U.S. BANK NATIONAL ASSOCIATION v. HARRIET WALKER

NOT FOR PUBLICATION WITHOUT THE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-3489-16T2


U.S. BANK NATIONAL
ASSOCIATION, AS TRUSTEE
FOR CITIGROUP MORTGAGE
LOAN TRUST 2006-WFHE3,
ASSET-BACKED PASS-THROUGH
CERTIFICATES, SERIES 2006-WFHE3,

        Plaintiff-Respondent,

v.

HARRIET WALKER, a/k/a HARRIET
E. WALKER, f/k/a HARRIET MACK,

        Defendant-Respondent,

and

MIDLAND FUNDING, LLC, and STATE
OF NEW JERSEY,

     Defendants.
_________________________________

              Submitted April 9, 2018 – Decided May 14, 2018

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Essex County, Docket No.
              F-012130-16.

              Harriet Walker, appellant pro se.
         Reed Smith, LLP, attorneys for respondent
         (Henry F. Reichner, of counsel and on the
         brief).

PER CURIAM

    In this contested mortgage foreclosure action, defendant

Harriet Walker appeals from the entry of summary judgment

striking her answer and the subsequent final judgment.   She

contends the trial court erred in finding plaintiff U.S. Bank

National Association, as trustee for Citigroup Mortgage Loan

Trust 2006-WFHE3, Asset-Backed Pass-Through Certificates, Series

2006-WFHE3 had standing to foreclose and that the complaint was

not barred by the six-year statute of limitations in 
N.J.S.A.

12A:3-118(a).   Our review of the record convinces us that

neither of those arguments is of sufficient merit to warrant

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

    Defendant admits she executed and delivered on July 14,

2006, a $418,500 Note to plaintiff's predecessor, American

Financial Resources, Inc., secured by a non-purchase money

mortgage on her home in South Orange to Mortgage Electronic

Registration Systems, Inc., as nominee for the lender.   She

further admits she defaulted on the loan in September 2009, has

not made any payments since that time, and that plaintiff served

her with a notice of intent to foreclose thirty days before

filing its complaint.

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    Although defendant disputed plaintiff's assertion that it

possessed the original Note prior to filing its complaint, Judge

Koprowski found the certification submitted by an employee of

plaintiff's servicer attesting to that fact fully complied with

the personal knowledge requirement of R. 1:6-6 and Wells Fargo

Bank, N.A. v. Ford, 
418 N.J. Super. 592, 599-600 (App. Div.

2011), and defendant offered no proof of her own to put the fact

in issue.   Because plaintiff established its possession of the

Note, endorsed in blank, prior to its filing of the foreclosure

complaint, the judge concluded plaintiff established its

standing to enforce the Note and foreclose the mortgage.       See

Bank of N.Y. v. Raftogianis, 
418 N.J. Super. 323, 356 (Ch. Div.

2010).   Having reviewed the certification, we agree and reject

defendant's conclusory argument that the evidence was

insufficient to establish plaintiff's physical possession of the

original Note as of the date of the complaint.

    We also reject defendant's argument that 
N.J.S.A. 12A:3-

118(a) controls here.   
N.J.S.A. 12A:3-118(a) provides for a six-

year statute of limitations in "an action to enforce the

obligation of a party to pay a note."       Plaintiff, however, has

not sued defendant on the Note.       Plaintiff's suit is one to

foreclose the mortgage, and is thus controlled by 
N.J.S.A.

2A:50-56.1, which provides:

                                  3                           A-3489-16T2
         An action to foreclose a residential
         mortgage shall not be commenced following
         the earliest of:

         a. Six years from the date fixed for the
         making of the last payment or the maturity
         date set forth in the mortgage or the note,
         bond, or other obligation secured by the
         mortgage, whether the date is itself set
         forth or may be calculated from information
         contained in the mortgage or note, bond, or
         other obligation, except that if the date
         fixed for the making of the last payment or
         the maturity date has been extended by a
         written instrument, the action to foreclose
         shall not be commenced after six years from
         the extended date under the terms of the
         written instrument;

         b. Thirty-six years from the date of
         recording of the mortgage, or, if the
         mortgage is not recorded, 36 years from the
         date of execution, so long as the mortgage
         itself does not provide for a period of
         repayment in excess of 30 years; or

         c. Twenty years from the date on which the
         debtor defaulted, which default has not been
         cured, as to any of the obligations or
         covenants contained in the mortgage or in
         the note, bond, or other obligation secured
         by the mortgage, except that if the date to
         perform any of the obligations or covenants
         has been extended by a written instrument or
         payment on account has been made, the action
         to foreclose shall not be commenced after 20
         years from the date on which the default or
         payment on account thereof occurred under
         the terms of the written instrument.

         [N.J.S.A. 2A:50-56.1(a-c) (emphasis added).]

As the maturity date expressly "set forth" in defendant's Note

is August 1, 2036, plaintiff's foreclosure is obviously timely.

                               4                         A-3489-16T2
    We further reject, as inconsistent with the statute,

defendant's alternative argument that plaintiff having declared

the whole of the unpaid principal, interest and any advances due

on defendant's default in 2009, that its complaint had to have

been filed within six years of that new maturity date instead of

by the original August 1, 2036 maturity date set forth in the

Note.   The plain language of 
N.J.S.A. 2A:50-56.1(a) permits

calculation of a maturity date only "from information contained

in the mortgage or note."    As defendant's default and the

lender's acceleration of all amounts due are not "information

contained in the mortgage or note," the August 1, 2036 maturity

date "set forth in the mortgage" clearly controls.    Ibid.

    Our review of the record, including defendant's opposition

to the summary judgment 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.

    Affirmed.




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