-56(a). "The notice of intention is a central component of the FFA, serving the important legislative objective of providing timely and clear notice to homeowners that immediate action is necessary to forestall foreclosure." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 470 (2012) (citing N.J.S.A. 2A:50-56(a)). The FFA further provides that the notice of intention must, among other things, provide "the name and address of the lender." N.J.S.A. 2A:50-56(c)(11). The term "lender" is statutorily defined as "any person, corporation, or other entity which makes or holds a residential mortgage, and any person, corporation or other entity to which such residential mortgage is assigned." N.J.S.A. 2A:50-55.