WELLS FARGO BANK, N.A v. JOHN CANNAROZZO

NOT FOR PUBLICATION WITHOUT THE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
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-4697-18

WELLS FARGO BANK, N.A.,

         Plaintiff-Respondent,

v.

JOHN CANNAROZZO,

         Defendant-Appellant,

and

MRS. JOHN CANNAROZZO,
his wife, and CITIZENS STATE
BANK,

     Defendants.
____________________________

                   Submitted February 8, 2021 - Decided April 8, 2021

                   Before Judges Suter and Smith.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Ocean County, Docket No.
                   F-012375-18.

                   John Cannarozzo, appellant pro se.
            Reed Smith, LLP, attorneys for respondent (Henry F.
            Reichner, of counsel; Ethan R. Buttner, on the brief).

PER CURIAM

      In this residential foreclosure action, the borrower appeals from a

summary judgment order granted by the trial court in favor of the lender. For

the reasons set forth below, we affirm.

                                     I.

      On June 12, 2018, Wells Fargo filed a foreclosure action against John

Cannarozzo (appellant), Mrs. John Cannarozzo, and Citizen's State Bank 1 in the

Ocean County Chancery Division. Appellant filed an answer July 23, 2018, and

Wells Fargo filed a motion for summary judgment on November 5, 2018.

Appellant opposed summary judgment and filed a cross-motion for summary

judgment on February 11, 2019. Appellant argued Wells Fargo had no standing

to bring a foreclosure action because it lost the mortgage note, the Notice of




1
  The defendants in this action are listed in the caption as above. Mrs. John
Canarozzo's appeal was dismissed without prejudice on or about July 1, 2019.
John Canarozzo's appeal was dismissed without prejudice, September 10, 2019,
however his appeal was reinstated November 26, 2019. There is nothing in the
record before us as to Citizen's State Bank. No appearance has been entered in
this appeal on behalf of either Mrs. John Cannarozzo or Citizen's State Bank.
All references in this matter to appellant are to John Cannarozzo only, who is
pro se.
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Intent to Foreclose (NOI) was deficient, and Wells Fargo's affidavits were

hearsay.

      The trial court granted Wells Fargo's motion for summary judgment and

denied the appellant's cross-motion on February 20, 2019. The court entered

final judgment against appellant in the amount of $566,940.05.

                                          II.

      Appellant executed a $484,000 note and mortgage on his residential

property on November 17, 2009. The original note was payable to Stearns

Lending, Inc. (SLI). The original mortgage executed by appellant designated

Mortgage Electronic Registration Systems, Inc (MERS) "as the nominee for

[SLI] and [SLI's] successors and assigns." Appellant defaulted on the note and

mortgage on March 1, 2016.

      After appellant's default, the mortgage was assigned three times. Wells

Fargo submitted an affidavit in support of its summary judgment motion from

Keisha James, Vice-President of Loan Documentation. James attested to three

mortgage assignments: MERS to Seneca Mortgage Servicing, LLC, recorded on

September 15, 2016; Seneca Mortgage Servicing, LLC to Nationstar Mortgage,

LLC, recorded on November 2, 2016; and Nationstar Mortgage LLC to Wells

Fargo Bank, N.A. to recorded on December 27, 2017.


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      Wells Fargo served appellant with a Notice of Intent to Foreclose (NOI)

on April 24, 2018 via certified mail. Wells Fargo filed and served its complaint

on appellant shortly thereafter.

      At some point prior to Wells Fargo's summary judgment motion, the

accompanying note was lost. In addition to the James affidavit, Wells Fargo

submitted a Lost Note Affidavit signed by a different Vice-President for Loan

Documentation, Kelly Butikofer. 2 Ms. Butikofer certified that the note was

inadvertently lost, misplaced, destroyed, pledged, transferred, or otherwise

disposed of. Butikofer further certified that Wells Fargo agreed to indemnify

and hold harmless appellant against "loss or damage, which may result by reason

of a third party presenting the Note and validly enforcing the same against

[appellant], following judgment and before running the statute of limitations for

enforcement of the [n]ote."

      The court found no genuine issues of material fact and granted summary

judgment for Wells Fargo.          The court denied appellant's cross-motion.

Appellant's answer was stricken by the court and the case was returned to the

Office of Foreclosure as uncontested. Appellant challenges both orders.



2
 Both affidavits are part of the record before us. James attached Butikofer's
Lost Note Affidavit to her affidavit in support of summary judgment.
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                                           III.


      Our review of a summary judgment ruling is de novo. Conley v. Guerrero,

 228 N.J. 339, 346 (2017); Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins.

Co. of Pittsburgh,  224 N.J. 189, 199 (2016). We apply the same standard as the

trial court. Ibid.   "Summary judgment must be granted if 'the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment as a matter of

law.'" Town of Kearny v. Brandt,  214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).

We accord no special deference to the trial judge's conclusions on issues of law.

Nicholas v. Mynster,  213 N.J. 463, 478 (2013).

      Appellant argues the lost note prevented Wells Fargo from proving

standing to sue. We disagree. Wells Fargo's lost note affidavit, attesting that

the note was inadvertently lost, misplaced, destroyed, pledged, transferred, or

otherwise disposed of, facilitates its right to enforce the assigned mortgage

under  N.J.S.A. 12A:3-309. Investors Bank v. Torres,  243 N.J. 25, 46-7 (2018).

"[P]ossession of the note or an assignment of the mortgage that predate[s] the

original complaint confer[s] standing." Deutsche Bank Trust v. Angeles, 428



                                                                          A-4697-18
                                        5 N.J. Super 315, 318 (citing Deutsche Bank National Trust Co. v. Mitchell,  422 N.J. Super. 214, 216 (App. Div. 2011)).

      Through the James affidavit, Wells Fargo presented competent evidence

of each recorded assignment, starting with MERS, the original mortgage holder

on behalf of SLI, to Wells Fargo. Its possession of the mortgage assignment on

December 27, 2018, over six months prior to the filing of the complaint,

establishes standing.

      "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). Appellant failed to present any legally competent

evidence to support the allegations in his answer. He presented no facts to

contest execution of the note or mortgage. He presented no facts to contest

default, nor has he contested the amount due.      Our review of the record,

including appellant's answer, reveals no evidence proffered by appellant which

would lead to any genuine issue of material fact. Wells Fargo met its burden as

plaintiff in this foreclosure action by way of admissible and competent proofs

attached to a proper affidavit establishing: the validity of the mortgage, the




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amount of the indebtedness' and the right to resort to foreclosure of the

mortgaged premises.

      We note appellant challenged Wells Fargo's proofs, arguing that its

supporting affidavits were hearsay. James and Butikofer were both Wells Fargo

vice-presidents. They both attested to their familiarity with the business records

maintained by Wells Fargo for the purposes of servicing mortgage loans. They

each reviewed the relevant records pertaining to appellant's matter. James and

Butikofer were competent to testify to the information in their respective

affidavits pursuant to R. 1:6-6. The affidavits were properly admitted pursuant

to the business records exception to the hearsay rule. N.J.R.E. 803(c)(6).


      Appellant argues that the NOI failed to comply with the Fair Foreclosure

Act,  N.J.S.A. 2A:50-53 to 2A:50-73, because it was allegedly not sent by

certified mail. Our review of the record confirms the NOI was served on

appellant in accordance with  N.J.S.A. 2A:50-56. Wells Fargo sent the NOI by

certified mail to appellant at the mortgaged property address. In accordance

with the statute, "[t]he notice is deemed to have been effectuated on the date the

notice is delivered in person or mailed to the party."  N.J.S.A. 2A:50-56(b) .


      The record supports a finding of summary judgment in favor of Wells



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Fargo. Additionally, the record reveals no basis in law or fact to disturb the trial

court's order striking appellant's answer and denying his cross-motion for

summary judgment.


      Appellant's remaining arguments lack sufficient merit to warrant

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


      Affirmed.




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