NATIONSTAR MORTGAGE LLC v. BERNIENA Q. TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NATIONSTAR MORTGAGE, LLC,

Plaintiff-Respondent,

v.

BERNIENA Q. TAYLOR,

Defendant-Appellant.

_____________________________________

May 17, 2016

Submitted April 4, 2016 Decided

Before Judges Nugent and Higbee.

On appeal from Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. F-18148-09.

Berniena Q. Taylor, appellant pro se.

Knuckles, Komosinski& Manfro,LLP, attorneys for respondent (Robert T. Yusko, on the brief).

PER CURIAM

This is a mortgage foreclosure action. Defendant Berniena Q. Taylor appeals from a December 10, 2012 Chancery Division order deeming defendant's answer non-contesting, and from the final foreclosure judgment entered on April 2, 2014. We affirm.

In February 2006, defendant borrowed $330,000 from First National Bank of Arizona. She signed a note evidencing the loan and the terms of its repayment, and she also executed a mortgage to Mortgage Electronic Registration Systems, Inc., as nominee for First National Bank of Arizona (MERS). In November 2008 and thereafter, defendant failed to make the installment payments due under the terms of the note. Following defendant's default, MERS assigned the mortgage in March 2009 to Aurora Loan Services, LLC. The following month, April 2009, Aurora filed a foreclosure complaint.

Defendant defaulted, but subsequently moved to vacate the default, a motion the court granted in January 2012. Defendant filed an answer and counterclaim. In her counterclaim, she alleged: Aurora was not the original owner of the debt evidenced by the note and mortgage; Aurora did not have the note in its possession when it filed the complaint; and Aurora did not provide the name and address of the original lender when it served its notice of intention to foreclose on the mortgage.

The parties filed cross-motions for summary judgment, which the court denied in a September 21, 2012 order. The order memorialized, among other things, "that the [n]otice of [i]ntent previously served by plaintiff is defective based on the failure to separately identify servicer and lender as required by the Supreme Court's Opinion in US Bank National Association v. Gullaume, 209 N.J. 449 (2012)." The order permitted plaintiff to correct the defective notice of intent by issuing a new notice "providing defendant with the opportunity to cure without the payment of attorneys [fees] and costs." The court specified the day by which the corrective notice was to be filed as well as the date by which defendant could cure.

The order further provided

Plaintiff's [m]otion for summary judgment is denied based solely on the deficiency in plaintiff's proofs dealing with the issue of standing involving plaintiff's failure to clearly identify the individuals or entities which have owned the debt over time and which do now own the debt. Given that deficiency, this matter will be listed for trial as noted below.

The court scheduled trial for December 10, 2012.

The action proceeded to trial. In addition to eight exhibits, plaintiff presented the testimony of a Default Litigation Analyst employed by Nationstar Mortgage who had formerly been employed by Aurora. The witness authenticated the original note and testified Aurora had custody of the note as of April 2, 2009, four days before Aurora filed the foreclosure complaint. The witness also identified a certified copy of the original mortgage and an assignment of the mortgage to Aurora. Additionally, the witness authenticated documents that "track[ed] the movements of the note from the original custodian to Aurora Loan Services becoming the custodian as of April 2nd of 2009."

The witness also authenticated documents demonstrating the loan was in default and the current "servicer of the loan" was Nationstar Mortgage. Nationstar had become the servicer of the loan in July 2012. Aurora had been the servicer before Nationstar.

Lastly, the witness testified "the investor for the loan" was an entity named "Luminent Trust 2006-5 with HSBC as trustee for the trust." The witness authenticated the corrected notice of intention to foreclose.

Defendant did not testify. Following the trial, Judge William C. Todd, III, delivered from the bench a thoughtful and thorough opinion in which he concluded: Aurora was the servicer for the trust as of the date the complaint was filed; Aurora had possession of the note at that time; therefore, Aurora did have standing to file the complaint and proceed with the foreclosure action.

Judge Todd deemed defendant's answer non-contesting, struck the counterclaim, permitted the complaint to be amended to name as plaintiff the new servicing carrier, Nationstar, and referred the matter to the Office of Foreclosure. The judge entered a memorializing order on December 10, 2012.

Nationstar, the newly substituted plaintiff, subsequently filed a motion for final judgment of foreclosure, which defendant opposed. In her opposing papers, defendant challenged the certifications plaintiff had submitted in support of the motion. Asserting the affiants lacked personal knowledge of the facts to which they attested, defendant argued the motion should be denied. She also argued the documents submitted in support of the motion were not original documents, and she could not discern whether the amount due on the note was accurate. On April 2, 2014, the court entered a final judgment. Plaintiff filed this appeal.

On appeal, defendant raises the arguments she presented to the trial court. She challenges the various assignments of the note and mortgage as well as Aurora's possession of the note at the time it filed the foreclosure complaint. Additionally, she disputes the proofs Nationstar submitted in support of its motion for a final judgment. She also challenges virtually every ruling made by the trial court.

Plaintiff responds that defendant's appeal was not timely filed, her brief "exceeds the scope of this appeal," and the trial court acted well within its discretion by permitting a corrective notice of intention. Lastly, plaintiff contends the trial court's finding that Aurora had standing to file the complaint is amply supported by the record.

Plaintiff's argument that defendant's appeal is untimely has merit. Nevertheless, we have considered the substance of defendant's arguments presented on appeal, and reject them. We affirm, substantially for the reasons given by Judge Todd in his oral opinion. R. 2:11-3(e)(1)(A). Defendant's arguments attacking Judge Todd's ruling, as well as her arguments attacking the final foreclosure judgment, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.