THE HUNTINGTON NATIONAL BANK v. THOMAS CULLEN

NOT FOR PUBLICATION WITHOUT THE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-5461-15T3



THE HUNTINGTON NATIONAL
BANK,

        Plaintiff-Respondent,

v.

THOMAS CULLEN, MRS. THOMAS
CULLEN, HIS WIFE, FELICE
CULLEN, MR. CULLEN HUSBAND
OF FELICE CULLEN,

        Defendants-Appellants.

______________________________________

              Submitted August 8, 2017 – Decided December 8, 2017

              Before Judges O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Ocean County, Docket No.
              F-006521-12.

              Thomas Cullen and Felice Cullen, appellants
              pro se.

              Barry M. Kazan (Thompson Hine) attorney for
              respondent.

PER CURIAM
    In this contested mortgage foreclosure action, defendants

Thomas Cullen and Felice Cullen appeal from the July 5, 2016

final judgment of foreclosure entered in favor of plaintiff

Huntington National Bank.    Defendants also appeal from five

pendente lite orders, entered February 6, 2015, May 22, 2015,

June 10, 2016, and June 24, 2016.    We affirm.

    In 2001, defendants executed a note in favor of

Metropolitan Bank and Trust Company (Metropolitan) in the amount

of $191,000.    To secure such note, defendants executed a

mortgage to Metropolitan encumbering their residential property.

In 2003, Metropolitan was acquired by Sky Bank through a merger

and in 2007, plaintiff acquired Sky Bank, also through a merger.

    When plaintiff acquired Sky Bank, it obtained possession of

defendants' note and mortgage.   In 2011, defendants defaulted on

the mortgage.   Plaintiff served defendants with a notice of

intention to foreclose and, in 2012, filed a foreclosure

complaint and amended foreclosure complaint.

    The matter went to trial on the merits.       At the conclusion

of the trial, among other things, the Chancery Court determined

plaintiff was the holder of the note and mortgage when it filed

its complaint and amended complaint and thus possessed the

requisite standing to bring this action.    The court also found

defendants defaulted on the mortgage and were properly served
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with a notice of intention to foreclose.   On May 22, 2015, the

court entered an order striking defendants' answer and referred

this matter to the Office of Foreclosure for further

proceedings, see Rule 4:64-1(c).

    In June 2016, defendants filed a motion to dismiss the

amended complaint, contending they learned from the Federal Home

Loan Mortgage Corporation's website it owned defendants'

mortgage and note. Defendants argued such information

demonstrated the evidence plaintiff introduced at trial to

establish it was the holder of the note and mortgage at the time

it filed the complaint was false.   On June 24, 2016, the court

entered an order denying defendants' motion.   In its oral

decision, the court noted a party can foreclose upon a mortgage

even if it is not the owner but merely the holder of a mortgage

and, here, plaintiff proved it was the holder of defendants'

note and mortgage when it filed the within matter.   The final

judgment was entered on July 5, 2016.

    On appeal, defendants assert the following arguments for

our consideration:

         POINT I – PLAINTIFF GAVE FALSE TESTIMONY
         ABOUT NOT SELLING THE SUBJECT LOAN AND
         IDENTIFYING ITSELF AS THE LENDER IN THE
         NOTICE OF INTENTION TO FORECLOSE.

         POINT II – PLAINTIFF GAVE FALSE TESTIMONY
         ABOUT POSSESSING THE ORIGINAL NOTE.
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         POINT III – PLAINTIFF DID NOT HAVE STANDING
         TO FILE THE COMPLAINT.

         POINT IV – PLAINTIFF'S OPPOSITION PAPERS DID
         NOT DISPUTE THE WITNESS GAVE FALSE TESTIMONY
         ABOUT PLAINTIFF NOT SELLING THE SUBJECT LOAN
         AND MISSTATING ITSELF AS THE LENDER IN THE
         NOTICE OF INTENTION TO FORECLOSE, AND
         PLAINTIFF POSSESSING THE ORIGINAL NOTE.

         POINT V – THE TRIAL SHOULD HAVE DISMISSED
         THE COMPLAINT UNDER THE UNCLEAN HANDS
         DOCTRINE.

    Having reviewed 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 merely note that as holder of the mortgage,

plaintiff 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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