U.S. BANK TRUST, N.A. v. HENRY RICCIO

NOT FOR PUBLICATION WITHOUT THE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-2511-16T1

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

        Plaintiff-Respondent,

v.

HENRY RICCIO,

        Defendant-Appellant,

and

MRS. HENRY RICCIO, UNKNOWN
SPOUSE OF HENRY RICCIO,

     Defendant-Appellant.
_______________________________

              Submitted January 29, 2018 - Decided March 13, 2018

              Before Judges Messano and Accurso.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Essex County, Docket No.
              F-041153-15.

              Henry Riccio, appellant pro se.

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

PER CURIAM
    Defendant Henry Riccio appeals from the entry of final

judgment of foreclosure, contending the action is barred by a

six-year statute of limitations and the trial court failed to

set forth its reasons for entering summary judgment in favor of

plaintiff U.S. Bank Trust, N.A., as Trustee for LSF9 Master

Participation Trust.     Because a twenty-year statute governs this

action, and defendant does not dispute he borrowed $410,000 from

plaintiff's predecessor secured by a thirty-year mortgage on his

home and made, at most, one payment on the loan, we affirm.

    This was a contested foreclosure.      After the answer was

filed, the court conducted a case management conference and

established a schedule for discovery, a deadline for filing

dispositive motions and set a date for trial.      Plaintiff

answered defendant's interrogatories and request for production

of documents and filed a motion for summary judgment.      Due to a

problem with the service of the motion, the court adjourned the

return date one cycle.     Notwithstanding the adjournment, the

court granted plaintiff's motion shortly after the original

return date as if unopposed.

    Neither party apparently advised the court of its error.

Instead, approximately three weeks later, defendant filed

opposition to plaintiff's summary judgment motion and a cross-

motion to dismiss the complaint.      Responding to plaintiff's

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statement of uncontested material facts, defendant admitted he

executed and delivered a note and mortgage to Bank of America,

N.A. in the principal sum of $410,000 on February 26, 2008; that

"the last payment was made in April 2008, and [p]laintiff

elected to accelerate the Note as of May 1, 2008."    Defendant

argued plaintiff's claims were barred by the six-year statute of

limitations governing negotiable instruments, 
N.J.S.A. 12A:3-

118(a), and that it had failed to establish it was in possession

of defendant's note and mortgage when it filed the complaint on

December 22, 2015.   Plaintiff filed a brief opposing the motion.

    The court, apparently still unaware of the problem on the

summary judgment motion, denied the motion "based on the

[c]ourt's [o]rder dated August 5, 2016, granting summary

judgment in favor of [p]laintiff."    Defendant did not move for

reconsideration nor oppose plaintiff's motion for final

judgment.    He now appeals, reprising the arguments he made to

the trial court and adding that the trial court erred in failing

to set forth its reasons for entering summary judgment for

plaintiff.

    The trial court obviously erred in entering summary

judgment prior to the adjourned return date and without

reviewing defendant's opposition.    Under ordinary circumstances,

we would vacate the judgment and remand for the judge to

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reconsider summary judgment on the full record presented to the

court.   We see no purpose, however, in pursuing such a course

here.    The two orders defendant complains of were entered in

August and September of 2016, almost eighteen months ago.       Final

judgment was entered in January 2017 and plaintiff regained

possession at sheriff's sale last June.       The facts essential to

summary judgment for foreclosure being either undisputed or

undisputable, we assert our prerogative to exercise original

jurisdiction to bring this matter to a close.      See R. 2:10-5;

Price v. Himeji, LLC, 
214 N.J. 263, 294-95 (2013).

    "The only material issues in a foreclosure proceeding are

the validity of the mortgage, the amount of the indebtedness,

and the right of the mortgagee to resort to the mortgaged

premises."   Great Falls Bank v. Pardo, 
263 N.J. Super. 388, 394

(Ch. Div. 1993), aff'd, 
273 N.J. Super. 542 (App. Div. 1994).

As we noted, defendant concedes the validity of the mortgage and

the amount of the indebtedness.       He contests only the right of

the mortgagee to resort to the mortgaged premises in that he

claims plaintiff failed to prove it possessed the note and

mortgage when it filed its complaint.

    We have held, however, that a plaintiff can establish its

right to foreclose by "either possession of the note or an

assignment of the mortgage that predated the original

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complaint."   Deutsche Bank Tr. Co. Ams. v. Angeles, 
428 N.J.

Super. 315, 318 (App. Div. 2012).    Although defendant claims

plaintiff failed to certify it "was in possession of the

original [n]ote on December 22, 2015, the date the [c]omplaint

was filed," it is beyond dispute that plaintiff produced a copy

of the recorded assignment of mortgage from Bank of America to

U.S. Bank Trust, which predated the filing of the complaint by

almost eleven months.   The assignment of mortgage recorded on

January 28, 2015, easily established plaintiff's standing and

right to resort to the mortgaged premises.     See ibid.

    Defendant's contention that the action is barred by the

six-year statute of limitations applicable to negotiable

instruments pursuant to 
N.J.S.A. 12A:3-118(a) misperceives the

nature of this foreclosure action.   Plaintiff has not sued on

the note, it sued to foreclose the mortgage.    See Sec. Nat'l

Partners Ltd. P'ship v. Mahler, 
336 N.J. Super. 101, 105 (App.

Div. 2000) (explaining "a foreclosure proceeding is different

and distinct from a suit on the underlying note").    Defendant's

claim that a foreclosure suit is governed by a "six-year statute

is contrary to long settled case law and has no merit."    Ibid.

    Moreover, in 2009 the Legislature enacted 
N.J.S.A. 2A:50-

56.1, "[s]tatute of limitations relative to residential mortgage

foreclosures."   The statute provides an action to foreclose a

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residential mortgage cannot be brought after the earliest of:

"[s]ix years from the date fixed for the making of the last

payment or the maturity date set forth in the mortgage"; or

"[t]hirty-six years from the date of recording of the mortgage";

or "[t]wenty years from the date on which the debtor defaulted."

N.J.S.A. 2A:50-56.1(a)-(c).   The mortgage was recorded in 2009,

the year after defendant defaulted.    The date fixed for the last

payment is 2038.   Accordingly, plaintiff's foreclosure suit is

obviously timely under the statute plainly applicable to this

residential foreclosure action.

    Defendant admits having defaulted on this $410,000 mortgage

loan in 2008, after making no more than one payment.    He

continued to live in the premises for almost ten years while not

paying the mortgage and without any contribution to the taxes or

insurance.   In its application for final judgment, plaintiff

submitted a certification that its advances for real estate

taxes and hazard insurance alone totaled over $85,000.       Our

review of the record, including defendant's opposition to the

motion, convinces us plaintiff established its entitlement to

summary judgment striking defendant's answer and permitting the

matter to proceed as uncontested.     Defendant's claims that the

matter was time-barred and plaintiff failed to establish its

standing to foreclose are plainly without merit.

                                  6                          A-2511-16T1
Affirmed.




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