U.S. BANK, N.A. v. MICHAEL R. BELLO

NOT FOR PUBLICATION WITHOUT THE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-0237-17T2

U.S. BANK, N.A., Successor
Trustee to Bank of America,
N.A., Successor in Interest to
LaSalle Bank N.A., as Trustee,
on Behalf of the WaMu
Mortgage Pass-Through
Certificates, Series 2007-HY3,

          Plaintiffs-Respondents,

v.

MICHAEL R. BELLO, his/her heirs,
devisees, and personal representatives,
and his, her, their or any of their
successors in right, title and interest,

          Defendant-Appellant,

and

MRS. MICHAEL R. BELLO, wife of
MICHAEL R. BELLO, BANK OF NEW
JERSEY, STEVEN SEGALAS, ESQ.,
his/her heirs, devisees, and personal
representatives, and his, her, their or
any of their successors in right, title
and interest, and SMS FINANCIAL
XXVII LLC,
     Defendants.
________________________________

            Submitted November 8, 2018 – Decided February 7, 2019

            Before Judges Vernoia and Moynihan.

            On appeal from Superior Court of New Jersey,
            Chancery Division, Ocean County, Docket No. F-
            026317-14.

            Ira J. Metrick, attorney for appellant.

            Milstead & Associates, LLC, attorneys for respondent
            (Joel H. Aronow, on the brief).

PER CURIAM

      In this foreclosure action, defendant Michael R. Bello appeals from: the

Chancery Division's order granting summary judgment to Bank of America, NA

(BOA); a final judgment of foreclosure entered after default was granted; and

the denial of his motion to reconsider the grant of summary judgment.

      Defendant reprises the arguments made to the trial court and contends

BOA's motion for summary judgment should have been denied because of

numerous standing issues: insufficient evidence that BOA was the holder of the

note at the time the complaint was filed; the note was not endorsed to BOA; the

certification supporting the motion for summary judgment was not based on

personal knowledge, did not set forth the documents relied upon by the witness,


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and did not establish that BOA was entitled to enforce the note under  N.J.S.A.

12A:3-301.    He further argues the trial court erred by concluding the

assignments listed in public Security and Exchange Commission filings did not

have to be listed in the complaint as required by Rule 4:64-1(b)(10); and the

"sole assignment relied upon by [BOA] could not have assigned the mortgage

to [BOA]." We are unpersuaded by any of these arguments and affirm.

      In a March 2006 refinance, defendant executed an adjustable rate note for

$1,235,000 to Washington Mutual Bank, F.A. (WaMu) and granted the bank a

first mortgage on a Forked River property which was recorded on April 7, 2006.

JPMorgan Chase Bank, NA, (JPMorgan) purchased the loans and assets of

Washington Mutual Bank (Washington Mutual), formerly known as WaMu,

from the Federal Deposit Insurance Corporation (FDIC) – which was acting as

the receiver for Washington Mutual – in October 2008. In May 2010, JPMorgan

assigned defendant's mortgage to BOA, successor by merger to LaSalle Bank

NA (LaSalle), as trustee for WaMu Mortgage Pass-Through Certificates Series

2007-HY3 Trust (HY3 Trust). The assignment was recorded on May 14, 2010.

U.S. Bank, NA, was the last successor trustee of the HY3 Trust.

      Defendant failed to make his monthly mortgage payments and the loan

entered into default on June 1, 2010. On June 26, 2014, BOA filed a foreclosure


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complaint against defendant. In his contesting answer, defendant acknowledged

he executed the note and mortgage but denied the loan was in default.

       In its September 1, 2016 motion to substitute plaintiff, grant summary

judgment and strike defendant's answer, plaintiff relied upon the certification of

an employee of plaintiff's servicer and agent, Select Portfolio Servicing, Inc.

(SPS), who certified that plaintiff was the holder of the note and was assigned

the mortgage on May 3, 2010. 1 The employee attached copies of the note,

mortgage and assignment to her certification.

      The Chancery Division judge, in granting summary judgment, striking

defendant's answer and forwarding the case to the Office of Foreclosure to

proceed as an uncontested matter, found: defendant did not dispute the validity

of the note or mortgage; the servicing company's employee's certification, and

the documents – including the note, mortgage, assignment and NOI, all of which

the judge found were business records – established BOA's standing; defendant

had no standing to challenge the assignment agreements as he was not a party to




1
   In her certification, the employee represented that SPS was "[p]laintiff's
authorized servicer and agent for U.S. Bank, NA, successor trustee to [BOA]."



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them; there was no break in the chain of title; and BOA had standing as successor

in interest to LaSalle as trustee for Washington Mutual. 2

      Summary judgment should be granted if the court determines "there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law." R. 4:46-2(c). We review the

motion judge's decision de novo and afford his ruling no special deference.

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co.,  224 N.J. 189, 199

(2016). We "consider whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party" in

consideration of the applicable evidentiary standard, "are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995).

      "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); accord



2
   The judge also granted the motion to substitute U.S. Bank, NA, successor
trustee to BOA, successor in interest to LaSalle, as trustee, on behalf of the HY3
Trust as plaintiff and denied defendant's cross-motion for summary judgment.
Defendant did not appeal those rulings.
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Sun NLF Ltd. P'ship v. Sasso,  313 N.J. Super. 546, 550 (App. Div. 1998). The

right to foreclose arises upon proof of execution, recording of a mortgage and

note, and default on payment of the note. Thorpe v. Floremoore Corp.,  20 N.J.

Super. 34, 37 (App. Div. 1952). Inasmuch as defendant does not dispute that he

executed the note and mortgage, or his June 2010 default, and the record

supports BOA's standing to foreclose, summary judgment was correctly granted.

      Contrary to defendant's arguments, BOA demonstrated standing by

submitting proof of the pre-complaint assignment of mortgage. See Deutsche

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

(holding "either possession of the note or an assignment of the mortgage that

predated the original complaint confer[s] standing").     Plaintiff's servicing

company's employee submitted with her certification a true and accurate copy

of the note and the May 3, 2010 assignment of mortgage to BOA which was

recorded on May 14, 2010 – well prior to the foreclosure complaint filing date

of June 26, 2014. We agree with the judge that the certification, supported by

the business records attached, established BOA's standing. N.J.R.E. 803(c)(6).

      Defendant also argues WaMu, from which defendant obtained the loan,

ceased banking operations and that there were multiple assignments between




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2007, when the HY3 Trust was created,3 and 2010, when JPMorgan assigned the

mortgage to BOA.       He contends BOA does not have "any rights to this

[m]ortgage unless it can establish prior [a]ssignments into the [HY3] [T]rust,"

without proof of which BOA did not have standing "because the [t]rust cannot

validly hold an interest because it failed to comply with the governing pooling

and servicing agreement" which created the trust.

      It is not disputed that BOA was successor in interest to LaSalle, which

was the trustee of the HY3 Trust, and that defendant's mortgage was included in

that trust; defendant included that portion of the pooling and servicing

agreement establishing those relationships in the appendix to his merits brief. If

there was a failure to comply with the pooling and servicing agreement,

defendant, who was not a party to the agreement, lacks standing to challenge it.

See Bank of N.Y. v. Raftogianis,  418 N.J. Super. 323, 350 (Ch. Div. 2010)

("[L]itigants generally have no standing to assert the rights of third parties.");

see also Giles v. Phelan, Hallinan & Schmieg, LLP,  901 F. Supp. 2d 509, 532

(D.N.J. 2012) (finding plaintiffs could not challenge the validity of assignments

transferring their mortgage from one holder to another); Correia v. Deutsche


3
  Only a portion of the pooling and servicing agreement appointing LaSalle as
the original trustee of the HY3 Trust, that included defendant's mortgage as an
asset, is provided in the appendix.
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Bank Nat'l Tr. Co.,  452 B.R. 319, 324-25 (B.A.P. 1st Cir. 2011) (finding debtors

lacked standing to argue that assignment of their mortgage violated a pooling

and servicing agreement because they were not parties to the agreement, nor

third-party beneficiaries thereof).

      We perceive no merit in defendant's argument that plaintiff violated Rule

4:64-1(b)(10) by not listing in the complaint additional assignments in the chain

of title, beyond the one plaintiff recited from JPMorgan to BOA. Rule 4:64-

1(b)(10) provides, "if the plaintiff is not the original mortgagee or original

nominee mortgagee," the complaint shall state "the names of the original

mortgagee and a recital of all assignments in the chain of title."         BOA's

complaint recited the March 20, 2006 origination of the mortgage by WaMu and

the May 3, 2010 assignment from JPMorgan to BOA, the terms of which set

forth JPMorgan's purchase of WaMu's assets, the FDIC's involvement, BOA's

status as trustee of the relevant trust, and the Ocean County record of the trust.

       As the judge found, U.S. Bank, BOA and LaSalle were trustees or

successors of the HY3 Trust. As such, the judge correctly concluded "the

mortgage remained in the same name." We do not read Rule 4:64-1(b)(10) to

require trustees or successors of a trust created pursuant to a pooling and

services agreement be recited in the foreclosure complaint.


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      We determine the balance of defendant's arguments, to the extent we have

not addressed them, to be without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E). He raises no further arguments regarding

the denial of his motion for reconsideration. We see no abuse of discretion in

the denial of that motion. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment,

 440 N.J. Super. 378, 382 (App. Div. 2015).

      Defendant presents no competent evidence raising a genuine issue of

material fact as to whether BOA is the proper party in interest to bring this

foreclosure complaint. As noted, BOA had standing to bring this foreclosure

action; the complaint – filed four years ago – set forth the basis for its standing.

The complaint set forth all assignments; defendant has not presented proof of

other assignments. There is no evidence another entity has attempted to enforce

the note or mortgage since defendant's default. Defendant does not contend he

suffered prejudice as a result of any alleged defect in the pleading. Defendant

has not paid his mortgage since June 2010. Final judgment was entered on July

27, 2017. Summary judgment and final judgment were properly entered in this

matter.

      Affirmed.




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