WELLS FARGO BANK, N.A. v. KASSIM E. VESPREY

NOT FOR PUBLICATION WITHOUT THE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-0

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

KASSIM E. VESPREY,

Defendant-Appellant,

and

MRS. KASSIM E. VESPREY and

NICOLE O. MORRISON,

Defendants.

__________________________________________

November 21, 2016

 

Submitted July 26, 2016 Decided

Before Judges Messano and Suter.

On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-026628-13.

Kassim E. Vesprey, appellant pro se.

Reed Smith, L.L.P., attorneys for respondent (Henry F. Reichner, on the brief).

PER CURIAM

Defendant, Kassim E. Vesprey, appeals a June 10, 2014 order granting summary judgment to plaintiff Wells Fargo Bank, N.A. (Wells Fargo), and a November 24, 2014 final judgment foreclosing his interest in certain residential real estate. We affirm both orders.

I.

In 2009, defendant executed a $154,612 note to Wells Fargo for the purchase of a residential property in East Orange, New Jersey. He and defendant Nicole O. Morrison1 also executed a mortgage to Wells Fargo, which mortgage subsequently was recorded. Shortly after the note and mortgage were executed, Federal Home Loan Mortgage Corporation (Freddie Mac) invested in the loan, but Wells Fargo continued to service it. Although the note was indorsed in blank, Wells Fargo kept possession of the note and it remained as the mortgagee of record.

Defendant defaulted on the note in July 2012. Defendant contested this, but did not provide proof of any payments. Wells Fargo sent defendant a Notice of Intention to foreclose (NOI), which he did not deny receiving. A foreclosure complaint was filed by Wells Fargo thereafter.

Wells Fargo's motion for summary judgment was granted on June 10, 2014, striking defendant's answer and affirmative defenses. In a comprehensive written opinion, Judge Walter Koprowski, Jr., found that Wells Fargo had proven a prima facie case of foreclosure because defendant did not deny the execution or validity of the note and mortgage, nor did he refute that he defaulted on the note by submitting proof of payments.

Judge Koprowski rejected defendant's claim that Wells Fargo lacked standing because it presented proof that it had originated and retained possession of the note and mortgage. The judge rejected defendant's claim that Wells Fargo's supporting certification was deficient, because defendant did not refute that the certification was based on personal knowledge and a review of Wells Fargo's business records. The judge also found Well Fargo's NOI conformed with statutory requirements. A final judgment of foreclosure was entered on November 24, 2014.2

On appeal, defendant raises the following points

1. THE [APPELLATE] DIVISION MUST DECIDE [WHETHER] A GENUINE ISSUE OF MATERIAL FACT WAS IN DISPUTE THAT SHOULD HAVE PRECLUDED SUMMARY JUDGMENT, AND IF NOT, WHETHER THE [TRIAL] COURT RULED CORRECTLY ON THE LAW.

2. THE [APPELLATE] DIVISION MUST DECIDE [WHETHER] A GENUINE ISSUE OF MATERIAL FACT WAS IN DISPUTE THAT SHOULD HAVE PRECLUDED SUMMARY JUDGMENT, WHERE PLAINITFF FAILED TO INCLUDE FREDDIE MAC AS [AN] "[INDISPENSIBLE] PARTY."

3. WELLS FARGO BANK'S OWN PROOF ESTABLISH[ES] THAT WELLS FARGO BANK IS NOT THE HOLDER OF THE NOTE, AND [THEREFORE] LACKS STANDING TO FORECLOSE.

4. WELLS FARGO BANK CLAIM OF HOLDER WAS UNSUPPORTED BY COMPETENT EVIDENCE, AND THEREFORE WELLS FARGO BANK, N.A. FAILED EVEN TO SHOW AN OWNERSHIP INTEREST IN THE NOTE.

5. WELLS FARGO BANK NOTICE OF INTENTION TO FORECLOSE FAILED [TO] PROVE ANY LEGAL RIGHT TO THE MORTGAGE OR NOTE THEREFORE VIOLATES THE FAIR FORECLOSURE ACT.

II.

We review a summary judgment decision de novo, which means that we apply the same standards used by the trial judge. W.J.A. v. D.A., 210 N.J. 229, 237 (2012). The question then is whether the evidence, when viewed in a light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact, or whether the evidence is so one-sided that one party must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying this standard, the record amply supports Judge Koprowski's summary judgment order.

Defendant appeals the decision that Wells Fargo had standing to foreclose because of Freddie Mac's investment in the mortgage loan, contending that Wells Fargo was not a person entitled to enforce the note under our Uniform Commercial Code (UCC), N.J.S.A. 12A:1-101 to 12-26.

We review relevant provisions of the UCC to give context to this issue. A party seeking to establish its right to foreclose on a mortgage must generally own or control the underlying debt. Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011); Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010). A debt is evidenced by a promissory note, which is a negotiable instrument. N.J.S.A. 12A:3-104.

Article Three of the UCC addresses the enforceability of negotiable instruments. N.J.S.A. 12A:3-101 to -605. A negotiable instrument can be enforced by any person "entitled to enforce." N.J.S.A. 12A:3-301. Such persons can include a "holder of the instrument, a nonholder in possession of the instrument who has the rights of a holder, or a person not in possession of the instrument who is entitled to enforce the instrument . . . ." Ibid. A "holder" is defined by the UCC as a person "in possession of a negotiable instrument that is payable . . . to the bearer," or if payable to an identified person, the identified person "is the person in possession." N.J.S.A. 12A:1-201(b)(21)(a).

In Mitchell, supra, 422 N.J. Super. at 216, we held that to have standing, a foreclosing plaintiff either must have possession of the promissory note or an assignment of the mortgage that predated the original complaint. There was ample proof here to support Judge Koprowski's decision that Wells Fargo had standing. Wells Fargo's representative certified the note and mortgage remained in Wells Fargo's possession before and through the filing of the complaint. Although defendant questioned whether Wells Fargo continued to be in possession of the note, he provided no proof to the contrary.3 In addition to possession of the note, defendant never factually refuted that Wells Fargo was the mortgagee of record or that it remained in possession of the mortgage it originated.

Defendant takes issue with the bank representative's supporting certification, contending it lacked personal knowledge about possession of the note and mortgage. We agree with Judge Koprowski, however, that the certification constituted proof of possession. The certification complied with N.J.R.E. 803(c)(6). See New Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 326 (App. Div.) (citing State v. Martorelli, 136 N.J. Super. 449, 553 (App. Div. 1975), certif. denied, 69 N.J. 445 (1976)) ("There is no requirement that the foundation witness [certifying that a record is a business record] possess any personal knowledge of the act or event recorded."), certif. denied sub nom. MSW Capital, LLC v. Zaidi, 218 N.J. 531 (2014). The bank's representative certified the loan records were business records, that she had personal knowledge of how the records were kept and maintained, that she had personally reviewed the account, and that Wells Fargo remained in possession of the note and mortgage.

Because Wells Fargo remained in possession of the original note and mortgage, it had standing to sue for foreclosure as a "holder" under the UCC and under applicable case law. There then was no need to add Freddie Mac as an indispensable party under Rule 4:28-1.

We find no error with the judge's decision as it related to compliance of the NOI with the Fair Foreclosure Act (Act). N.J.S.A. 2A:50-56(a). The NOI that was mailed to defendant appropriately referenced Wells Fargo, provided its address and otherwise complied with the Act.
 

Affirmed.

1 Defendant Nicole O. Morrison is not an appellant. She may be defendant's wife, but that is not clear from the record.

2 Defendant's objection to entry of the final judgment was denied on October 29, 2014. He has not appealed that order.

3 The note was indorsed in blank meaning that it is then "becomes payable to bearer and may be negotiated by transfer of possession alone . . . ." N.J.S.A. 12A:3-205(b). There was no evidence that Wells Fargo transferred the note.