U.S. BANK NATIONAL ASSOCIATION v. EDWARD EINHORN

NOT FOR PUBLICATION WITHOUT THE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-4001-16T3


U.S. BANK NATIONAL ASSOCIATION,
as Trustee Successor in Interest
to Wilmington Trust Company as
Trustee Successor in Interest to
Bank of America N.A. as Trustee
Successor by Merger to LaSalle
Bank National Association as
Trustee for Structured Asset
Securities Corporation Mortgage
Pass-Through Certificate Series
2005-6,

        Plaintiff-Respondent,

v.

EDWARD EINHORN,

        Defendant-Appellant,

and

SARAH EINHORN, PNC BANK, N.A.,
AMERICAN EXPRESS BANK, FSB,
BERNARD I. WEINSTEIN, KENNEDY
CONCRETE INC., MIDLAND FUNDING
LLC, and STATE OF NEW JERSEY,

     Defendants.
__________________________________
            Submitted May 1, 2018 – Decided May 22, 2018

            Before Judges Gilson and Mayer.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Atlantic County, Docket No.
            F-039967-15.

            Edward Einhorn, appellant pro se.

            Sandelands Eyet, LLP, attorneys for respondent
            (Suzanne Q. Chamberlin, of counsel and on the
            brief).

PER CURIAM

       In this foreclosure action, defendant Edward Einhorn appeals

from   a   November   2,   2016   order   granting   summary    judgment    to

plaintiff and an April 7, 2017 final judgment of foreclosure.               We

affirm.

       In February 2005, defendant borrowed just over $281,000 and

executed a promissory note in favor of Lehman Brothers Bank, FSB

(Lehman).     To secure payment of the note, defendant executed a

mortgage on property located in Ventnor, New Jersey.            The mortgage

was given to Mortgage Electronic Registration Systems, Inc. (MERS)

as nominee for Lehman.      Thereafter, the mortgage was recorded.

       Defendant stopped making payments on the note in April 2008.

Since then, he has failed to make any payments on the note.

       The mortgage has been assigned three times.             In July 2008,

MERS assigned the mortgage to Aurora Loan Services, LLC (Aurora).

In May 2015, Aurora assigned the mortgage to US Bank National

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Association, as Trustee, Successor in Interest to Wilmington Trust

Company, as Trustee, Successor in Interest to Bank of America,

N.A., as Trustee, Successor by Merger to LaSalle Bank National

Association,     as     Trustee,       for   Structured    Asset   Securities

Corporation Mortgage Pass-Through Certificate Series 2005-6 (US

Bank or plaintiff).           MERS also executed an assignment of the

mortgage in favor of US Bank.                All of the assignments were

recorded.

      US Bank filed a foreclosure action against defendant in

December 2015.       Defendant filed a contesting answer.          Thereafter,

plaintiff moved for summary judgment and defendant cross-moved to

dismiss the complaint.        After hearing oral argument, the Chancery

court denied defendant's cross-motion and granted plaintiff's

motion for summary judgment.            Accordingly, on November 2, 2016,

the   court   entered    an    order    striking     defendant's   answer    and

returning the matter to the Office of Foreclosure to proceed as

an uncontested matter. A final judgment of foreclosure was entered

on April 7, 2017.

      On   appeal,    defendant    makes     three   arguments.     First,    he

contends that plaintiff lacked standing.               Next, he argues that

plaintiff's claims were barred by the statute of limitations.

Finally, he asserts that the certification submitted by plaintiff

in support of its motion for summary judgment was deficient.

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Having reviewed the record and the applicable law, we find no

merit in any of these arguments.

     There is no dispute that defendant executed the note and

mortgage,     the   mortgage   and     assignments   were   recorded,   and

defendant defaulted on the note and has not paid the loan since

April 2008.

     We have held that "either possession of the note or an

assignment of the mortgage that predate[s] the original complaint

confer[s] standing."      Deutsche Bank Tr. Co. Ams. v. Angeles, 
428 N.J. Super. 315, 318 (App. Div. 2012) (citing Deutsche Bank Nat'l

Tr. Co. Ams. v. Mitchell, 
422 N.J. Super. 214, 216 (App. Div.

2011)). Plaintiff certified that it had possession of the original

note prior to the filing of the complaint and produced the original

note in the Chancery court.          As holder of the note, plaintiff is

entitled to enforce the note in a foreclosure action. See 
N.J.S.A.

12A:3-301; Mitchell, 
422 N.J. Super. at 222-23.

     The statute of limitations for a foreclosure of a residential

mortgage is set forth in 
N.J.S.A. 2A:50-56.1.                That statute

provides that a foreclosure action must be             commenced by the

earliest of (a) six years from the date of maturity on the

mortgage; (b) thirty-six years from the date of the recording of

the execution of the mortgage, provided the mortgage itself does

not provide for a period of payment in excess of thirty years; or

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(c) twenty years from the date of default by the debtor on the

mortgage.     Ibid.

     Defendant first claims that this matter did not involve a

residential mortgage.     He submitted no proof of that claim.            In

contrast, plaintiff submitted the mortgage, which makes it clear

that it is a residential mortgage.

     Defendant then argues that his default of the payment on the

note triggered the six-year statute of limitations.          Defendant is

mistaken.     The six-year statute of limitations is triggered by

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

or the note[.]"       
N.J.S.A. 2A:50-56.1(a).       The mortgage was a

thirty-year mortgage with a final payment date of March 1, 2035.

The note also had a maturity date of March 1, 2035.              There is

nothing in the record establishing that plaintiff accelerated the

mortgage or the note prior to filing the foreclosure action.

Accordingly, the twenty-year statute of limitations set forth in

subsection (c) of 
N.J.S.A. 2A:50-56.1 governs.        Plaintiff's action

was timely.

     Finally, we find no merit in defendant's arguments that

plaintiff's    certification   in   support   of   summary   judgment   was

insufficient.     The certification was submitted by an individual

who had reviewed the relevant business records and certified to

those records in accordance with Rule 1:6-6.

                                    5                              A-4001-16T3
Affirmed.




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