U.S. BANK NATIONAL ASSOCIATION v. JAMES J. PEIRANO, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

U.S. BANK NATIONAL ASSOCIATION,

AS TRUSTEE FOR SG MORTGAGE

SECURITIES ASSET BACKED

CERTIFICATES, SERIES 2006-FRE2,

Plaintiff-Respondent,

v.

JAMES J. PEIRANO, JR.,

Defendant-Appellant.

_____________________________________

December 24, 2015

Submitted November 18, 2015 Decided

Before Judges Haas and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. F-34105-08.

James J. Peirano, Jr., appellant pro se.

Reed Smith, LLP, attorneys for respondent (Henry F. Reichner, of counsel; Molly Q. Campbell, on the brief).

PER CURIAM

In this mortgage foreclosure case, defendant James J. Peirano, Jr., appeals from the August 8, 2014 order of the Chancery Division, granting plaintiff U.S. Bank National Association's motion to amend the final judgment and denying defendant's cross-motion to fix the amount due and strike the certification of diligent inquiry. We affirm.

On October 5, 2009, the court entered an order in a foreclosure action granting summary judgment in favor of plaintiff, based upon defendant's default on a mortgage encumbering a residence in Lacey Township. On August 11, 2010, the Office of Foreclosure entered final judgment against defendant. Following entry of the final judgment, defendant filed a notice of appeal on October 12, 2010. Defendant withdrew the appeal in February 2011.

Defendant then filed a motion in the Chancery Division seeking to vacate the final judgment and dismiss the foreclosure complaint. The court denied the motion on March 4, 2011.

On April 25, 2011, defendant filed another notice of appeal, this time challenging the October 5, 2009 order granting summary judgment in favor of plaintiff, as well as the March 4, 2011 order denying defendant's motion to vacate the judgment and dismiss the complaint. We dismissed defendant's appeal as untimely in an unpublished opinion. US Bank N.A. v. Peirano, No. A-4056-10 (App. Div. June 5, 2012), certif. denied, 212 N.J. 455 (2012).

On July 19, 2012, plaintiff filed an order to show cause seeking to issue corrected notices of intent to foreclose, in an effort to comply with US Bank Nat'l Ass'n v. Guillame, 209 N.J. 449 (2012). The application was granted, and defendant was served with a corrected "Notice of Intent to Foreclose." Plaintiff also filed and served a "Certification of Diligent Inquiry and Accuracy of Foreclosure Documents and Factual Assertions" in compliance with Rule 4:64-2(d).

In May 2014, plaintiff filed a notice of motion to amend the final judgment and writ of execution. In response, defendant filed a cross-motion seeking to correct the amount due and strike the certification of diligent inquiry. On August 8, 2014, following oral argument, the court denied defendant's cross-motion and granted plaintiff's application to amend the final judgment. This appeal follows.

Defendant raises the following arguments on appeal

POINT I

THE TRIAL COURT ERRED UPHOLDING THE CERTIFICATION OF DILIGENT INQUIRY AND ACCURACY OF FORECLOSURE DOCUMENTS AND FACTUAL ASSERTIONS.

POINT II

THE TRIAL COURT ERRED UPHOLDING THE INACCURATE AMOUNT DUE ON FINAL JUDGMENT.

Defendant argues that an attorney with plaintiff's foreclosure counsel improperly executed an assignment of the mortgage, and that another attorney with plaintiff's foreclosure counsel improperly executed the certification of diligent inquiry. Defendant also disputes the amount due on the final judgment. We conclude that defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following.

In uncontested cases,1 "[t]he application for entry of judgment shall be accompanied by proofs as required by [Rule] 4:64-2." R. 4:64-1(d)(1). Rule 4:64-2(a) requires the foreclosing plaintiff seeking judgment to submit an affidavit supported by any document upon which the claim is based, including (but not limited to) the original mortgage, evidence of indebtedness, and assignments. The affidavit must include "an affidavit of amount due," which must have a schedule annexed setting forth "the principal due as of the date of default; [and] advances authorized by the note or mortgage for taxes, hazard insurance and other stated purposes . . . ." R. 4:64-2(b). The affidavit "may be supported by computer-generated entries." Ibid.

The moving party must also supply a certification of diligent inquiry. R. 4:64-2(d). In this certification, the attorney preparing the motion must state that he or she has spoken to an employee of the plaintiff who has personally reviewed the affidavit of amount due, "the original or true copy of the note, mortgage and recorded assignments . . . being submitted" and that the employee has confirmed their accuracy. R. 4:64-2(d).

Rule 4:64-1 and -2 require certifications by attorneys representing foreclosing plaintiffs to be annexed to the complaint and to motions to enter default judgment, including a certification of diligent inquiry regarding the loan transaction and attesting that the complaint and all supporting documents comport with the requirements of Rule 1:4-8(a). R. 4:64-1(a)(2)(A) and (B), (3); R. 4:64-2(c), (d); see also Pressler & Verniero, Current N.J. Court Rules, comments 1 and 2 on R. 4:64-1, comment 1 on R. 4:64-2 (2016). Here, the certification of diligent inquiry executed by plaintiff's foreclosure counsel satisfied the Rule's requirements including assertions of compliance with the provisions of Rule 1:4-8(a).2 The certification did not require personal knowledge pursuant to Rule 1:6-6.

Contrary to defendant's contention, plaintiff supplied all of the required documents at the time it filed its motion pursuant to Rule 4:64-2, including: a certification of amount due, a detailed schedule listing those amounts, and a computer generated payment history (not required under the Rule). In light of the substantial documentation supporting plaintiff's motion for an amended judgment, we conclude that defendant's objection to the amount due lacks the requisite specificity identified in Rule 4:64-1(d)(3). See also MONY Life Ins. Co. v. Paramus Parkway Bldg. Ltd., 364 N.J. Super. 92, 106 (App. Div. 2003) (concluding that no hearing was warranted where defendant failed to offer conflicting proof or establish a contested fact to be resolved).

Affirmed.

1 Pursuant to Rule 4:64-1(c)(3), the matter was considered uncontested as defendant's pleadings were stricken when summary judgment was entered in favor of plaintiff.

2 We also note that the mortgage was properly assigned. Plaintiff provided proof in support of its motion for summary judgment that foreclosure counsel was authorized to "[a]ssign the lien of any mortgage loan registered on the [Mortgage Electronic Registration System, Inc.] System . . . ."