WELLSFARGO BANK, N.A v. KHADIJA AWADALLAH, his/her heirs, devisees and personal representatives, and his, her their or any of their successors in right, title and interest and MR. AWADALLAH, HUSBAND OF KHADIJA AWADALLAH; MORTGAGE ELECTRONIC REGISTRATIO

NOT FOR PUBLICATION WITHOUT THE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-5564-15T4

WELLS FARGO BANK, N.A.,

        Plaintiff-Respondent,

v.

KHADIJA AWADALLAH, his/her
heirs, devisees and personal
representatives, and his, her
their or any of their successors
in right, title and interest,

        Defendant-Appellant,

and

MR. AWADALLAH, HUSBAND OF
KHADIJA AWADALLAH; MORTGAGE
ELECTRONIC REGISTRATION SYSTEMS
INC., AS NOMINEE FOR RBS CITIZENS,
NA; MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS AS NOMINEE FOR
GREEN TREE SERVICING, LLC,

     Defendants.
_____________________________________

              Submitted October 18, 2017 – Decided February 23, 2018

              Before Judges Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Passaic County, Docket No.
              F-024397-13.
           Friend & Wenzel, attorneys for appellant
           (Gerald G. Friend, of counsel and on the
           brief).

           Reed Smith, LLP, attorneys for respondent
           (Henry F. Reichner, of counsel and on the
           brief; Charles D. Whelan, III, on the brief).

PER CURIAM

      Defendant Khadija Awadallah appeals the March 10, 2015 orders

that granted partial summary judgment to plaintiff Wells Fargo

Bank, N.A. (plaintiff), dismissed defendant's counterclaim, and

denied her cross-motion to dismiss the foreclosure complaint.             We

affirm both orders.

      In September 2006, Hani Y. Awadallah1 executed a $416,000 note

to   Wachovia   Mortgage   Corporation   (Wachovia)   on   a   residential

property in Clifton, using the proceeds from the note to satisfy

two outstanding mortgages on the property.            Plaintiff contends

that on the same day, Hani and defendant signed a mortgage on the

property to Mortgage Electronic Registration Systems, Inc. (MERS)

as nominee for Wachovia (the 2006 mortgage), and it was recorded

subsequently.     Defendant's signature on the 2006 mortgage was

notarized by Maratib Kazmi, a notary public.

      In 2008, Hani and defendant executed a loan modification

agreement with Wachovia, which also was notarized.               Plaintiff


1
  We refer to Hani Awadallah by his first name to distinguish him
from defendant, his wife.

                                   2                               A-5564-15T4
alleges that in      2010, Hani and defendant signed a financial

worksheet relating to the property.             The mortgage was assigned to

plaintiff by corporate assignment.

        After Hani Awadallah passed away in January 2012, the loan

went    into   default.     Defendant        paid   $14,900    to   plaintiff       to

reinstate the loan, believing that it was the "original [m]ortgage

that was signed in 2003 at the time we purchased the house."

Further payments were not made, and the loan defaulted in June

2012.

       Plaintiff   filed    a    foreclosure        complaint,        and    because

defendant's     answer    included   a       counterclaim     where    she    denied

signing the note or mortgage, plaintiff amended the complaint to

add a claim to declare the property subject to an equitable

mortgage.

       Plaintiff filed a motion for partial summary judgment to

dismiss defendant's counterclaim, contending she had not overcome

the presumption the signature on the mortgage was valid.                     It also

claimed the court should declare the property subject to                            an

equitable mortgage to avoid unjust enrichment.                Defendant filed a

cross-motion to dismiss the foreclosure complaint, claiming her

signature on the documents was a forgery.

       On March 10, 2015, the trial court granted plaintiff's motion

and denied defendant's.         The court found that defendant's motion,

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filed under Rule 4:6-2(e), was procedurally improper because she

had filed an answer.    The court then found that defendant "knew

it was there," referring to the mortgage.   After Hani's death, she

had an "obligation to marshal the . . . assets of the estate" and

although she tried to do that, she did not continue to make

payments.   The court found that plaintiff had "sent all the

appropriate notices."   The court found that there was no "material

doubt . . . that [defendant] signed this . . . mortgage, [and]

that she participated in a modification process . . . .    She was

very aware of her obligations to satisfy the mortgage."    A final

judgment of foreclosure was entered on July 26, 2016.

     On appeal, defendant contends that the court erred in granting

summary judgment because there were material issues of fact in

dispute about her signature on the documents.   She denied signing

the 2006 mortgage, the 2008 modification agreement or the 2010

financial statement.    Defendant argues that the court erred by

declaring the property subject to an equitable mortgage because

she did not attend the closing or execute the documents.    We are

not persuaded by these claims.

     We review a trial court's orders granting or denying summary

judgment under the same standard employed by the motion judge.

Globe Motor Co. v. Igdalev, 
225 N.J. 469, 479 (2016). The question

is whether the evidence, when viewed in a light most favorable to

                                 4                         A-5564-15T4
the non-moving party, raises genuinely disputed issues of fact

sufficient to warrant resolution by the trier of fact, or whether

"the evidence is so one-sided that one party must prevail as a

matter of law."    Brill v. Guardian Life Ins. Co. of Am., 
142 N.J.
 520, 540 (1995); see also Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 
224 N.J. 189, 199 (2016).                Our

review is plenary.          Bhagat v. Bhagat, 
217 N.J. 22, 38 (2014)

(providing that an appellate court reviews a summary judgment

order applying the same standard as the motion judge).

       When a signature is notarized, we presume it to be valid.


N.J.S.A. 2A:82-17; see Dencer v. Erb, 
142 N.J. Eq. 422, 426 (Ch.

1948) (providing that "[a] certificate of acknowledgment made by

a duly authorized officer is regarded as prima facie evidence that

the person therein named executed the instrument to which it is

attached as his voluntary act and deed.").             This presumption can

only   be   overcome   by    proof    that   is   "clear,   satisfactory    and

convincing."    Potter v. Steer, 
95 N.J. Eq. 102, 104 (Ch. 1923).

Here, even giving defendant the benefit of inferences in her favor,

she did not overcome the presumption of the signature's validity.

       "Competent opposition requires competent evidential material

beyond   mere   speculation     and    fanciful    arguments."     Cortez    v.

Gindhart, 
435 N.J. Super. 589, 605 (App. Div. 2014) (quoting

Hoffman v. Asseenontv.Com, Inc., 
404 N.J. Super. 415, 425-26 (App.

                                        5                            A-5564-15T
4 Div. 2009), certif. denied, 
220 N.J. 269 (2015).      "[C]onclusory

and self-serving assertions by one of the parties are insufficient

to overcome the motion[.]"    Puder v. Buechel, 
183 N.J. 428, 440-

41 (2005); see also Martin v. Rutgers Cas. Ins. Co., 
346 N.J.

Super. 320, 323 (App. Div. 2002) (finding the plaintiff's "self-

serving assertion [was] . . . clearly insufficient to create a

question of material fact for purposes of a summary judgment

motion.").

     The signature on the mortgage was notarized.         The notary

provided a certification where he stated that at the time he

notarized defendant's signature, not only was she present, but he

had her passport in front of him.     His certification does not say

that this was a copy of the passport.

     Defendant's self-serving denial was not supported by any

evidence in the record.      Defendant contended that she may have

been out of the country at the time, but never submitted anything

to support this claim aside from her own certification.    Defendant

apparently was aware the property was mortgaged prior to 2006

because she claimed her $14,900 payment was paid toward that

mortgage.

     Also, the 2006 mortgage was recorded.         "Given that the

mortgage was properly recorded and appears facially valid, under

New Jersey law there is a presumption as to its validity, and the

                                  6                          A-5564-15T4
burden of proof as to any invalidity is on the party making such

an argument." In re S.T.G. Enters., Inc., 
24 B.R. 173, 176 (Bankr.

D.N.J. 1982).    Her self-serving claims also did not overcome this

presumption.

     We are satisfied upon our de novo review that the court's

factual findings were based on sufficient credible evidence in the

record and its legal conclusions were proper.    Therefore, we have

no need to determine whether the property was subject to an

equitable mortgage.

     Affirmed.




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