WELLS FARGO BANK, NA v. ODDIE WIGGINS

NOT FOR PUBLICATION WITHOUT THE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-3702-16T2

WELLS FARGO BANK, NA,

        Plaintiff-Respondent,

v.

ODDIE WIGGINS, her heirs, devisees,
and personal representatives, and
her, their or any of their successors
in right, title and interest, and
MR. WIGGINS, husband of ODDIE WIGGINS,

        Defendants,

and

LINDA WIGGINS, individually and
as adminstratrix of the Estate of
ODDIE WIGGINS, deceased,

     Defendant-Appellant.
________________________________________

              Submitted February 26, 2018 – Decided March 19, 2018

              Before Judges O'Connor and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Essex County, Docket No.
              F-017818-15.

              Linda Wiggins, appellant pro se.
           Reed Smith, LLP, attorneys for respondent
           (Henry F. Reichner, of counsel; Siobhan A.
           Nolan, on the brief).

PER CURIAM

      In   this    mortgage   foreclosure        action,     defendant     Linda

Wiggins,1 individually and as administratrix of the estate of Oddie

Wiggins (Wiggins), appeals from a June 3, 2016 order granting

plaintiff Wells Fargo Bank, N.A.'s motion for summary judgment and

denying defendant's motion to dismiss the complaint, and an April

4, 2017 final judgment of foreclosure.           We affirm.

      We discern the following facts from the record and view the

facts and all reasonable inferences therefrom in the light most

favorable to defendant, because she is the party against whom

summary judgment was entered.         Brill v. Guardian Life Ins. Co. of

Am., 
142 N.J. 520, 540 (1995).

      On September 16, 2008, Wiggins signed a $106,312 promissory

note in favor of Advisors Mortgage Group, LLC (AMG).               As security

for the note's obligations, Wiggins executed a mortgage to Mortgage

Electronic Registration Systems, Inc. (MERS), as AMG's nominee.

The   mortgage    granted   AMG   a   security    interest    in   residential

property located in Newark, and was recorded on September 26,

2008, in the Essex County Clerk's Office.


1
   The record also includes references to Linda Wiggins as "Linda
Wiggins-Andrews."

                                       2                                 A-3702-16T2
     Wiggins died in January 2014, and the loan went into default

on December 1, 2014.      By Assignment of Mortgage dated January 8,

2015, and recorded on January 13, 2015, MERS assigned its rights

under the mortgage to plaintiff.       Plaintiff filed a complaint for

foreclosure four months later.          Defendant filed a contesting

answer.

     In May 2016, plaintiff filed a motion for summary judgment.

In support of its motion, plaintiff relied on the certification

of Billie Lucrita Simpson, plaintiff's Vice President of Loan

Documentation. Simpson certified that based on her personal review

of plaintiff's business records related to the mortgage and note,

plaintiff was in possession of the note prior to and since the

filing of the complaint.       She also certified that plaintiff's

business records showed the mortgage was assigned to plaintiff and

recorded on January 13, 2015, four months before it filed the

foreclosure complaint.

     Defendant did not file opposition to plaintiff's summary

judgment motion. On May 2, 2016, however, defendant filed a motion

to strike the complaint based on plaintiff's purported lack of

standing and alleged failure to provide discovery.         On June 3,

2016, Judge Donald A. Kessler entered an order granting plaintiff's

motion    for   summary    judgment,    deeming   defendant's    answer

noncontesting, and denying defendant's dismissal motion.

                                   3                            A-3702-16T2
     In a written statement of reasons, Judge Kessler rejected

defendant's claim that plaintiff lacked standing to bring the

foreclosure action.    Judge Kessler found the undisputed facts

established plaintiff's standing for two separate but equally

dispositive reasons: the mortgage was assigned to plaintiff prior

to the filing of the complaint; and plaintiff was in possession

of the note when the complaint was filed.         Judge Kessler also

determined defendant defaulted on the note on December 1, 2014,

and made no payments thereafter.       The judge rejected defendant's

claim plaintiff failed to respond to her discovery demands.       Judge

Kessler later denied defendant's motion for reconsideration.2

     On April 4, 2017, Judge Paul Innes entered a final judgment

of foreclosure.   This appeal followed.

     Defendant    presents   the   following    arguments   for    our

consideration:

          [POINT I]

          IN THE INTEREST OF JUSTICE THE APPELLATE
          DIVISION MUST DECIDE WHETHER A GENUINE ISSUE
          OF MATERIAL [FACT] WAS IN DISPUTE THAT SHOULD
          HAVE PRECLUDED SUMMARY JUDGMENT WHERE REVIEW
          WHERE WELLS FARGO BANK, N.A. IS SEEKING TO
          FORECLOSE   A    MORTGAGE   THAT   SECURES   A
          [NEGOTIABLE] NOTE WITHOUT BRINGING FORTH ANY
          DIRECT EVIDENCE TO SHOW JUST HOW THAT RIGHT
          WAS OBTAINED AS REQUIRED BY ESTABLISH[ED] CASE
          LAW.

2
  Defendant does not appeal from the January 6, 2017 order denying
her motion for reconsideration of the June 3, 2016 order.

                                   4                          A-3702-16T2
          [POINT II]

          THE APPELLATE DIVISION MUST [DECIDE WHETHER]
          THE TRIAL COURT ERRED WHEN THERE WAS A GENUINE
          ISSUE OF MATERIAL FACT WAS IN DISPUTE THAT
          SHOULD HAVE PRECLUDED SUMMARY JUDGMENT.

     In our review of a grant of summary judgment, we apply the

same legal standard as the motion judge.      Townsend v. Pierre, 
221 N.J. 36, 59 (2015).      We must determine whether there is a "genuine

issue as to any material fact" when the evidence is "viewed in the

light most favorable to the non-moving party."        Davis v. Brickman

Landscaping, Ltd., 
219 N.J. 395, 405-06 (2014) (first quoting R.

4:46-2(c); and then quoting Brill, 
142 N.J. at 540).         The "trial

court's interpretation of the law and the legal consequences that

flow from established facts are not entitled to any special

deference" and are reviewed de novo.       Estate of Hanges v. Metro.

Prop. & Cas. Ins. Co., 
202 N.J. 369, 382-83 (2010).

     In   a   mortgage    foreclosure   proceeding,   the   court   must

determine three issues: "the validity of the mortgage, the amount

of the indebtedness" and default, and the right of the plaintiff

to foreclose on the mortgaged property. Great Falls Bank v. Pardo,


263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 
273 N.J. Super.
 542 (App. Div. 1994).      On appeal, defendant concedes the mortgage

is valid, and she is in default under the note.        She argues only

that the motion court erred because Simpson's affidavit was not


                                    5                           A-3702-16T2
based on personal knowledge and therefore could not support the

court's determination that plaintiff had standing to bring the

foreclosure action.

     A party initiating a foreclosure proceeding "must own or

control the underlying debt" obligation at the time an action is

initiated to demonstrate standing to foreclose on a mortgage.

Deutsche Bank Nat'l Trust Co. v. Mitchell, 
422 N.J. Super. 214,

222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 
418 N.J. Super. 592, 597 (App. Div. 2011)).        Absent a showing of

ownership or control, a "plaintiff lacks standing to proceed with

the foreclosure action and the complaint must be dismissed." Ibid.

(quoting Ford, 
418 N.J. Super. at 597).     "[E]ither possession of

the note or an assignment of the mortgage that predated the

original complaint confer[s] standing."     Deutsche Bank Trust Co.

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

Mitchell, 
422 N.J. Super. at 216, 225).

     Simpson's   certification   provided   ample   support   for   the

court's determination that plaintiff had standing to bring the

foreclosure action.   It showed plaintiff possessed the note and

the mortgage was assigned to plaintiff prior to the filing of the

complaint.    See ibid.   Defendant did not oppose the summary

judgment motion and thus offered no competent evidence to the

contrary.    See Alpert, Goldberg, Butler, Norton & Weiss, PC v.

                                 6                             A-3702-16T2
Quinn, 
410 N.J. Super. 510, 538 (App. Div. 2009) (noting that Rule

4:46-5(a) requires that a party opposing a summary judgment motion

respond by affidavits "setting forth specific facts showing that

there is a genuine issue for trial"); see also Housel for Housel

v. Theodoridis, 
314 N.J. Super. 597, 604 n.3 (App. Div. 1998)

(first   alteration   in    original)   (citation    omitted)     ("[I]f   the

opposing party offers no affidavits or matter in opposition . . .

he will not be heard to complain if the court grants summary

judgement, taking as true the statement of uncontradicted facts

in the papers.")

     We are not persuaded by defendant's contention that Simpson's

certification was not based upon personal knowledge as required

by Rule 1:6-6.        The certification expressly states Simpson's

knowledge was obtained by her personal review of records made in

the regular course of her employer's business, at or near the time

of the events, and recorded by persons with knowledge of the

activity    and   transactions   memorialized   in    the    records.       The

documents    upon   which   Simpson's   certification       was   based    were

admissible as business records under N.J.R.E. 803(c)(6).                  State

v. Sweet, 
195 N.J. 357, 370 (2008).       There was no requirement that

Simpson possess personal knowledge of the events reflected in the

records.    New Century Fin. Servs. v. Oughla, 
437 N.J. Super. 299,

326 (App. Div. 2014) (citing State v. Martorelli, 136 N.J. Super.

                                    7                                 A-3702-16T2
449, 453 (App. Div. 1975)); cf. Ford, 
418 N.J. Super. at 599-600

(finding a certification supporting a summary judgment motion was

inadequate because it did not state it was based upon personal

knowledge "of the material facts alleged therein," and did not

reflect the source of knowledge of the facts stated).

       We also reject defendant's claim plaintiff did not have

standing because plaintiff was not a "holder" of the note under


N.J.S.A. 12A:3-301.      To establish it was the holder, plaintiff was

required to demonstrate a negotiation took place because it was

an entity other than the one to which the instrument was made

payable.      Mitchell, 
422 N.J. Super. at 223.     Where, as here, the

note    was    payable   to   an   identifiable   entity   (i.e.,     AMG),

"negotiation requires two things: 'transfer of possession of the

instrument and its [e]ndorsement by the holder.'"          Ibid. (quoting


N.J.S.A. 12A:3-201(b)).       To show an endorsement, a plaintiff must

establish that "the note [was] endorsed prior to or at the time

of delivery, either in favor of plaintiff or in blank."             Bank of

N.Y. v. Raftogianis, 
418 N.J. Super. 323, 331 (Ch. Div. 2010).

       Plaintiff had     standing as a holder of the note           because

Simpson's certification established plaintiff was in possession

of the note prior to the filing of the complaint, and the note was

endorsed in blank.       Id. at 330-31.     Thus, because there was a

transfer and an endorsement constituting a negotiation, Mitchell,

                                     8                              A-3702-16T2

422 N.J. Super. at 223, prior to the filing of the complaint, the

court correctly found plaintiff had standing to foreclose.

    Defendant's   remaining   contentions   are   without      merit

sufficient to warrant discussion in a written opinion.   R. 2:11-

3(e)(1)(E).

    Affirmed.




                               9                             A-3702-16T2