LSF8 MASTER PARTICIPATION TRUST v. TONYA SIMS

NOT FOR PUBLICATION WITHOUT THE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-5503-15T3

LSF8 MASTER PARTICIPATION
TRUST,

        Plaintiff-Respondent,

v.

TONYA SIMS,

        Defendant-Appellant,

and

MR. SIMS, husband of TONYA
SIMS and STATE OF NEW JERSEY,

     Defendants.
____________________________________

              Submitted September 27, 2017 – Decided December 21, 2017

              Before Judges Manahan and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Monmouth County, Docket No.
              F-027783-14.

              Tonya Sims, appellant pro se.

              McCabe, Weisberg & Conway, PC, attorneys for
              respondent (Carol Rogers Cobb and Sheera G.
              Engrissei, of counsel; Sheera G. Engrissei,
              on the brief).

PER CURIAM
     Defendant Tonya Sims (Sims) appeals a July 8, 2016 final

judgment foreclosing her interest in certain residential real

estate.    We affirm.

     In 2007, Sims executed a $285,264.87 note and a mortgage with

Household Finance Corp. III (Household) regarding a residential

property in Neptune.    Sims defaulted on the note in August 2010.

Household sent Sims a notice of intention (NOI) to foreclose. Sims

did not cure the default.         In March 2014, Sim's mortgage was

assigned    by   Household   to    LSF8   Master   Participation     Trust

(plaintiff) and recorded.

     In July 2014, plaintiff filed a foreclosure complaint, which

named Sims as a defendant.        Sims filed a contesting answer.         In

January 2015, shortly before the scheduled trial date, plaintiff

filed for summary judgment to strike Sim's answer and Sims filed

to dismiss the foreclosure complaint.      Trial was adjourned to hear

the motions.

     In ruling on the motions, the trial court found that plaintiff

had standing to enforce the mortgage loan because prior to filing

for foreclosure, it had possession of the original note, which was

endorsed in blank,1 and also had been assigned the mortgage.            The



1
  A note that is indorsed in blank "becomes payable to bearer and
may be negotiated by transfer of possession alone . . . ." 
N.J.S.A.
12A:3-205(b).

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court found Sims received an NOI that was compliant with the Fair

Foreclosure    Act     (Act),   
N.J.S.A.   2A:50-53   to   -68.     The   NOI

identified Household as the lender because it was sent before the

mortgage was assigned to plaintiff.           Finding no issues of fact

about the prima facie requirements to foreclose, the court granted

plaintiff's motion for summary judgment on February 20, 2015,

striking Sim's answer. A final judgment of foreclosure was entered

on July 8, 2016 after Sim's motion to fix the amount due was

denied.   Defendant appeals the final foreclosure judgment.

      On appeal, Sims contends that plaintiff lacked standing to

foreclosure, the NOI was defective because plaintiff was not

identified as the lender, and there was no proof she defaulted.

She   argues   that    plaintiff's   motion   for   summary   judgment    was

untimely and lacked a material statement of facts.                We find no

merit in any of these claims.

      We review a trial court's orders granting or denying summary

judgment under the same standard employed by the motion judge.

Globe Motor Co. v. Igdalev, 
225 N.J. 469, 479 (2016). The question

is whether the evidence, when viewed in a light most favorable to

the non-moving party, raises genuinely disputed issues of fact

sufficient to warrant resolution by the trier of fact, or whether

the evidence is so one-sided that one party must prevail as a

matter of law.        Templo Fuente De Vida Corp. v. Nat'l Union Fire

                                      3                              A-5503-15T3
Ins. Co., 
224 N.J. 189, 199 (2016); see also Brill v. Guardian

Life Ins. Co. of Am., 
142 N.J. 520, 540 (1995).

     The    trial     court's    factual   findings       were    based     on    a

certification from the bank's representative.              The certification

complied with N.J.R.E. 803(c)(6).          See New Century Fin. Servs.,

Inc. v. Oughla, 
437 N.J. Super. 299, 326 (App. Div. 2014) (citing

State v. Martorelli, 
136 N.J. Super. 449, 553 (App. Div. 1975))

("There is no requirement that the foundation witness [certifying

that a record is a business record] possess any personal knowledge

of the act or event recorded.").                 The bank's representative

certified the loan records were business records, had knowledge

of how the records were kept and maintained, personally reviewed

the records, and stated that plaintiff remained in possession of

the note.

         Sims contends plaintiff lacked standing to enforce the note

and mortgage.   A party seeking to establish its right to foreclose

on a mortgage must generally "own or control the underlying debt."

Deutsche Bank Nat'l Tr. 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)).      See    Bank   of   N.Y.      v.

Raftogianis, 
418 N.J. Super. 323, 327-28 (Ch. Div. 2010).                        In

Deutsche Bank Tr. Co. Ams. v. Angeles, 
428 N.J. Super. 315, 318

(App. Div. 2012), we held that "either possession of the note or

                                       4                                  A-5503-15T3
an assignment of the mortgage that predated the original complaint

confer[s] standing," thereby reaffirming our earlier holding in

Mitchell, 
422 N.J. Super. at 216.

       There was ample support for the court's finding that plaintiff

was in possession of the note and was assigned the mortgage before

it filed the foreclosure complaint.       "Given that the mortgage was

properly recorded and appears facially valid, under New Jersey law

there is a presumption as to its validity, and the burden of proof

as to any invalidity is on the party making such an argument."              In

re S.T.G. Enters., Inc., 
24 B.R. 173, 176 (Bankr. D.N.J. 1982)

(citations omitted).         Sims submitted nothing to the court to

overcome this presumption or to show lack of possession.

        We find no error with the judge's decision that the NOI

complied with the Act.        The NOI "is a central component of the

[Fair    Foreclosure    Act],   serving    the    important    legislative

objective of providing timely and clear notice to homeowners that

immediate action is necessary to forestall foreclosure."                 U.S.

Bank    Nat'l   Ass'n   v.   Guillaume,   
209 N.J.   449,   470   (2012).

Household, not the plaintiff, was the lender in 2010 when the NOI

was mailed.     Plaintiff was not required to send a new NOI when the

note transferred or the mortgage was assigned.

       Sims contends there was a discrepancy regarding the date in

August 2010 when she defaulted.      Even if there were, she does not

                                    5                                A-5503-15T3
claim she has been making payments or raise any factual issue

about the fact that she defaulted on the note.

    After carefully reviewing the record and the applicable legal

principles, we conclude that Sim's further arguments are without

sufficient merit to warrant discussion in a written opinion.     R.

2:11-3(e)(1)(E).

    Affirmed.




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