US BANK, NATIONAL ASSOCIATION v. MARCELLUS GALLIMORE

NOT FOR PUBLICATION WITHOUT THE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 only binding 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

US BANK, NATIONAL ASSOCIATION, as

Trustee for GSAMP TRUST 2005-AHL2,

MORTGAGE PASS-THROUGH CERTIFICATES,

SERIES 2005-AHL2,

Plaintiff-Respondent,

v.

MARCELLUS GALLIMORE,

Defendant-Appellant,

and

PRUDENCE MOON and STATE OF NEW JERSEY,

Defendants.

_______________________________________

October 6, 2016

Submitted September 27, 2016 Decided

Before Judges Ostrer and Vernoia.

On appeal before the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-027024-13.

Marcellus Gallimore, appellant pro se.

Duane Morris, LLP, attorneys for respondent (Brett L. Messinger and Kelly K. Bogue, of counsel and on the brief).

PER CURIAM

Defendant Marcellus Gallimore appeals an August 24, 2014 Chancery Division order granting plaintiff's motion for summary judgment for foreclosure and striking defendant's answer and affirmative defenses with prejudice.1 Based upon our review of the record in the context of the applicable law, we affirm.

I.

We discern the following undisputed facts from the record and view the facts and all reasonable inferences therefrom in the light most favorable to defendant because he is the party against whom summary judgment was entered. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

On September 28, 2005, defendant signed a promissory note (note) in the amount of $305,000 in favor of Axiom Financial Services (Axiom). As security for the obligations in the note, defendant also executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as the nominee of Axiom. The mortgage granted a security interest on residential property located in Irvington.

The mortgage was transferred by MERS to plaintiff by an assignment of mortgage. The assignment of mortgage was recorded on June 26, 2013 in the Essex County Clerk's Office.

Defendant acknowledges that he defaulted on his obligations under the note. Plaintiff sent a notice of intent to foreclose to defendant's mailing address and to the property's street address.

Plaintiff filed a complaint for foreclosure on July 31, 2013. Defendant filed an answer and affirmative defenses, including defenses alleging that plaintiff lacked standing and had failed to comply with the requirements of the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68.

In July 2014, plaintiff filed a motion for summary judgment. Defendant opposed the motion, claiming that plaintiff lacked standing to foreclose because it was not in possession of the note. Defendant further argued that the certification of Lisa Clark, which was submitted in support of plaintiff's motion, could not support a grant of the summary judgment motion because it was not based upon Clark's personal knowledge. Defendant also argued that plaintiff failed to comply with the notice requirements of the FFA.

The Chancery Division judge granted plaintiff's motion for summary judgment and struck defendant's answer and affirmative defenses. In his written statement of reasons, the judge found that the undisputed facts established that the mortgage was valid, defendant was in default of his obligations under the note, and that plaintiff had a right to foreclose on the mortgaged property.

The court rejected defendant's assertion that Clark's certification was not based upon her personal knowledge. In the certification, Clark stated that she was employed by the loan servicer for plaintiff, she personally reviewed the records maintained in the ordinary course of business concerning the note, mortgage, assignment of mortgage, and defendant's payment history, and the records revealed that plaintiff was in default. Clark also certified that she had personal knowledge that plaintiff was in actual possession of the note and mortgage. The court determined that Clark's certification was sufficiently based upon her personal knowledge to support entry of summary judgment against defendant.

Last, the court rejected defendant's assertion that plaintiff failed to comply with the FFA's requirements. The court found that the uncontroverted evidence established that plaintiff sent defendant a timely and proper notice of intention to foreclose under the FFA.

The court entered an order on August 21, 2014 granting plaintiff's motion for summary judgment and striking defendant's answer and affirmative defenses. On February 27, 2015, a final judgment of foreclosure was entered. This appeal followed.

II.

In our review of a grant of summary judgment, we apply the same legal standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We must determine whether there is a "genuine issue as to any material fact" when the evidence is "viewed in the light most favorable to the non-moving party." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (first quoting R. 4:46-2(c), then quoting Brill, supra, 142 N.J. at 540). The "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference" and are reviewed de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010).

In a mortgage foreclosure proceeding, the court must determine three issues: the validity of the mortgage, the amount of the indebtedness and default, and the right of the plaintiff to foreclose on the mortgaged property. Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994). On appeal, defendant concedes that the mortgage is valid, he is indebted under the note, and is in default. He argues only that the motion court erred because Clark's certification was not based upon personal knowledge and therefore could not support the court's determination that plaintiff had standing to bring the foreclosure action.

A party initiating a foreclosure proceeding "must own or control the underlying debt" obligation at the time an action is initiated to demonstrate standing to foreclose a mortgage. Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214, 222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)). Absent a showing of ownership or control, a "plaintiff lacks standing to proceed with the foreclosure action and the complaint must be dismissed." Ibid. (quoting Ford, supra, 418 N.J. Super. at 597). "[E]ither possession of the note or an assignment of the mortgage that predated the original complaint confer[s] standing." Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 (App. Div. 2012) (citing Mitchell, supra, 422 N.J. Super. at 225).

Clark's certification reflects that the plaintiff was the holder of the note before it filed the foreclosure complaint and was in possession of the note. Clark also certified that the assignment of mortgage to plaintiff was recorded on June 26, 2013, more than one month prior to plaintiff's filing of the foreclosure complaint on July 31, 2013. Clark's certification therefore supported the court's conclusion that plaintiff had standing to bring the foreclosure action because it established that there was an assignment of the mortgage and plaintiff possessed the note prior to the filing of the foreclosure complaint. Ibid. Defendant offered no competent evidence to the contrary.

We are not persuaded by plaintiff's contention that Clark's certification was not based upon personal knowledge as required by Rule 1:6-6. The certification expressly states that Clark's knowledge was obtained by her personal review of records made in the regular course of her employer's business, at or near the time of the events, and recorded by persons with knowledge of the activity and transactions memorialized in the records. The documents upon which Clark's certification was based were admissible as business records under N.J.R.E. 803(c)(6). State v. Sweet, 195 N.J. 357, 370 (2008), cert. denied, 557 U.S. 934, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009). There was no requirement that Clark possess personal knowledge of the events reflected in the records. New Century Financial Servs. v. Oughla, 437 N.J. Super. 299, 326 (App. Div.) (citing State v. Martorelli, 136 N.J. Super.449, 453 (App. Div. 1975), certif. denied, 69 N.J. 445 (1976)),certif. denied, 218 N.J. 531 (2014); cf., Ford, supra, 418 N.J. Super. at 599-600 (finding a certification supporting a summary judgment motion inadequate because it did not indicate it was based upon personal knowledge and did not reflect the source of knowledge of the facts stated).

Defendant's remaining contention -- that the court erred by rejecting his argument that plaintiff failed to comply with the requirements of the FFA -- is contradicted by the record. Defendant's singular assertion is that the notice of intention to foreclose was deficient under N.J.S.A. 2A:50-56(c)(11) because it did not include the plaintiff's name and address as the lender and a phone number of a representative that defendant could contact regarding the foreclosure.

As the motion court correctly concluded, the notice of intention to foreclose, which defendant acknowledges was provided by plaintiff, identified plaintiff as the lender, listed its address, included a telephone number of a representative that defendant could contact to discuss plaintiff's intention to foreclose, and contained other information related to the foreclosure. The undisputed evidence therefore established that the notice of intention did not suffer from the deficiencies under N.J.S.A. 2A:50-56(c)(11) that were claimed by defendant and upon which he relied in opposing plaintiff's motion for summary judgment.

Affirmed.

1 In defendant's notice of appeal, he appealed the August 21, 2014 order granting plaintiff's motion for summary judgment and striking defendant's answer and affirmative defenses. In his subsequently filed amended notice of appeal, defendant indicated that he was appealing only the February 27, 2015 final judgment of foreclosure. In his brief on appeal, defendant's arguments are limited to the court's entry of the August 21, 2014 order. We therefore address only defendant's appeal of the August 21, 2014 order.