DITECH FINANCIAL LLC v. BRUCE BROOMELL

NOT FOR PUBLICATION WITHOUT THE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-3116-17T2
DITECH FINANCIAL LLC,

          Plaintiff-Respondent,

v.

BRUCE BROOMELL,

     Defendant-Appellant.
_______________________________

                    Submitted January 7, 2019 – Decided January 30, 2019

                    Before Judges Sumners and Mitterhoff.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Salem County, Docket No. F-
                    019381-14.

                    Bruce Broomell, appellant pro se.

                    Pluese, Becker, & Saltzman, LLC attorneys for
                    respondent (Stuart H. West, on the briefs).

PER CURIAM

          In this foreclosure action, defendant Bruce Broomell appeals from the trial

court's February 16, 2018 order denying his motion to vacate a final judgment
of foreclosure and dismiss plaintiff Ditech Financial LLC's complaint. We

affirm.

      We briefly recite the relevant facts and procedural history. On August 6,

2007, defendant executed a note in the mount of $144,000 in favor of

Countrywide Bank, FSB.       To secure payment on the note, defendant and

Roxanne Broomell executed a mortgage on a property in Newfield, New Jersey.

In June 2011, Countrywide Bank, FSB assigned the mortgage to BAC Home

Loans Servicing, LP. In May 2013, Bank of America, N.A., successor in interest

to BAC Home Loans Servicing, LP, assigned the note to Green Tree Servicing

LLC. Pursuant to an August 2015 merger, Green Tree Servicing LLC is now

known as Ditech Financial LLC.

      Defendant defaulted on the mortgage in November 2010 and has never

cured the default. On August 2, 2013, plaintiff mailed notices of intent to

foreclosure to defendant.    On May 24, 2014, plaintiff filed a foreclosure

complaint, to which defendant filed a contesting answer. 1

      After completing its discovery obligations, plaintiff moved for summary

judgment, which defendant opposed. On April 1, 2015, the Honorable Anne


1
  The original caption listed Green Tree Servicing LLC as plaintiff. On
December 31, 2015, the trial court entered an order substituting Ditech Financial
LLC for Green Tree Servicing LLC.
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                                       2
McDonnell, P.J. Ch., granted plaintiff's motion for summary judgment. The trial

court entered a final judgment of foreclosure on May 31, 2016.

      After many adjournments, 2 the sheriff's sale was scheduled for February

5, 2018. On January 22, 2018, defendant filed a motion to vacate the final

judgment of foreclosure and dismiss the foreclosure complaint. The motion was

returnable on February 16, 2018, and the sheriff's sale was rescheduled to

February 26, 2018.      On February 16, 2018, after oral argument, Judge

McDonnell rendered an oral decision denying defendant's motion. The subject

property was sold at a sheriff's sale on March 12, 2018.

      On March 14, 2018, defendant appealed the trial court's February 16, 2018

order denying his motion to vacate the final judgment of foreclosure and dismiss

the foreclosure complaint. On appeal, defendant raises the following points for

our review:

              I.   THE STATUTE GRANTING THE RIGHT
                   CONTAIN[S] ESSENTIAL ELEMENTS TO
                   PUT THE COURT IN MOTION AND GIVE ITS
                   JURISDICTION[.]  THE COURT ERRED
                   WHEN [THE] PETITION FAILED TO
                   CONTAIN ALL OF THESE ESSENTIAL
                   ELEMENTS.

2
  Defendant also filed two motions to vacate the final judgment of foreclosure
on June 1, 2017 and July 25, 2017. Judge McDonnell denied the first motion on
June 27, 2017. The second motion was withdrawn as a result of defendant filing
a bankruptcy petition.
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                                       3
            II.   THERE CAN ONLY BE ONE ORIGINAL
                  NOTE[.] PLAINTIFF FAILS TO PROVE THE
                  NOTE IN QUESTION[.] HE HAS NO CLAIM.
                  MORTGAGE FOLLOWS THE NOTE.

           III.   NOTES AND ASSIGNMENTS PRODUCE
                  OWNERSHIP WHICH NEEDS TO BE
                  CERTIFIED[,] AUTHENTICATED AND
                  VALID.

           IV.    FRIENDLY BANKS ARE A THING OF THE
                  PAST[.] BANKS INFLATE[D] [THE] QUOTE
                  SO I COULD NOT CATCH UP.

            V.    PLAINTIFF FAILED TO SERVE A NOTICE
                  OF INTENTION TO FORECLOSE . . . THAT
                  STRICTLY    COMPLIES   WITH      THE
                  STATUTORY REQUIREMENTS OF THE
                  NEW JERSEY FAIR FORECLOSURE ACT.

           VI.    THE TRIAL COURT ERRED IN [GRANTING]
                  SUMMARY JUDGMENT WHEN DISCOVERY
                  WAS NOT COMPLETED.

          VII.    THE COURT ERRED WHEN GRANTING
                  SUMMARY JUDGMENT ON NO PERSONAL
                  KNOWLEDGE FROM [THE CERTIFYING
                  INDIVIDUAL].

         VIII.    THE ISSUES WHEN COMPLETION OF
                  SERVICE IS NOT BY RULE OF LAW [SIC].

     Having reviewed the record in light of the applicable legal principles, we

affirm for substantially the reasons expressed in Judge McDonnell's well-

reasoned oral decision. We add only the following comments.

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                                      4
      Rule 4:50-1 governs relief from a judgment or order. In general, "[t]he

trial court's determination under [Rule 4:50-1] warrants substantial deference,

and should not be reversed unless it results in a clear abuse of discretion." US

Bank Nat'l Ass'n v. Guillaume,  209 N.J. 449, 467 (2012).

      Defendant primarily contends that the final judgment of foreclosure

should be set aside because plaintiff did not possess the original note or have

standing to foreclose. At a hearing on the summary judgment motion, however,

plaintiff produced the original note, which Judge McDonnell determined was

authentic. Accordingly, Judge McDonnell correctly determined that plaintiff

had standing to foreclose because it had both actual possession of the note and

a recorded assignment of the mortgage that predated the complaint .          See

Deutsche Bank Tr. Co. Americas v. Angeles,  428 N.J. Super. 315, 318 (App.

Div. 2012) ("[E]ither possession of the note or an assignment of the mortgage

that predate[s] the original complaint confer[s] standing.").

      The remaining arguments raised by defendant are without sufficient merit

to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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