U.S. BANK TRUST, N.A v. JOSEPH DURELLI,

NOT FOR PUBLICATION WITHOUT THE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-1217-18T3

U.S. BANK TRUST, N.A.,
AS TRUSTEE FOR LSF9
MASTER PARTICIPATION
TRUST,

          Plaintiff-Respondent,

v.

JOSEPH DURELLI, a/k/a
JOSEPH V. DURELLI and
CHERYL DURELLI, his wife,

          Defendants-Appellants,

and

VANZ LLC, CAPITAL ONE
BANK USA, NA, ATLANTIC
CREDIT AND FINANCE,
STATE OF NEW JERSEY,
LEXINGTON NATIONAL
INSURANCE CORPORATION,
and ABC BAIL BONDS, INC.,

     Defendants.
_____________________________

                   Submitted November 7, 2019 – Decided November 20, 2019
               Before Judges Nugent and Suter.

               On appeal from the Superior Court of New Jersey,
               Chancery Division, Mercer County, Docket No. F-
               030316-16.

               Joseph Durelli and Cheryl Durelli, appellants pro se.

               Shapiro & DeNardo, LLC, attorneys for respondent
               (Elizabeth L. Wassall, on the brief).

PER CURIAM

      Defendants Joseph and Cheryl Durelli appeal the October 1, 2018 final

judgment of foreclosure and three other orders 1 entered in this residential

foreclosure.     They claim the trial court erred by granting the foreclosure

judgment because the underlying note was lost. We affirm the judgment and

orders under appeal.

      On March 10, 2006, defendants signed a $272,000 note with HSBC

Mortgage Corporation (USA) (HSBC). The same day, they signed a mortgage

with the Mortgage Electronic Registration System, Inc. (MERS) as nominee for

HSBC on a property located in Hamilton. The mortgage was recorded in April

2006. Defendants defaulted on the mortgage loan in April 2010.


 1 The September 15, 2017 order granted plaintiff's motion for summary
judgment, striking defendants' answer. The August 6, 2018 order denied
defendants' objection to entry of the final judgment. The September 21, 2018
order denied reconsideration of the summary judgment order.
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      The mortgage was assigned on three occasions.         MERS assigned the

mortgage to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans

Servicing, LP (BAC), and recorded it in August 2010. The mortgage was

assigned by BAC to Nationstar Mortgage, LLC (Nationstar) and recorded in

April 2014. On August 18, 2016, Nationstar assigned the mortgage to plaintiff,

U.S. Bank Trust, N.A. as Trustee for LSF9 Master Participation Trust. This was

recorded on October 13, 2016.

      Plaintiff filed a complaint in November 2016 seeking to foreclose on the

mortgage. Plaintiff's summary judgment motion was granted on September 15,

2017. The trial court found there were no genuine issues of fact regarding

plaintiff's right to foreclose. Plaintiff submitted an affidavit from Nationstar's

representative providing that Nationstar lost the note prior to April 20, 2016.

She certified that Nationstar and its "successors and/or assigns [would] hold

harmless the borrower(s) and indemni[fy] the borrower(s) should any unknown

party seek to enforce the lost note and mortgage against the borrower(s)."2 The

mortgage also was assigned to plaintiff and recorded prior to filing the

foreclosure complaint. The court found plaintiff had standing to foreclose.



2
  Defendants overlook this paragraph in arguing that they were not protected
against a third party seeking to enforce the note.
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Defendants' answer was stricken and the case was returned to the Office of

Foreclosure (OOF) as uncontested.

      Plaintiff filed a motion to enter final judgment, but defendants opposed it.

In its denial of defendants' objection, the court noted defendants did not "make

a specific objection to the calculation of the amount due," did not suggest

another amount was due or submit their own calculations to suggest another

amount due. The court found the certification from the loan servicer was a

business record that evidenced an amount due of $447,299.47 on the mortgage

loan. The trial court denied defendants' objection to the amount due, and on

August 6, 2018, returned the case to the OOF.

      Defendants' motion for reconsideration of this order was denied. The

court found its decision was not palpably incorrect.          It had taken into

consideration defendants' arguments about the lost note, the notices of intention

to foreclose and the statute of limitations. A final judgment of foreclosure was

entered on October 1, 2018, with an amount due of $447,299.47. In January

2019, the property was sold at public auction. Plaintiff recorded its deed to the

property in March 2019.




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      On appeal, defendants contend the trial court erred and abused its

discretion by granting summary judgment to plaintiff and also by entering a final

judgment of foreclosure without protecting them from plaintiff's lost note claim.

      A decision to vacate a final judgment lies within the sound discretion of

the trial court, guided by principles of equity. Hous. Auth. of Morristown v.

Little,  135 N.J. 274, 283 (1994).     An "abuse of discretion only arises on

demonstration of 'manifest error or injustice.'" Hisenaj v. Kuehner,  194 N.J. 6,

20 (2008) (quoting State v. Torres,  183 N.J. 554, 572 (2005)). It occurs when

the "'decision [was] made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'" United States

ex rel. U.S. Dep't of Agric. v. Scurry,  193 N.J. 492, 504 (2008) (alteration in

original) (quoting Flagg v. Essex Cty. Prosecutor,  171 N.J. 561, 571 (2002)).

Our review of a trial court's legal determinations is plenary. D'Agostino v.

Maldonado,  216 N.J. 168, 182-83 (2013) (citing Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan,  140 N.J. 366, 378 (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 mortgage premises." Great Falls Bank v. Pardo,  263 N.J. Super.
 388, 394 (Ch. Div. 1993). Here, defendants have not denied the execution of


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the note or mortgage. They have not disputed that the mortgages were recorded

in the Clerk's office or that there is a recorded mortgage to plaintiff. They do

not deny they are in default. They never contested the application of this

mortgage to their residential property. They never raised a specific contest to

the amount due under the mortgage. Therefore, the court did not abuse its

discretion by entering a final judgment of foreclosure.

      Defendants argue the trial court should not have granted plaintiff summary

judgment because the note was lost and was not in plaintiff's possession when it

filed for foreclosure. A party seeking to establish its right to foreclose on a

mortgage must generally "[']own or control the underlying debt.'" Deutsche

Bank Nat'l Tr. 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)); see also Bank of N.Y. v. Raftogianis,  418 N.J. Super. 323, 327-28 (Ch.

Div. 2010). In Deutsche Bank Tr. Co. Ams. v. Angeles,  428 N.J. Super. 315,

318 (App. Div. 2012), we held that "either possession of the note or an

assignment of the mortgage that predated the original complaint confer[s]

standing," thereby reaffirming our earlier holding in Mitchell.

      We are satisfied the trial court did not err in granting plaintiff summary

judgment. A representative of plaintiff's servicer certified that the mortgage was


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assigned to plaintiff in 2016. The recorded assignments were in evidence. We

agree with the trial court that this proof satisfied Angeles' requirements for

standing.

      Defendants did not refute plaintiff's proofs. Instead, they argued that

because the note was lost, plaintiff did not have the ability to foreclose. This is

contrary to the court's holding in Angeles that found standing based either on

possession of the note or assignment of the mortgage. Plaintiff proved the

mortgage was assigned to it and recorded prior to filing the foreclosure

complaint. Plaintiff also had an affidavit from Nationstar about the lost note .

Whether the lost note affidavit—by itself—would satisfy the standing

requirement is not the issue; here, there was no dispute that plaintiff was

assigned the mortgage prior to filing the foreclosure complaint. The trial court

did not err in finding that plaintiff had standing to foreclose on the loan executed

by defendants based on the assignment.

      Defendants' motion for reconsideration added nothing new. The trial

court did not abuse its discretion by denying reconsideration.         Defendants'

remaining arguments are without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


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