INDYMAC VENTURE, LLC v. CARMINE E. GIORDANO

NOT FOR PUBLICATION WITHOUT THE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-5060-15T1

INDYMAC VENTURE, LLC,

        Plaintiff-Respondent,

v.

CARMINE E. GIORDANO and
SHERYL A. GIORDANO, husband
and wife,

        Defendants-Appellants,

and

LLANFAIR HOUSE CARE AND
REHABILITATION CENTER,

     Defendant.
_________________________________________

              Submitted October 10, 2017 – Decided November 9, 2017

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Bergen County, Docket No.
              F-011876-12.

              Carmine E. Giordano and Sheryl A. Giordano,
              appellants pro se.

              Fein, Such, Kahn & Shepard, PC, attorneys
              for respondent (Joshua B. Sears, on the
              brief).
PER CURIAM

     In this mortgage foreclosure action, defendants Carmine E.

Giordano and Sheryl A. Giordano appeal from the May 20, 2016

final judgment of foreclosure entered in favor of plaintiff

Indymac Venture, LLC.1    Defendants also appeal from five pendente

lite orders, entered April 19, 2013, April 1, 2014, December 9,

2014, March 20, 2015, and April 29, 2016.    Following our review

of the record and applicable legal principles, we affirm.

                                  I

     We glean the following from the motion record.    In 2003,

defendants obtained a loan in the amount of $340,000 from

IndyMac Bank, FSB.   In consideration for that loan, defendants

executed a note and mortgage in favor of IndyMac Bank, FSB.

     Subsequently, IndyMac Bank, FSB failed as an institution

and, in 2009, the Federal Deposit Insurance Corporation (FDIC)

became its receiver.     Thereafter, on June 24, 2009, the FDIC

assigned defendants’ mortgage to IndyMac Venture, LLC.    On

January 27, 2012, IndyMac Venture, LLC assigned the mortgage to


1
    Defendant Llanfair House Care and Rehabilitation Center is
named in the complaint because it is another judgment creditor
of defendants; this defendant did not participate in this
appeal. For simplicity, for the balance of this opinion the
term “defendants” refers only to Carmine E. Giordano and Sheryl
A. Giordano.

                                  2
                                                           A-5060-15T1
OneWest Bank, FSB (OneWest).   On June 27, 2012, OneWest filed

the within action, alleging defendants defaulted on their

mortgage in September 2009 and remained in default.

    While the litigation was still pending, on September 15,

2014, OneWest assigned the mortgage back to plaintiff Indymac

Venture, LLC.   On December 9, 2014, the court entered an order

stating the complaint and all subsequent pleadings were amended

to reflect that plaintiff is IndyMac Venture, LLC.

    During the litigation, various motions were filed that

resulted in the orders defendants now appeal.   We surmise these

were the only orders before the entry of final judgment.    We

review those motions and the ensuing orders, but for the sake of

brevity exclude reference to any issue in those motions not

relevant to the arguments defendants raise on appeal.

     Order of April 19, 2013 - In 2013, plaintiff filed a

motion for summary judgment, which also included a request to

amend the complaint to name a judgment creditor inadvertently

excluded from the complaint.   In their response, defendants

claimed plaintiff lacked standing to file the complaint because

it was not in possession of the mortgage when the complaint was

filed.   In its reply, plaintiff pointed out defendants failed to

support its claim with any evidence.


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                                                           A-5060-15T1
    On April 19, 2013, the court struck defendants' answer and

entered default against them; granted plaintiff permission to

amend the complaint in the manner requested; and permitted

plaintiff to seek judgment through the Office of Foreclosure as

an uncontested action.   The order stated the court’s reasons

were set forth on the record, but defendants failed to include a

copy of the transcript of the court’s decision in the record.

    Plaintiff promptly filed an amended complaint, to which

defendants filed an answer asserting various defenses, including

that plaintiff did not have standing.

    Order of April 1, 2014 - In 2014, plaintiff filed another

motion for summary judgment, essentially arguing it was entitled

to the entry of a judgment of foreclosure because it was the

holder of defendants’ mortgage, defendants defaulted on the

mortgage, and there were no facts to support any of the defenses

in defendants’ answer.

    Defendants filed a response and a cross motion to dismiss

the complaint.   Defendants did not contest there was in fact an

assignment of the mortgage to OneWest before it filed its

complaint in foreclosure.   Instead, defendants claimed OneWest

had previously taken the position the mortgage had been assigned

to it in 2009, rendering OneWest’s subsequent claim it was

assigned the mortgage in 2012 inconsistent and untrustworthy.
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                                                         A-5060-15T1
Defendants further contended all signatures affixed to any

previous assignments and allonges were forged.

     We note here it is clear from a review of the record

defendants simply misunderstood the documentary evidence, which

demonstrates Onewest was assigned the mortgage in January 2012,

before the complaint was filed in June 2012.   Even if OneWest

had taken the position it obtained the mortgage in 2009, the

fact remains OneWest was in possession of the mortgage when it

filed its complaint.

    Defendants also argued the Notice of Intention to Foreclose

(NOI) was defective because it stated IndyMac Mortgage Services,

not OneWest, was the holder of the mortgage.   There is no

dispute IndyMac Mortgage Services is a division of OneWest.

    In its decision, the court found the technical error in the

NOI insignificant.   After noting “IndyMac, [is] now a part of

One West,” the court stated, “[i]f there is a technical

inadequacy of the NOI, applying princi[ples] of equity to both

plaintiff and defendant, I will not require a new NOI or require

the plaintiff to withhold for 2 months an application to enter

final judgment . . . . [T]he default date is September 1, 2009.”

Finding defendants failed to produce any material facts to

support their remaining arguments, the court denied defendants’

cross motion.
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                                                          A-5060-15T1
    The court struck defendants’ answer and entered default

against them.   The court also permitted the matter to proceed to

the Office of Foreclosure for further disposition.   See R. 4:64-

1(d).

    Order of December 9, 2014 – As previously stated, on this

date the court entered an order finding the complaint and all

subsequent pleadings deemed amended to state plaintiff is

IndyMac Venture, LLC.   Defendants did not provide in its record

a copy of the court’s decision.

    Order of March 20, 2015 – Defendants filed a motion to

reconsider the April 1, 2014 and December 9, 2014 orders.

Citing D’Atria v. D'Atria, 
242 N.J. Super. 392, 401 (Ch. Div.

1990), the court denied the motion on the ground defendants

failed to bring any new evidence or law to the court’s

attention.

    Order of April 29, 2016 – Plaintiff filed a motion for

entry of final judgment with the Office of Foreclosure, pursuant

to Rule 4:64-1(d).   Defendants responded by filing a motion to

fix the amount due, challenging the sufficiency of plaintiff’s

proofs in its certification in support of its motion for entry

of final judgment.

    The court denied defendants’ objection, noting they failed

to produce any evidence contesting the amount due.   On May 20,
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                                                         A-5060-15T1
2016, the court entered final judgment in favor of plaintiff and

against defendants.

                                      II

    On appeal, defendants assert the following arguments for

our consideration:

           POINT I - THE TRIAL COURT ERRED IN ITS
           CONCLUSION THAT ONEWEST BANK HAD STANDING TO
           FILE THE COMPLAINT.

           POINT II - INADEQUATE CERTIFICATION TO
           SUPPORT SUMMARY JUDGMENT.

           POINT III - THE NOTICE OF INTENTION TO
           FORECLOSE IS DEFECTIVE.

           POINT IV - THE COMPLAINT MUST BE DISMISSED
           UNDER THE UNCLEAN HANDS DOCTRINE.

    Having scrutinized the record and applicable legal

authority, we are satisfied none of defendants’ arguments

possesses sufficient merit to warrant discussion in a written

opinion.   R. 2:11-3(e)(1)(E).   We note some of the arguments

were not raised before the trial court and, 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).     Defendants do not articulate any argument in

support of its third argument point, and their remaining

arguments are not supported by the record.        We add only the

following brief comment.

                                  7
                                                              A-5060-15T1
    OneWest demonstrated its standing to foreclose the mortgage

based upon its assignment of the mortgage from IndyMac Venture.

Upon that assignment, plaintiff became the holder of the

mortgage.    The assignment predated the filing of the foreclosure

complaint.   As holder of the mortgage, OneWest had standing to

file a complaint in foreclosure and enforce the mortgage in this

foreclosure proceeding.   See Deutsche Bank Nat'l Trust Co. v.

Mitchell, 
422 N.J. Super. 214, 222 (App. Div. 2011).

    Affirmed.




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