ASSETS RECOVERY 23 LLC v. EMMANUEL C. ODOEMENE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ASSETS RECOVERY 23, LLC,

Plaintiff-Respondent,

v.

EMMANUEL C. ODOEMENE AND

DORIS D. ODOEMENE,

Defendants-Appellants,

and

CAPITAL ONE, N.A.,

Defendant.

___________________________

December 20, 2013

Submitted November 14, 2013 Decided

Before Judges Fuentes, Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Essex County, Docket No. F-5383-11.

Emmanuel C. Odoemene and Doris D. Odoemene, appellants pro se.

Kivitz McKeever Lee, P.C., attorneys for respondent (Kristina G. Murtha, on the brief).

PER CURIAM

In this foreclosure matter, defendants Emmanuel C. Odoemene and Doris D. Odoemene appeal from the June 11, 2012 Chancery Division order, which granted summary judgment to plaintiff Assets Recovery 23, LLC and dismissed defendants' answer, and denied defendants' cross-motion to dismiss the complaint. Defendants also appeal from the January 3, 2013 final judgment.1 We affirm.

The facts are supported by certifications from plaintiff's authorized representative, which were based on her review of the original loan documents and her personal knowledge of how the documents are maintained, as well as certifications from plaintiff's attorney. On November 6, 2006, defendants executed a note to Wall Street Financial Corporation (Wall Street) in the amount of $552,000.2 To secure payment of the note, defendants executed a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Wall Street, on their rental property in Newark (the property).3 The mortgage was recorded with the Essex County Register on December 14, 2006.

Defendants defaulted on February 1, 2008. They also failed to pay approximately $61,000 in property taxes, resulting in the issuance of, and an action to foreclose upon a tax sale certificate.

On June 17, 2008, MERS, as assignee for Wall Street, assigned the mortgage to Assets Recovery Center Investments, LLC (ARCI). The note was transferred to ARCI along with the mortgage. ARCI recorded the assignment with the Essex County Register on June 19, 2009.

In early 2010, the original note was forwarded to ARCI's attorney. That attorney represents plaintiff in this case. The attorney has had the original note in her possession since the time she received it from ARCI. Defendants did not dispute that the attorney showed the original note to them and the court during proceedings in the foreclosure action ARCI brought against defendants, which was dismissed without prejudice.

On April 28, 2011, ARCI assigned the mortgage and note to plaintiff (the April 2011 assignment). The assignment provided as follows:

KNOW ALL MENS BY THESE PRESENTS that in consideration of the sum of TEN and NO/100ths Dollars and other good and valuable consideration, paid to the above named Assignor, the receipt and sufficiency of which is hereby acknowledged, said Assignor hereby assigns unto the above-named Assignee, the said Mortgage together with the Note or other evidence of indebtedness (the "Note"), said Note having an original principal sum of $552,000.00 with interest, secured thereby, together with all moneys now owing or that may hereafter become due or owing in respect thereof, and the full benefit of all the powers and of all the covenants and provisions therein contained, and the said Assignee, the Assignor's interest under the Mortgage.

TO HAVE AND TO HOLD the said Mortgage and Note, and also the said property unto the said Assignee forever, subject to the terms contained in said presents the day and year first above written.

[(Emphasis added).]

Plaintiff recorded this assignment with the Essex County Register on July 6, 2011 (the 2011 assignment).4

On July 12, 2011, plaintiff filed a complaint for foreclosure. Following the completion of discovery, plaintiff filed a summary judgment motion. Defendants filed a cross-motion to dismiss the complaint, arguing plaintiff lacked standing because it did not possess the note at the time it filed the complaint. In granting plaintiff's motion and denying defendants' cross-motion, the motion judge found defendants did not dispute the validity of the mortgage and note or their default, plaintiff established the chain of assignment, and plaintiff had physical possession of the original note prior to filing the complaint.

On appeal, defendants reiterate that plaintiff lacked standing because it did not physically possess the note at the time it filed the foreclosure complaint. They also argue the April 2011 assignment did not properly assign the note; however, the 2011 assignment disproves this argument.

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.

The evidence in this case clearly established that plaintiff had standing when it filed the foreclosure complaint. "[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. Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 319-20 (App. Div. 2012). Here, plaintiff had both possession of the original note and an assignment of the mortgage and note prior to filing the complaint. Accordingly, the judge correctly determined that plaintiff had standing in this matter, and properly granted summary judgment.

1 Although defendants also appealed from the September 21, 2012 order, which denied their motion for reconsideration, they did not address this motion on the merits in their initial brief. Thus, the issue is deemed waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2014).

2 Although the note was endorsed in blank to GreenPoint Mortgage Funding, Inc., there is no evidence it was sold to GreenPoint, and there is no assignment of the note or mortgage to that entity.

3 Defendants admitted they did not reside in the property.

4 Defendants did not include the 2011 assignment in their appendix on appeal. Plaintiff provided it to this court.