U.S.BANK, NATIONAL ASSOCIATION v. SIMON ZAROUR

NOT FOR PUBLICATION WITHOUT THE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-1411-16T3

U.S. BANK, NATIONAL
ASSOCIATION, AS TRUSTEE FOR
CITIGROUP MORTGAGE LOAN
TRUST INC., ASSET-BACKED
PASS-THROUGH CERTIFICATES,
SERIES 2006-AMC-1,

        Plaintiff-Respondent,

v.

SIMON ZAROUR,

     Defendant-Appellant.
_____________________________

              Submitted February 7, 2018 – Decided March 13, 2018

              Before Judges Currier and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Bergen County, Docket No.
              F-016824-14.

              Simon Zarour, appellant pro se.

              Duane Morris LLP, attorneys for respondent
              (Brett L. Messinger and Stuart I. Seiden, of
              counsel and on the brief).

PER CURIAM
     In this residential mortgage foreclosure action, defendant

Simon Zarour appeals from a November 21, 2014 order, striking his

answer   and     affirmative       defenses,    deeming    the    dispute     an

uncontested foreclosure, and returning the matter to the Office

of Foreclosure for entry of final judgment; a November 21, 2014

order, denying his motion to dismiss the complaint filed by

plaintiff     U.S.   Bank,    National     Association,     as    Trustee   for

Citigroup Mortgage Loan Trust Inc., Asset-Backed Pass-Through

Certificates, Series 2006-AMC-1; and an October 19, 2016 final

judgment of foreclosure.          For the following reasons, we affirm.

     We glean the facts from the record.                   On May 16, 2006,

defendant executed and delivered an adjustable rate promissory

note for $378,000 (the note) to Argent Mortgage Company, LLC

(Argent). On the same day, defendant executed a mortgage, securing

payment of the note in favor of Argent (the mortgage) affecting

defendant's     property     in   Lyndhurst    Township,    New   Jersey    (the

property).     The mortgage was recorded in the Bergen County Clerk's

Office on June 1, 2006.           On February 20, 2014, the mortgage was

assigned by Argent to plaintiff by an assignment of mortgage

recorded in the Bergen County Clerk's Office on March 24, 2014

(the assignment).

     Defendant defaulted on the mortgage payment due on August 1,

2008, and all payments thereafter.            On September 30, 2013, notice

                                       2                               A-1411-16T3
of intent to foreclose was sent to defendant by regular and

certified mail.      On April 29, 2014, plaintiff filed its complaint.

Plaintiff specifically pled it was entitled to enforce the note

and mortgage by virtue of the assignment.                    On May 15, 2014,

defendant    filed     an   answer     and   affirmative       defenses.        The

affirmative defenses included lack of standing, improper notice

of breach, unjust enrichment, equitable estoppel, failure to join

an indispensable party, lack of privity, unclean hands, and failure

of consideration.

     On October 17, 2014, plaintiff filed a motion to strike

defendant's answer and affirmative defenses and declare the action

uncontested.       Defendant did not contest the execution of the loan

documents or the subsequent default.              Nor did he contest standing

based on the assignment of the mortgage to plaintiff.                      Rather,

defendant opposed the motion and filed a cross-motion to dismiss

plaintiff's complaint, challenging the securitization of the loan,

and asserting the trust never existed.                   Defendant also argued

plaintiff failed to provide answers to interrogatories but did not

identify     any    specific    interrogatory        answers    or   additional

documents that were vital.             Instead, defendant merely asserted

additional     discovery       would     assist     in     raising   additional

unspecified defenses.



                                         3                                 A-1411-16T3
     The record demonstrates defendant was afforded substantial

discovery by plaintiff, including over 600 pages of documents to

defendant.    In a letter dated September 16, 2014, the trial court

advised defendant he had propounded excessive discovery demands

for irrelevant material. Notably, defendant did not move to compel

further discovery.

     Following oral argument, the trial court ruled defendant was

not a party to the trust, was not a beneficiary of the trust, and

did not have standing to assert the rights of third parties to

challenge a violation of the trust prospectus.                The trial court

further   determined     adequate   discovery    had    been     provided       by

plaintiff,    the    interrogatories      propounded    by    defendant      were

irrelevant,    and     requiring    plaintiff      to        provide     further

documentation would not lead to germane discovery.                     The trial

court granted plaintiff's motion to strike defendant's answer,

returned the matter to the Office of Foreclosure as an uncontested

case, and denied defendant's cross-motion to dismiss plaintiff's

complaint.

     On August 30, 2016, plaintiff applied for entry of final

judgment.     The    application    was    initially    denied     because       a

certification of inquiry for publication on defendant was not

submitted. On October 19, 2016, the trial court vacated the denial

of plaintiff's motion for entry of final judgment and entered

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final judgment against defendant in the amount of $725,662.43

together with lawful interest from July 8, 2016.                This appeal

followed.

     On appeal, defendant argues the trial court erred by: (1)

concluding plaintiff had standing to foreclose the mortgage; (2)

by striking defendant's answer and affirmative defenses; and (3)

returning the matter to the Office of Foreclosure as an uncontested

case for entry of final judgment.           Based on our review of the

record and applicable law, we are unpersuaded by these arguments.

     Plaintiff moved to strike defendant's answer and affirmative

defenses pursuant to Rule 4:64-1(c)(2), which provides an action

to foreclose a mortgage shall be deemed uncontested if the answer

does not "either contest the validity or priority of the mortgage

or lien being foreclosed or create an issue with respect to

plaintiff's   right   to   foreclose     it[.]"     "An    allegation   by    a

defendant that he is without knowledge or sufficient information

to form a belief as to an allegation of the complaint is also

expressly deemed to be non-contesting."             Pressler & Verniero,

Current   N.J.   Court   Rules,   cmt.   3.1   on   R.    4:64-1(c)   (2018).

Consequently, "a plaintiff may move to strike such an answer

. . . on the ground that it presents 'no question of fact or law

which should be heard by a plenary trial.'"         Old Republic Ins. Co.

v. Currie, 
284 N.J. Super. 571, 574-75 (Ch. Div. 1995) (quoting

                                    5                                 A-1411-16T3
30 N.J. Practice, Law of Mortgages § 312, at 233 (Roger A.

Cunningham & Saul Tischler) (1975)).          At the conclusion of a

successful motion for summary judgment or to strike a defendant's

answer, the matter is referred to the Office of Foreclosure to

proceed as uncontested.    See R. 4:64-1(d) (dictating the procedure

for entry of judgment).    Similar to a motion for summary judgment,

we review a grant of a motion to strike an answer and affirmative

defenses de novo, applying the same standard as the trial court.

     On   appeal,   defendant   argues   plaintiff   lacks   standing    to

foreclose because the corrective assignment of the mortgage to

plaintiff post-dated the filing of the complaint.            This defense

was not raised before the trial court in opposition to plaintiff's

motion.

                It is a well-settled principle that our
           appellate courts will decline to consider
           questions or issues not properly presented to
           the trial court when an opportunity for such
           a presentation is available "unless the
           questions so raised on appeal go to the
           jurisdiction of the trial court or concern
           matters of great public interest."

           [Nieder v. Royal Indem. Ins. Co., 
62 N.J. 229,
           234 (1973) (quoting Reynolds Offset Co., Inc.
           v. Summer, 
58 N.J. Super. 542, 548 (App. Div.
           1959)).]

The standing challenge based on the assignment of the mortgage now

raised by defendant on appeal does not affect the trial court's

jurisdiction.   Deutsche Bank Nat'l Trust Co. v. Russo, 429 N.J.

                                   6                              A-1411-16T
3 Super. 91, 101 (App. Div. 2012) (stating "standing is not a

jurisdictional issue in our State court system").      Nor is it a

matter of great public concern.   We, therefore, decline to address

this defense not raised below.

     In his opposition to plaintiff's motion, defendant argued

plaintiff lacked standing to foreclose due to purported defects

in the securitization process by which plaintiff came to hold the

mortgage.   Defendant did not identify or brief this issue in this

appeal.

     Our rules require an appellant to identify and fully brief

any issue raised on appeal.     R. 2:6-2(a).   Parties to an appeal

are required to make a proper legal argument, supporting their

legal argument with appropriate record references and providing

the law. State v. Hild, 
148 N.J. Super. 294, 296 (App. Div. 1977);

see also Sackman v. N.J. Mfrs. Ins. Co., 
445 N.J. Super. 278, 297-

98 (App. Div. 2016).   A party's failure to properly brief an issue

will be deemed a waiver.    See, e.g., Gormley v. Wood-El, 
218 N.J.
 72, 95 n.8 (2014).     An appellant may escape that waiver only in

the interests of justice.     Otto v. Prudential Prop. & Cas. Ins.

Co., 
278 N.J. Super. 176, 181 (App. Div. 1994).   For the following

reasons, the interests of justice do not require us to consider

this issue as we find it to have no merit.



                                  7                         A-1411-16T3
     The trial court ruled plaintiff lacked standing to challenge

the securitization process based on an alleged violation of the

trust because defendant was not a party to the trust and was not

a beneficiary of the trust.       "[L]itigants generally have no

standing to assert the rights of third parties."   Bank of N.Y. v.

Raftogianis, 
418 N.J. Super. 323, 350 (Ch. Div. 2010); see also

Jersey Shore Med. Ctr.-Fitkin Hosp. v. Estate of Baum, 
84 N.J.
 137, 144 (1980).   The trial court properly held defendant lacked

standing to raise issues regarding the securitization process

because he was neither a party to the trust, nor a third-party

beneficiary of the trust's terms.    See Correia v. Deutsche Bank

Nat'l Trust Co. (In re Correia), 
452 B.R. 319, 324 (1st Cir. B.A.P.

2011).

     Because defendant did not identify or address this issue in

his brief, we consider the claim waived and abandoned. See Drinker

Biddle & Reath LLP v. N.J. Dep't of Law & Pub. Safety, 
421 N.J.

Super. 489, 496 n.5 (App. Div. 2011).

     Defendant further argues plaintiff's motion should have been

denied because he was entitled to additional discovery to assist

in raising additional unspecified defenses.   We disagree.

     We review a trial court's discovery order under an abuse of

discretion standard.   State in the Interest of A.B., 
219 N.J. 542,

554 (2014) (citing In re Subpoena Duces Tecum on Custodian of

                                 8                           A-1411-16T3
Records, 
214 N.J. 147, 162 (2013)).                We "defer to a trial court's

resolution of a discovery matter, provided its determination is

not so wide of the mark or is not 'based on a mistaken understanding

of the applicable law.'"            Ibid. (quoting Pomerantz Paper Corp. v.

New Cmty. Corp., 
207 N.J. 344, 371 (2011)); see generally Flagg

v. Essex Cty. Prosecutor, 
171 N.J. 561, 571 (2002) (holding that

an abuse of discretion "arises when a decision is made without a

rational    explanation,        inexplicably        departed      from    established

policies,     or     rested    on    an    impermissible         basis"    (citations

omitted)).

     We discern no abuse of discretion in rejecting defendant's

argument that failure to provide additional discovery precluded

granting    plaintiff's        motion     to    strike    defendant's      answer    and

affirmative        defenses.        Defendant      has     not    established       that

additional     discovery       would      have    revealed       facts    material    to

plaintiff's ownership and possession of the note, the assignment

of the mortgage, or plaintiff's right to foreclose.                         Moreover,

additional discovery regarding the securitization process would

not have been relevant since plaintiff lacked standing to assert

that issue.

     In sum, the trial court properly denied defendant's motion

to   dismiss       the   complaint,        struck        defendant's      answer     and



                                            9                                  A-1411-16T3
affirmative defenses, and referred the matter to the Office of

Foreclosure as an uncontested matter for entry of judgment.

    Affirmed.




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