PENNYMACHOLDINGS, LLC v. PETER STRANSKY

NOT FOR PUBLICATION WITHOUT THE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-0504-15T2

PENNYMAC HOLDINGS, LLC,

        Plaintiff-Respondent,

v.

PETER STRANSKY,

     Defendant-Appellant.
________________________________

              Submitted October 18, 2017 – Decided March 29, 2018

              Before Judges Nugent and Currier.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Monmouth County, Docket No.
              F-009316-14.

              Peter Stransky, appellant pro se.

              Blank Rome, LLP, attorneys for respondent
              (Donna M. Bates and Lauren E. O'Donnell, on
              the brief).

PER CURIAM

        This is a residential mortgage foreclosure action.              Defendant

Peter Stransky appeals from a September 5, 2014 order entering
summary judgment and an August 14, 2015 final judgment. 1                     On

appeal, in fifteen arguments, he challenges various aspects of the

foreclosure proceedings, the final judgment, and the writ of

execution scheduling a sheriff's sale of the foreclosed property.

In one argument, he challenges the final judgment and writ of

execution   because   the   lot   and       block   numbers   designating   the

foreclosed property in those documents are different from the lot

and block numbers identifying the property in the mortgage.                   We

remand this matter for clarification and if necessary corrections

to those documents. We find defendant's remaining arguments devoid

of merit.

     These are the facts.     In June 2011, defendant defaulted on a

$320,000 loan evidenced by a note and secured by a mortgage on

residential property located in Howell Township.                  Three years

later, in March 2014, plaintiff commenced a foreclosure action.

During the foreclosure proceedings, a Chancery Division judge

entered a September 5, 2014 order granting plaintiff's summary

judgment motion, striking defendant's answer and counterclaim, and

referring the matter to the Office of Foreclosure for the entry



1
  Defendant asserts his first name is spelled "Petr."                       His
illegible signature on the note and mortgage appear above                   the
typewritten name, "Peter" Stransky.     The complaint, order                 of
summary judgment, and final judgment name "Peter" Stransky.                  We
thus use the name "Peter" in his opinion.

                                        2                              A-0504-15T2
of a final judgment.    The court entered final judgment on August

14, 2015.

     Defendant signed the note over a signature line bearing the

typewritten name of the borrower, "Peter Stransky," and signed the

mortgage over a signature line bearing the typewritten name of the

borrower, "Peter Stransky."       His handwritten signature on the

documents is illegible, but he has never denied signing them.

     The Note contained an allonge2 and endorsement in blank.

Defendant executed the mortgage in favor of Mortgage Electronic

Registration Systems, Inc. (MERS), as nominee for the lender,

Accredited Home Lenders.     The Howell Township property subject to

the mortgage was identified in the mortgage by a metes and bounds

description with this concluding paragraph: "The above premises

is also known as Lot 29 in Block 156 on the official tax map of

the Township of Howell.      (Reported for information only)."           The

Mortgage was recorded on March 16, 2006.

     The mortgage was assigned twice.          On October 19, 2011, MERS,

as nominee of Accredited Home Lenders, assigned the Mortgage to

JPMC Specialty Mortgage, LLC f/k/a WM Specialty Mortgage, LLC

(JPMC).     The   Monmouth   County       Clerk's   Office   recorded   this



2
    An allonge is "[a] slip of paper sometimes attached to a
negotiable instrument for the purpose of receiving . . .
indorsements." Black's Law Dictionary 92 (10th ed. 2014).

                                      3                             A-0504-15T2
assignment on November 9, 2011. As previously explained, defendant

defaulted on June 1, 2011.            Two years later, on June 17, 2013,

before   JPMC    assigned    the   mortgage       to    plaintiff,   JPMC    served

defendant with a Notice of Intent to Foreclose.

      The second assignment took place on January 10, 2014, seven

months after JPMC served defendant with the Notice of Intent. JPMC

assigned the Mortgage to plaintiff, PennyMac Holdings, LLC.                     This

assignment was recorded in the Monmouth County Clerk's Office on

February 5, 2014.     Thus, the mortgage assignment to plaintiff was

recorded a month before plaintiff filed the foreclosure complaint

on March 12, 2014.

      Defendant filed an answer, which he later amended.                         The

amended answer included affirmative defenses and counterclaims.

Thereafter,      plaintiff    filed    a       motion   for   summary   judgment.

Plaintiff argued defendant's "answer and counterclaim[s] . . .

set[] forth no genuine issue as to any material fact challenged

and that [it was] entitled to a judgment as a matter of law."

      Several days before the motion's return date, defendant filed

a "Motion to Produce an Original 'Wet-Ink' Note, Proof of Alleged

Debt and Proof of Ownership of Alleged Debt."                  On the day of the

hearing, the court noted defendant was not present, despite the

matter having been previously adjourned at his request.                      Before

the   court     rendered    its    decision,      it    questioned   plaintiff's

                                           4                                A-0504-15T2
attorney as to defendant's contention that his name was spelled

incorrectly.        Counsel replied it could be corrected by adding an

"a/k/a" to the order since defendant, having entered an appearance,

clearly was not disputing whether he had been served with the

complaint, nor was he disputing he had taken out the loan.

     The court granted the motion.              In its confirming order the

court mistakenly marked the motion "unopposed," even though it had

discussed     defendant's     opposition       during   the     delivery     of   its

opinion     from    the   bench.   Two       weeks   later,    the   court    denied

defendant's motion to compel discovery.                 The court entered the

final foreclosure judgment on August 14, 2015.

     The     same    day,   plaintiff    obtained       a     writ   of   execution

scheduling the mortgage property for a sheriff's sale.                    The final

judgment and writ of execution contained the same metes and bounds

description as that contained in the mortgage, but identified the

property as "Block 
156 Lot 28 and 29 Tax map of the Township of

Howell."3    The mortgage had identified the property as "Lot 29 in

Block 156 on the official tax map of the Township of Howell.

(Reported for information only)."              The Howell tax map shows Lots



3
    It is not entirely clear from the collation of defendant's
appellate appendix that the identical metes and bounds description
was the same in the final judgment and writ of execution. Such
appears to be the case, however, and plaintiff does not dispute
it.

                                         5                                   A-0504-15T2
28 and 29 as contiguous parcels.           Lot 28 appears to have more area

than Lot 29.

      Following the entry of final judgment, plaintiff filed this

appeal.     We granted his motion to stay the sheriff's sale.                    On

appeal, defendant makes numerous arguments challenging nearly

every aspect of the foreclosure proceedings and writ of execution.

Defendant argues the court did not have personal jurisdiction over

him because he was not properly named in the pleadings and his

legal identity was abused.           He also argues plaintiff failed to

comply with the Fair Foreclosure Act, did not demonstrate a proper

chain of assignments of the mortgage, and did not have standing

to file the foreclosure complaint.             He asserts the trial court

disregarded the Uniform Commercial Code in finding plaintiff had

standing.    Defendant contends the trial court erred by striking

his counterclaim, denying his motion to compel discovery, and

granting plaintiff's summary judgment motion before discovery was

complete    and   without   adequately       considering     his    opposition.

Defendant claims all these decisions are unsupported by adequate

facts and reasons.

      Defendant challenges the final foreclosure judgment and writ

based on these documents' inclusion of a lot number not contained

in the mortgage.      He contends the trial court did not set forth

the   specific    description   of    the    property   to   be    sold   at   the

                                       6                                  A-0504-15T2
sheriff's sale, thus enabling plaintiff to fraudulently modify the

property description and include property not described in the

mortgage.

     With one exception, we find defendant's arguments devoid of

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

2:11-3(e)(1)(E).   The exception is the variance in the lot numbers

between the mortgage and the final foreclosure judgment.         The

mortgage refers only to Lot 29; the final judgment refers to Lots

28 and 29.   Although the legal description is consistent in the

mortgage and final judgment, we cannot determine from the appellate

record whether the legal description is that of Lot 28 or both

Lots 28 and 29.

     To avoid confusion about the mortgaged property, and to avoid

possible confusion at the sheriff's sale, we vacate the final

foreclosure judgment and remand this matter to the trial court to

resolve the discrepancy.     If plaintiff concedes the mortgage

includes only Lot 29, then it would seem a proper final judgment

can be entered without much difficulty.     On the other hand, if

there is a dispute about whether the legal description encompasses

both lots, then the trial court will have to conduct a hearing and

resolve the matter.




                                 7                          A-0504-15T2
     The final judgment is vacated and the matter remanded for

further proceedings consistent with this opinion. We do not retain

jurisdiction.




                                8                          A-0504-15T2