HSBCBANK USA, NA v. LINDA VIERA

NOT FOR PUBLICATION WITHOUT THE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-0872-16T4


HSBC BANK USA, NA, AS
TRUSTEE FOR NOMURA ASSET
ACCEPTANCE CORPORATION
MORTGAGE PASS THROUGH
CERTIFICATES SERIES 2006-AR2,

        Plaintiff-Respondent,

v.

LINDA VIERA,

        Defendant-Appellant,

and

MR. VIERA, husband of LINDA
VIERA; DENIS VIERA; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS,
INC., AS NOMINEE FOR WORLDWIDE
FINANCIAL RESOURCES, INC., ITS
SUCCESSORS AND ASSIGNS; PRAMCO IV,
LLC; and NEW CENTURY FINANCIAL SERVICES,

     Defendants.
_____________________________________

              Submitted November 13, 2017 – Decided January 31, 2018

              Before Judges Ostrer and Whipple.
          On appeal from Superior Court of New Jersey,
          Chancery Division, Sussex County, Docket No.
          F-004281-14.

          Molina Law, PC, attorneys for       appellant
          (Orlando Molina, on the briefs).

          Reed Smith, LLP, attorneys for respondent
          (Henry F. Reichner, of counsel and on the
          brief; David G. Murphy, on the brief).

PER CURIAM

     Defendant Linda Viera appeals from the June 10, 2016 order

of the Chancery Division granting summary judgment to plaintiff

HSBC Bank USA, N.A., as Trustee for Nomura Asset Acceptance

Corporation Mortgage Pass Through Certificates Series 2006-AR2,

in a mortgage foreclosure case and entering default against Viera.

     On January 13, 2006, in exchange for a loan of $488,000,

Denis Viera executed a promissory note in favor of World Financial

Resources, Inc. (WFR).    To secure the note, Denis and Linda1

executed a mortgage, recorded on January 26, 2006,        on their

property located in Highland Lakes.   This mortgage named Mortgage

Electronic Registration Systems, Inc., (MERS) as the mortgagee.

On June 1, 2009, the Vieras failed to make their monthly payment,

and the loan went into default.




1
    We refer to the parties by their first names for ease of
reference, and in doing so, mean no disrespect.

                                  2                        A-0872-16T4
     On October 17, 2011, MERS assigned the mortgage to plaintiff,

which recorded it on October 20, 2011.    Further, at the time of

filing the complaint, plaintiff was in physical possession of the

note, which had been endorsed in blank by WFR.

     On August 13, 2013, Denis received a Notice of Intent to

Foreclose (NOI) from America's Servicing Company, the mortgage

servicer.   This notice stated the mortgage was in default, the

amount due, and "if you do not cure this default and bring your

account current by 09/20/2013, then America's Servicing Company

may take steps to terminate your ownership of the Property by

starting a mortgage foreclosure action against you."   It provided

an address to which the payments should be sent, and informed

Denis that plaintiff was the lender of the loan.

     On February 4, 2014, plaintiff filed a foreclosure complaint.2

Denis did not respond, and default was entered against him on

March 27, 2015. Linda, however, filed an answer with counterclaims

and affirmative defenses.

     On May 6, 2016, plaintiff moved for summary judgment, and on

June 10, 2016, the court granted this motion, striking Linda's



2 On June 3, 2015, the trial court dismissed the complaint without
prejudice for failure to comply with a case management order.
After plaintiff moved for reconsideration, the trial court
reinstated the complaint on January 7, 2016, but denied plaintiff's
simultaneous motion for summary judgment.


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answer and counterclaims and ordering that the matter proceed as

uncontested.   The trial judge reasoned that plaintiff had shown

it was the holder of the note and the assignee of the mortgage,

and therefore had standing to foreclose on the mortgage.   Further,

the Vieras defaulted, and thus plaintiff had the right to foreclose

on the mortgage.   He found the defenses and counterclaims asserted

by Linda were without merit, and the NOI was in compliance with

the Fair Foreclosure Act, 
N.J.S.A. 2A:50-53 to -73 (Act).

     On September 28, 2016, the trial court entered final judgment

against the Vieras.     Linda now appeals from the trial court's

order granting summary judgment for plaintiff.

     When reviewing a grant of summary judgment, this court uses

the same standard as that of the trial court.    Globe Motor Co v.

Igdalev, 
225 N.J. 469, 479 (2016) (citations omitted).      A court

should grant summary judgment, "if the pleadings, depositions,

answers to interrogatories and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact challenged and that the moving party is entitled

to a judgment or order as a matter of law."       Ibid. (citing R.

4:46-2(c)).    The evidence must be viewed in "the light most

favorable to the non-moving party."    Mem'l Props., LLC v. Zurich

Am. Ins. Co., 
210 N.J. 512, 524 (2012) (citation omitted).     "Rule

4:46-2(c)'s 'genuine issue [of] material fact' standard mandates

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that the opposing party do more than 'point[] to any fact in

dispute' in order to defeat summary judgment."         Globe Motor Co.,


225 N.J. at 479 (quoting Brill v. Guardian Life Ins. Co. of Am.,


142 N.J. 520, 529 (1995)) (alteration in original).

       To make out a prima facie case for foreclosure, plaintiff

must establish the (1) execution, (2) recording, and (3) non-

payment of the mortgage.        Thorpe v. Floremoore Corp., 
20 N.J.

Super. 34, 37 (App. Div. 1952); Great Falls Bank v. Pardo, 
263 N.J.   Super.   388,   394   (Law   Div.   1993)   (citations   omitted).

Plaintiff has established these elements by substantial credible

evidence, and Linda has asserted nothing sufficient to show a

genuine issue of material fact.

       Linda asserts, however, the NOI was insufficient and not in

compliance with the requirements of 
N.J.S.A. 2A:50-56(c), which

creates a genuine issue of material fact.             Under the Act, a

"residential mortgage debtor" is entitled to at least thirty days'

notice, in writing, before a lender may commence a foreclosure

action.    
N.J.S.A. 2A:50-56(a) & (b).       The NOI must "clearly and

conspicuously state in a manner calculated to make the debtor

aware of the situation."       
N.J.S.A. 2A:50-56(c).     A "residential

mortgage debtor" is defined as "any person shown on the record of

the residential mortgage lender as being obligated to pay the



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obligation secured by the residential mortgage."            
N.J.S.A. 2A:50-

55.

      Here, the obligation secured by the residential mortgage was

the promissory note, which was signed only by Denis, not Linda.

Therefore, while Linda was a mortgagor, she was not a debtor

exposed to any obligation under the note.            See Banc of Am. Leasing

& Capital, LLC v. Fletcher-Thompson Inc., ___ N.J. Super. ___, ___

(App. Div. 2018) (slip op at 5) (recognizing that a wife who did

not guarantee a lease obligation was not a judgment debtor whose

assets could be levied upon default).            Therefore, plaintiff did

not have a statutory obligation to send her a NOI, and she cannot

challenge the sufficiency of the NOI sent to Denis.

      As such, Linda has not shown any genuine issues of material

facts,   and   the   trial   court's   grant    of    summary   judgment   was

appropriate.

      Linda's additional arguments lack sufficient merit to warrant

discussion in a written opinion.           R. 2:11-3(e)(1)(E).

      Affirmed.




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