U.S.BANK TRUST, N.A. v. ALESSANDRA LANZETTA

NOT FOR PUBLICATION WITHOUT THE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-1647-16T1

U.S. BANK TRUST, N.A., as
Trustee for LSF9 Master
Participation Trust,

              Plaintiff-Respondent,

v.

ALESSANDRA LANZETTA; MR.
LANZETTA, unknown spouse of
Alessandra Lanzetta; AUGUSTINE
R. LANZETTA; MRS. LANZETTA,
unknown spouse of Augustine
R. Lanzetta,

              Defendants-Appellants,

and

BANK OF AMERICA, N.A., successor
by merger to Fleet National Bank;
and MIDLAND FUNDING, LLC,

          Defendants.
________________________________________

              Submitted November 9, 2017 – Decided January 25, 2018

              Before Judges Nugent and Geiger.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Middlesex County, Docket
              No. F-041088-15.
            Lombardi & Lombardi, PA, attorneys               for
            appellants (Michael F. Lombardi, on              the
            brief).

            Stern   &   Eisenberg,  PC,   attorneys   for
            respondent (Salvatore Carollo, on the brief).

PER CURIAM

      Defendants Alessandra Lanzetta and Augustine R. Lanzetta

(collectively, defendants1) appeal a July 11, 2016 order granting

summary judgment to plaintiff U.S. Bank, N.A., as Trustee for LSF9

Master Participation Trust, striking the contesting answer filed

by defendants, and entering default judgment against defendants;

and a November 18, 2016 final judgment in favor of plaintiff.                  We

affirm.

      The following facts are taken from the record.              On July 8,

2003, Augustine executed a note made payable to Fleet National

Bank (Fleet) in the principal amount of $150,000.                On the same

date, defendants executed a mortgage to Fleet National Bank to

secure the note.       The mortgage affected defendants' home in South

Plainfield, which they jointly owned as tenants by the entirety.

The   mortgage   was    recorded   on   September   9,   2003.     In     2011,

defendants defaulted on the note and failed to cure the default.

      Defendant Bank of America, N.A., is the successor by merger

to Fleet.    On February 23, 2015, Bank of America assigned the note


1
    Other defendants will be referred to by name in this opinion.

                                        2                               A-1647-16T1
and mortgage to plaintiff.       The assignment was recorded on March

23, 2015.

      On October 9, 2015, plaintiff sent a Notice of Intent to

Foreclose to defendants in accordance with the requirements of the

Fair Foreclosure Act, 
N.J.S.A. 2A:50-53 to -73.              On December 21,

2015, plaintiff commenced a foreclosure action in the Chancery

Division.    On February 9, 2016, defendants filed a contesting

answer, but not a counterclaim.              In their answer, defendants

asserted plaintiff lacked standing to foreclose because it was not

in possession of the note and mortgage when the foreclosure action

was   commenced.         They   further      asserted      that    plaintiff's

predecessor,    Fleet,    committed        predatory     lending     for     which

plaintiff was liable.

      Defendants'    predatory         lending         allegations         involve

transactions that occurred in 2003, more than eleven years before

the   assignment    of    the   note       and   mortgage     to     plaintiff.

Specifically, defendants allege that when they first applied for

the 2003 loan, Fleet advised them that their credit was too poor

to justify approving the loan application.             They further allege a

Fleet representative told them that Alessandra should not be an

applicant on the loan because her credit was even worse than her

husband's.     Fleet approved the loan with Augustine as the sole



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borrower on the note, but with both defendants executing the

mortgage as mortgagors.

     In 2004, defendants applied for a Home Equity Loan in the

amount of $90,000, secured by a second mortgage on their home.

Despite their poor credit, Fleet approved the application.                     The

new loan closed on December 9, 2004.

     Defendants    contend       that    these     transactions       constituted

predatory    lending     because    "an        already     bad   situation     was

compounded" by the additional loan, which they "could not possibly

repay."

     The    parties    engaged      in       pretrial     discovery    including

interrogatories,      requests     for       production    of    documents,    and

requests for admissions.         On February 23, 2016, the trial court

entered a case management order setting a May 31, 2016 discovery

end date and an August 15, 2016 trial date.                Neither party moved

to extend discovery.

     Both parties raise discovery issues.                  Defendants did not

answer the interrogatories propounded by plaintiff.                   Defendants

contend    plaintiff's    discovery      responses        were   partially    non-

responsive because plaintiff failed to provide: the underwriting

documents related to the 2003 loan; the underwriting documents

related to the subsequent 2004 loan; the LSF9 Master Participation

Trust agreement; and the identities of the bank officers involved

                                         4                                A-1647-16T1
in underwriting the 2003 loan.             Defendants' attorney wrote to

plaintiff's counsel demanding more specific discovery responses.

Plaintiff's counsel responded to the letter, setting forth reasons

why defendants were not entitled to the additional documents and

information they sought.        Defendants did not move to compel more

responsive answers to discovery. Neither party moved for discovery

sanctions.

     On    June   1,   2016,   plaintiff    moved   for    summary    judgment.

Defendants opposed the motion.       Following oral argument, the trial

court issued a July 11, 2016 order and statement of reasons

granting summary judgment to plaintiff, striking the contesting

answer filed by defendants, entering default against defendants,

and transferring the case to the Office of Foreclosure to proceed

as an uncontested matter.

     The trial court determined plaintiff had standing by virtue

of receipt and recordation of the mortgage assignment prior to the

commencement of the foreclosure action. In response to defendants'

claim that plaintiff was liable for the alleged fraud and predatory

lending committed by Fleet in 2003, the court held that plaintiff,

as a holder in due course, is immune from liability for any

wrongful conduct of the original lender.                  Finally, the court

rejected    defendants'    claim   that    discovery      was   not   complete,



                                      5                                 A-1647-16T1
finding defendants had not demonstrated further discovery would

supply necessary information.         The court explained:

            Plaintiff, as a subsequent mortgage assignee
            is a holder in due course and does not possess
            any of the discovery items that Defendants are
            requesting. In addition, Fleet Bank no longer
            exists as they were succeeded by Bank of
            America in a well known merger that took place
            in 2004. Defendants may be able to pursue a
            separate Law Division action against Bank of
            America for their fraud claims stemming from
            the loan origination, but they are certainly
            not entitled to any additional discovery from
            Plaintiff in these foreclosure proceedings.

       On appeal, defendants raise the following arguments:                (1)

plaintiff lacked standing to prosecute the foreclosure action; (2)

genuine    issues     of   material   fact   existed    regarding     whether

defendants' predecessor, Fleet, violated state and federal lending

regulations in loaning money to defendants; and (3) the trial

court    erred   in   granting   summary     judgment    without    providing

defendants the opportunity to obtain discovery on their predatory

lending defenses.

       "[W]e review the trial court's grant of summary judgment de

novo under the same standard as the trial court."            Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 
224 N.J.
 189, 199 (2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co.,


210 N.J. 512, 524 (2012)).        Summary judgment is appropriate when

"the    pleadings,    depositions,    answers    to    interrogatories     and


                                      6                               A-1647-16T1
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." R. 4:46-2(c).   When making this determination, the

court must examine "whether the competent evidential materials

presented, when viewed in the light most favorable to the non-

moving party, are sufficient to permit a rational factfinder to

resolve the alleged disputed issue in favor of the non-moving

party."     Manahawkin Convalescent v. O'Neill, 
217 N.J. 99, 115

(2014) (quoting Brill v. Guardian Life Ins. Co. of Am., 
142 N.J.
 520, 540 (1995)).     Accordingly, we must first "decide whether

there was a genuine issue of material fact, and if none exists,

decide whether the trial court's ruling on the law was correct."

Henry v. N.J. Dep't. of Human Servs., 
204 N.J. 320, 330 (2010)

(citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 
307 N.J. Super.
 162, 167 (App. Div.), certif. denied, 
154 N.J. 608 (1998)). .      We

afford no special deference to legal determinations of the trial

court.    Templo Fuente, 
224 N.J. at 199 (citing Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 
140 N.J. 366, 378 (1995)).

     The right to foreclose arises upon proof of execution and

recording of a mortgage and note, and default on payment of the

note.     Thorpe v. Floremoore Corp., 
20 N.J. Super. 34, 37 (App.

Div. 1952).   Defendants do not dispute that Augustine executed the

                                 7                          A-1647-16T1
note and received the loan proceeds, the execution and recording

of the mortgage, or their failure to remit payment since 2011.

      We first address defendants' defense that plaintiff lacked

standing to foreclose.         Standing to foreclose is established

through either possession of the note or an assignment of the

mortgage that predated the original complaint.          Deutsche Bank Tr.

Co. Ams. v. Angeles, 
428 N.J. Super. 315, 318 (App. Div. 2012)

(citing Deutsche Bank Nat'l Tr. Co. v. Mitchell, 
422 N.J. Super.
 214, 216 (App. Div. 2011)).          Here, the note and mortgage were

assigned to plaintiff on February 23, 2015.            The assignment was

recorded on March 23, 2015, almost nine months before plaintiff

initiated this foreclosure action.         Consequently, plaintiff has

standing.

      We next address defendants' argument that summary judgment

was inappropriate because there are issues of material fact in

dispute; namely, whether defendants' predecessor, Fleet, violated

unidentified state and federal lending regulations in loaning

money to defendants.        In their appellate brief, defendants cite

the Truth in Lending Act, 15 U.S.C.A. §§ 1601 to -1667; the Real

Estate Procedures Act, 12 U.S.C.A. §§ 2601 to -2617; and the New

Jersey Home Ownership Security Act, 
N.J.S.A. 46:10B-22 to -35.

Defendants fail to provide any factual basis or analysis in support

of   their   claim   that   Fleet   violated   the   unidentified   lending

                                      8                             A-1647-16T1
regulations or the cited statutes.    It is their responsibility to

provide an adequate record for our review, see Rules 2:5-3, 5-4,

6-1, and the failure to match their argument with the record not

only undermines their argument, but also hampers our review.

     Moreover, defendants do not provide any specific authority

for the legal contentions upon which they rely.     This omission,

compounded by the failure to provide factual support for the

arguments they raise, is tantamount to failing to brief the issue

asserted.   The consequence of failing to brief an issue is waiver

of that issue on appeal.   Fantis Foods v. N. River Ins. Co., 
332 N.J. Super. 250, 266-67 (App. Div.), certif. denied, 
165 N.J. 677

(2000); Pressler & Verniero, Current N.J. Court Rules, comment 5

on R. 2:6-2 (2018).   Because the applicability and impact of the

regulations and statutes were not properly briefed, they are

waived.

     We will, however, address defendants' argument that there are

material facts in dispute regarding their defenses of alleged

fraud and predatory lending committed by Fleet.    This requires us

to determine whether defendants can assert those personal defenses

against a holder in due course.   We start by recognizing 
N.J.S.A.

46:9-9 permits mortgagors to raise personal defenses against an

assignee where the mortgage is given to secure a non-negotiable

instrument, such as a bond.    However, 
N.J.S.A. 46:9-9 does not

                                  9                         A-1647-16T1
apply to mortgages given to secure a debt embodied in a negotiable

instrument.    Carnegie Bank v. Shalleck, 
256 N.J. Super. 23, 44,

(App. Div. 1992) (stating that "
N.J.S.A. 46:9-9 was always intended

to be limited to non-negotiable instruments, such as a mortgage

bond, rather than negotiable instruments, such as a promissory

note.").

     To be sure, the 2003 note is a negotiable instrument as it

meets   each   requirement    imposed   by   
N.J.S.A.   12A:3-104(a).

Therefore, 
N.J.S.A. 46:9-9 does not apply to the 2003 note.

     We next consider if plaintiff is a holder in due course of

the 2003 note and mortgage.    "Holder in due course" is defined by

the Uniform Commercial Code as meaning:

           the holder of an instrument if:

           (1) the instrument when issued or negotiated
           to the holder does not bear such apparent
           evidence of forgery or alteration or is not
           otherwise so irregular or incomplete as to
           call into question its authenticity; and

           (2) the holder took the instrument for value,
           in good faith, without notice that the
           instrument is overdue or has been dishonored
           or that there is an uncured default with
           respect to payment of another instrument
           issued as part of the same series, without
           notice that the instrument contains an
           unauthorized signature or has been altered,
           without notice of any claim to the instrument
           described in 12A:3-306, and without notice
           that any party has a defense or claim in
           recoupment described in subsection a. of
           12A:3-305.

                                 10                           A-1647-16T1
           [N.J.S.A. 12A:3-302.]

     The record demonstrates plaintiff is a holder in due course

of the note.      Defendants have presented no evidence that plaintiff

had knowledge of any fraud in the inducement or predatory lending

committed by Fleet during the loan origination process.                    As a

holder in due course, plaintiff holds the note and mortgage free

and clear of any personal defenses the mortgagors may have against

the assignor.      Shalleck, 
256 N.J. Super. at 44-45.

     Finally,      we   address   defendants'   contention    that    summary

judgment    was    improper   because      discovery   was   not     complete.

Defendants did not move to compel or extend discovery.             The motion

for summary judgment was filed after the discovery end date.                  In

general,    "summary     judgment     is   inappropriate     prior    to    the

completion of discovery."         Wellington v. Estate of Wellington, 
359 N.J. Super. 484, 496 (App. Div.), certif. denied, 
177 N.J. 493

(2003).    Nonetheless,

           [a] party challenging a motion for summary
           judgment on grounds that discovery is as yet
           incomplete must show that there is a
           likelihood that further discovery would supply
           . . . necessary information to establish a
           missing element in the case. The party must
           show, with some specificity, the nature of the
           discovery sought and its materiality to the
           issues at hand.

           [Mohamed v. Iglesia Evangelica Oasis De
           Salvacion, 
424 N.J. Super. 489, 498 (App. Div.

                                      11                               A-1647-16T1
            2012) (alteration          in    original)    (citations
            omitted).]

See also Auster v. Kinoian, 
153 N.J. Super. 52, 56 (App. Div.

1977) (explaining that a party raising an incomplete discovery

defense has "an obligation to demonstrate with some degree of

particularity the likelihood that further discovery will supply

the missing elements of the cause of action.").

       Here, discovery of Fleet's conduct during the origination of

the 2003 and 2004 loans is not material given plaintiff's immunity

from   liability    for   such   conduct      as   a   holder     in    due   course.

Accordingly, the discovery defendants sought would not supply

necessary information that is material to the issues presented.

       In addition, "discovery must proceed in a timely fashion."

J. Josephson, Inc. v. Crum & Forster Ins. Co., 
293 N.J. Super.
 170, 204 (App. Div. 1996).             Despite having adequate opportunity

to do so, defendants did not undertake timely discovery regarding

whether plaintiff took the assignment for value, in good faith,

and    without   notice   of     any    personal       defenses    or    claims      in

recoupment.      "[A] claim of incomplete discovery will not defeat a

summary judgment motion when the party opposing the motion has not

sought discovery within the time prescribed by [Rule] 4:24-1[.]"

Pressler & Verniero, supra, comment 2.3.3 on R. 4:46-2 (citing

Liberty Surplus Ins. Co. v. Nowell Amoroso, P.A., 
189 N.J. 436,


                                        12                                    A-1647-16T1
450-51 (2007); Schettino v. Roizman Development, Inc., 
310 N.J.

Super. 159, 165 (App. Div. 1998), aff'd, 
158 N.J. 476 (1999)).

Defendants presented no evidence demonstrating that plaintiff is

not a holder in due course.

    Defendants' remaining arguments are without sufficient merit

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

    Affirmed.




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