0WELLS FARGO BANK, N.A. v. ROSEMARY C. COLLINS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3283-14T10

WELLS FARGO BANK, N.A.,

Plaintiff-Respondent,

v.

ROSEMARY C. COLLINS and

MICHAEL J. COLLINS,

Defendants-Appellants.

____________________________

August 30, 2016

Submitted August 9, 2016 Decided

Before Judges Sabatino and Gilson.

On appeal from Superior Court of New Jersey,

Chancery Division, Bergen County, Docket No. F-10104-13.

Joseph A. Chang & Associates, LLC, attorneys

for appellants (Joseph A. Chang, of counsel; Jeffrey Zajac, on the brief).

Reed Smith, LLP, attorneys for respondent

(Henry F. Reichner and Siobhan A. Nolan, on the brief).

PER CURIAM

Defendants appeal from a March 7, 2014 order granting summary judgment to plaintiff and from a February 6, 2015 final judgment of foreclosure. We affirm.

On May 7, 2004, defendant Rosemary C. Collins executed a note to First United Mortgage Company, Inc. (First United) to purchase a residential property. Concurrently with the note, Collins and defendant Michael J. Collins executed a mortgage on the property to secure repayment of the note in favor of First United. That same day, First United executed an assignment of mortgage to Washington Mutual Bank, F.A. (Washington Mutual), which was recorded on May 21, 2004.

In February 2007, Washington Mutual assigned the mortgage to plaintiff Wells Fargo Bank, N.A. (the Bank). The assignment was recorded on February 8, 2007. Two years later in August 2009, defendants entered into a mortgage modification agreement with the Bank. In that agreement, defendants acknowledged the Bank as the "Lender" to whom they are "indebted to" as "evidenced by a note . . . secured by a mortgage to Lender[,] which mortgage was recorded or registered . . . [and] held by [the Bank] by Assignment Book 1401, page 409." The agreement was recorded on January 28, 2010.

Thereafter, defendants made their monthly mortgage payments to the Bank, until they stopped making payments in December 2011, and defaulted on the note. In April 2012, the Bank notified defendants of its intent to foreclose. Defendants failed to cure the default and in March 2013 the Bank filed a foreclosure complaint. Defendants filed an answer, asserting several affirmative defenses.

In February 2014, the Bank moved for summary judgment. In support of its motion, the Bank submitted documentary evidence of the note, mortgage, and assignment of mortgage. The Bank also produced a copy of the note endorsed in blank and a certification of its Vice President of Loan Documentation, Kimberly Brown, to establish that it was the holder of the note. In opposition, defendants challenged the Bank's possession of the note and veracity of Brown's certification.

On March 7, 2014, the trial court entered an order granting the Bank's motion for summary judgment. The court found the Bank's submissions sufficient and concluded that the Bank had demonstrated standing to foreclose. The court also found that defendants failed to proffer evidence to dispute the validity of Brown's certification. The court ultimately concluded that the Bank was the holder of the note. On February 6, 2015, the court entered a final judgment of foreclosure.

On appeal, defendants dispute the Bank's standing to foreclose and the validity of Brown's certification. In particular, defendants contend that the Bank failed to demonstrate physical possession of the note and Brown's certification does not reflect personal knowledge. Thus, defendants argue that the trial court erred by granting summary judgment. We disagree.

We review summary judgment decisions de novo and apply the same standard as the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014). That is, we consider whether there are any material factual disputes and, if there are none, whether the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 520 (1995).

In a foreclosure action, a plaintiff must establish ownership or control of the underlying debt to have standing to proceed with the matter. Wells Fargo Bank v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011). An assignee can establish standing by presenting an authenticated assignment that demonstrates the assignment occurred prior to the filing of its complaint. Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 225 (App. Div. 2011). Thus, a plaintiff has the right to foreclose if it had "either possession of the note or an assignment of the mortgage that predated the original complaint." Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing Mitchell, supra, 422 N.J. Super. at 216).

Where, as here, the plaintiff is not the original lender, to foreclose it must demonstrate that it was an entity "entitled to enforce an instrument under N.J.S.A. 12A:3-301; that is, a non-holder in possession of the instrument who has the rights of a holder." Ford, supra, 418 N.J. Super. at 598 (quoting N.J.S.A. 12A:3-301). Sufficient proofs include authenticated evidence by an individual with personal knowledge of facts demonstrating the plaintiff is in possession of the defendant's original note and mortgage, and acquired ownership through a valid assignment of the mortgage and related note. Id. at 598-99.

Applying these standards in light of the record and defendants' contentions, we conclude that the trial court properly granted summary judgment. The Bank presented sufficient evidence of execution of the note and mortgage, recording of the mortgage and its assignment, and defendants' non-payment. The assignment of the mortgage, which was notarized and recorded in February 2007, predated the March 2013 filing of the foreclosure complaint by nearly six years. The Bank's proofs also included a copy of the note endorsed in blank with Brown's certification, attesting to her personal knowledge of the facts pertaining to the Bank's status as the holder of the note. Brown certified that the Bank acquired the note and mortgage on February 1, 2007, and has since remained in possession of the instruments.

Importantly, defendants failed to offer any evidence to controvert the Bank's possession and assignment of the note and mortgage. Nor did they present any proof to raise a genuine factual dispute as to the validity of Brown's certification. Significantly, defendants conceded to the Bank's status as its "lender" as evidenced by the parties' 2009 mortgage modification agreement and defendants' subsequent payments to the Bank until the 2011 default. We are therefore satisfied that the trial court correctly concluded that the Bank had standing to foreclose.

Affirmed.