WELLS FARGO BANK, N.A. v. BLYTHE JOHNSON

NOT FOR PUBLICATION WITHOUT THE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 binding only 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-1325-15T4


WELLS FARGO BANK, N.A.,

        Plaintiff-Respondent,

v.

BLYTHE JOHNSON, her heirs,
devisees, and personal
representatives and his/her
their, or any of their
successors in right, title
and interest, MR. JOHNSON,
husband of Blythe Johnson, his
heirs, devisees, and personal
representatives and his/her,
their, or any of their successors
in right, title and interest,
and CACH of NJ, LLC,

        Defendants-Appellants.

__________________________________________

              Submitted August 1, 2017 – Decided December 12, 2017

              Before Judges O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Hudson County, Docket No.
              F-044840-14.

              Law Offices of Montell Figgins, attorneys
              for appellant (Montell Figgins, on the
              brief).
            Reed Smith, LLP, attorney for respondent
            (Henry F. Reichner, on the brief).

PER CURIAM

     In this foreclosure action, defendant Blythe Johnson

appeals from the October 21, 2015 final judgment foreclosing her

interest in her residential real property.1    We affirm.

     On April 29, 2009, defendant executed a note in favor of

ISB Mortgage Company, LLC (ISB) in the sum of $309,275.     To

secure such note, defendant executed a mortgage to ISB

encumbering her residential property.     That same day, ISB

endorsed the note and assigned the mortgage to plaintiff Wells

Fargo, N.A.    Defendant subsequently entered into two loan

modification agreements with plaintiff.    The second agreement

made the unpaid principal balance of the note $317,506.77.

     Defendant defaulted on the note and mortgage on January 1,

2014.   Plaintiff filed a foreclosure complaint on October 24,

2014; defendant filed a timely answer.     On February 5, 2015, the

Chancery Court ordered that May 12, 2015 was the discovery end

date.   On April 24, 2015, defendant filed a motion for summary

judgment.     On June 17, 2015, the Chancery Court entered summary

judgment in favor of plaintiff, struck defendant's answer, and


1
   Although there are two other named defendants, neither has
appealed the final judgment.    For simplicity, our reference to
"defendant" in this opinion refers only to Blythe Johnson.

                                  2                         A-1325-15T4
referred this matter to the Office of Foreclosure as an

uncontested matter for further proceedings, see Rule 4:64-1(c).

No objection was entered, see Rule 4:64-1(d)(3), and final

judgment was entered on October 21, 2015.

    On appeal, defendant contends:    (1) plaintiff was not the

holder of the note and thus lacked standing to foreclose upon

plaintiff's mortgage; (2) plaintiff's claim the mortgage had

been assigned to it was not supported by competent evidence; (3)

defendant is entitled to vacatur of the final judgment pursuant

to Rule 4:50-1(a) because she has a meritorious defense and

demonstrated excusable neglect; (4) defendant is entitled to

vacatur of the final judgment pursuant to Rule 4:50-1(f) as a

matter of justice; and (5) the Chancery Court erred by entering

summary judgment before discovery had been completed.

    With the exception of the fifth argument, none of these

arguments was raised before the Chancery Court.   "Generally, an

appellate court will not consider issues, even constitutional

ones, which were not raised below."   State v. Galicia, 
210 N.J.
 364, 383 (2012).   As for the fifth argument, the Chancery Court

determined the discovery defendant sought had been produced by

plaintiff.

    Moreover, the court found defendant failed to show how any

further discovery would influence the outcome of the motion,

                                3                         A-1325-15T4
citing in support Wellington v. Estate of Wellington, 
359 N.J.

Super. 484 (App. Div.) certif. denied, 
177 N.J. 493 (2003).      In

Wellington, we held a party who asserts a summary judgment

motion is premature on the ground discovery is incomplete must

demonstrate the likelihood the missing discovery would impact

the court's decision on the motion.   Id. at 496.

    We concur with the court's analysis and disposition of this

issue for the reasons set forth in its written decision.

Accordingly, the decision of the Chancery Court is affirmed.

    Affirmed.




                               4                           A-1325-15T4