NAVY FEDERAL CREDIT UNION v. GAVIN R. CUNNINGHAM

NOT FOR PUBLICATION WITHOUT THE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

NAVY FEDERAL CREDIT UNION,

Plaintiff-Respondent,

v.

GAVIN R. CUNNINGHAM and

KERRY M. CUNNINGHAM,

Defendants-Appellants.

______________________________

September 29, 2016

Submitted September 12, 2016 Decided

Before Judges Nugent and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-002072-13.

Gavin R. Cunningham, appellant pro se.

McCabe, Weisberg & Conway, P.C., attorneys for respondent (Carol Rogers Cobb, on the brief).

PER CURIAM

In June 2009, defendants Gavin and Kerry Cunningham executed a note secured by a mortgage in the amount of $599,620 to plaintiff Navy Federal Credit Union to refinance an existing lien. On August 1, 2012, defendants defaulted on the loan. A Notice of Intent to Foreclose (NOI), pursuant to N.J.S.A. 2A:50-56, was sent on August 31, 2012. The NOI informed defendants that they were in default of the note and mortgage, and that the failure to cure the default by October 3, 2012 would result in a foreclosure action. In January 2013, plaintiff filed a complaint for foreclosure.

Plaintiff and defendants each filed motions for summary judgment. After oral argument, summary judgment was granted to plaintiff, as the judge found that all of the elements to satisfy a foreclosure judgment were satisfied. Defendants' subsequent motion for reconsideration was denied.

In this appeal, as in their summary judgment motion, defendants argue that plaintiff lacks standing, the NOI was defective, and the judge erred in an evidentiary ruling. After a consideration of these contentions in light of the applicable legal principles, we affirm.

We review a grant of summary judgment under the same standard as the motion judge. Rowe v. Mazel Thirty, LLC, 209 N.J. 35, 41 (2012). We must determine whether there are any genuine issues of material fact when the evidence is viewed in the light most favorable to the non-moving party. Id. at 38, 41. "The inquiry is 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)) (internal quotation marks omitted). "[T]he legal conclusions undergirding the summary judgment motion itself [are reviewed] on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

To succeed on a motion for summary judgment in a foreclosure proceeding, the mortgagee must establish a prima facie case of the right to foreclose. See Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div. 1952). The mortgagee must present proof of execution, recording, and non-payment of the note and mortgage. Thorpe, supra, 20 N.J. Super. at 37.

We find insufficient merit in all of defendants' arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons given in Judge Menelaos W. Toskos's thorough oral and written decisions of August 1 and October 21, 2014. We add the following brief comments.

Plaintiff was in possession of the original note at all times and produced it at the time of the motion argument. Defendants have presented no evidence that plaintiff did not have sufficient evidence of standing.

Finally, co-defendant Gavin Cunningham's certification submitted with the motion for reconsideration stated that he had been advised by representatives of plaintiff that it did not own the note. Judge Toskos ruled his statement inadmissible under N.J.R.E. 803(b) and 408. We agree. Defendants have only provided a certification from Gavin seeking to introduce his own statement that plaintiff is not the owner of the loan. This is not admissible under Rule 803(b) as it is not a statement made by a party offered against that party. Gavin has no personal knowledge of the status of the note. See also R. 1:6-6 (regarding sworn submissions to be based on personal knowledge).

We are satisfied that the findings of the motion judge were supported by the facts in the record and that the judge soundly applied the relevant law.

Affirmed.