U.S. BANK NATIONAL ASSOCIATION v. THOMAS U. ROGERS

NOT FOR PUBLICATION WITHOUT THE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-1313-20

U.S. BANK NATIONAL
ASSOCIATION, SUCCESSOR IN
INTEREST TO BANK OF
AMERICA, NATIONAL
ASSOCIATION, SUCCESSOR BY
MERGER TO LASALLE BANK
NATIONAL ASSOCIATION AS
TRUSTEE FOR GSAMP TRUST
2007-NCI MORTGAGE
PASS-THROUGH CERTIFICATES,
SERIES 2007-NC1,

          Plaintiff-Respondent,

v.

THOMAS U. ROGERS, HIS HEIRS,
DEVISEES AND PERSONAL
REPRESENTATIVES, AND HIS,
HERS, THEIR OR ANY OF THEIR
SUCCESSORS IN RIGHT, TITLE
AND INTEREST, RONALD R.
SHELDON, SR., PERSONAL
REPRESENTATIVE OF THE
ESTATE OF THOMAS U. ROGERS,
UNITED STATES OFAMERICA,
DEPARTMENT OF THE TREASURY-
INTERNAL REVENUE SERVICE,
and STATE OF NEW JERSEY,
      Defendants,

and

FRANCES ROGERS,

     Defendant-Appellant,
_________________________________

           Submitted February 28, 2022 – Decided March 18, 2022

           Before Judges Mayer and Natali.

           On appeal from the Superior Court of New Jersey,
           Chancery Division, Burlington County, Docket No.
           F-023883-15.

           Frances Rogers, appellant pro se.

           Duane Morris, LLP, attorneys for respondent (Brett L.
           Messinger, of counsel and on the brief).

PER CURIAM

      Defendant Frances Rogers appeals from the following orders: (1) a

September 13, 2016 order granting summary judgment to plaintiff U.S. Bank

National Association, successor in interest to Bank of America, National

Association, successor by merger to LaSalle Bank National Association as

Trustee for GSAMP Trust 2007-NC1 Mortgage Pass-Through Certificates,

Series 2007-NC1 (U.S. Bank); (2) a December 4, 2020 order denying

defendant's motion for testimony and production of documents and cross-motion

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to deny final judgment; and (3) a December 15, 2020 final foreclosure judgment.

Because there is a material fact dispute in the record regarding the U.S. Bank's

possession of the note and mortgage when it filed the foreclosure action, we

reverse the September 13, 2016 order granting summary judgment to U.S. Bank

and remand the matter to the trial court. Consequently, the orders entered after

the September 13, 2016 order are void ab initio.

      Defendant is the wife of defendant Thomas Rogers, who died in 2009. In

2006, Thomas Rogers executed and delivered a note to New Century Mortgage

Corporation (New Century) for a loan in the amount of $190,800. A lien was

placed on defendant's home to secure the loan, and defendant and her husband

executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc.

(MERS) serving as nominee for New Century. The mortgage was properly

recorded.

      New Century filed for bankruptcy and went into liquidation in 2007. The

disposition of New Century's holdings at the time of the liquidation, specifically

the note signed by Thomas Rogers, is unclear from the record on appeal.

      In 2009, MERS assigned the mortgage to Bank of America, National

Association as Successor by Merger to LaSalle Bank National Association, as

Trustee under the Pooling and Servicing Agreement Dated as of February 1,


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2007, GSAMP Trust 2007-NC1 (BOA). The mortgage assignment was duly

recorded on August 5, 2009.

      In 2009, Thomas Rogers defaulted on the loan. BOA filed a foreclosure

action on June 30, 2009. The foreclosure complaint stated BOA possessed the

note and mortgage when it filed the foreclosure action. From October 2009 to

June 2010, defendant made payments under the note to Litton Loan Servicing.1

As a result of defendant's payments, in 2013, BOA voluntarily dismissed the

foreclosure action.

      In April 2014, BOA assigned the mortgage to U.S. Bank. The assignment

of the mortgage was properly recorded.

      Because defendant failed to cure the default by paying all sums due and

owed on the note, U.S. Bank filed a foreclosure action on July 6, 2015.

Defendant filed an answer, counterclaims, and motion to dismiss the foreclosure

complaint.

      U.S. Bank moved to dismiss defendant's counterclaims, relying on an

October 16, 2013 order and memorandum of opinion in a United States District

Court matter entitled Frances Rogers v. Brad A. Morrice, et al., Civil Action No.


1
  Ocwen Loan Servicing, LLC (Ocwen) succeeded Litton Loan Servicing as the
loan servicer.


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12-7910 (JBS/KMW) (federal lawsuit). In the federal lawsuit, Frances Rogers,

as plaintiff, asserted claims against U.S. Bank and several other defendants,

which partially mirrored her counterclaims against U.S. Bank in the foreclosure

action.

      The federal court judge dismissed the federal lawsuit on procedural

grounds after allowing Frances Rogers three separate opportunities to conform

her deficient complaint consistent with the Federal Rules of Civil Procedure. In

dismissing the federal lawsuit with prejudice, the federal court judge concluded

"failures and refusals to conform [the pleading] with the Federal Rules

obscure[d] the substance of [Frances Roger's] claims." However, the federal

court judge noted the "failure to discuss a specific claim or assertion in the

[c]omplaint . . . does not mean that the Court believes the claim or the assertion

is without merit." In his October 16, 2013 order and memorandum of decision,

the federal court judge based the dismissal on deficiencies and lack of clarity in

the pleading, not on the merits of the asserted claims.

      Relying on the dismissal of the federal lawsuit with prejudice, on

December 4, 2015, the foreclosure judge granted U.S. Bank's motion to dismiss

defendant's counterclaim and denied defendant's motion to dismiss the

foreclosure action. The December 4, 2015 order is not the subject of this appeal.


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      In June 2016, U.S. Bank moved for summary judgment.              Defendant

opposed U.S. Bank's motion and filed a series of motions seeking reinstatement

of the counterclaim, dismissal of the foreclosure action, recusal of the

foreclosure judge, and sanctions against U.S. Bank's counsel. In a September

13, 2016 order, the foreclosure judge granted U.S. Bank's motion for summary

judgment, striking defendant's answer and suppressing her affirmative defenses.

The foreclosure judge denied defendant's motions as lacking any factual bases

or legal support. The foreclosure judge returned the case to the Office of

Foreclosure as an uncontested matter.

      In granting summary judgment, the foreclosure judge found "that [US

Bank] is the holder of the Note and Mortgage dated November 28, 2006, in the

principal amount of $190,800.00 . . . [and] the mortgage was recorded and

assigned to [U.S. Bank] on April 7, 2014." The judge concluded defendant did

not make monthly payments and the loan went into default on November 1,

2009. The foreclosure judge held "[d]efendant's two primary arguments – the

subject mortgage was void due to an alleged conspiracy of lenders in the

mortgage industry to defraud and deceive [d]efendant, and [p]laintiff failed to

acquire the Note and Mortgage through a valid, unbroken chain of title – were

already litigated and decided in favor of [U.S. Bank] in the Federal matter, 1:12-


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cv-07910-JBS-KMW." The foreclosure judge determined the documentation

submitted by U.S. Bank in support of summary judgment

            show[ed] that prior to the filing of the foreclosure
            complaint, [it] had possession of the Note and
            Mortgage. The original Note was executed and
            delivered to New Century Mortgage Corporation. The
            Note was subsequently endorsed in blank and
            transferred to [p]laintiff. The Mortgage was assigned
            by [BOA] to [p]laintiff on April 7, 2014. Thus,
            [p]laintiff established standing, under the reasoning of
            Mitchell or Angeles, as an assignee by assignment
            made prior to the filing of the complaint, and
            possession of the note prior to the filing of the
            complaint.

      On October 28, 2020, U.S. Bank moved for entry of final judgment. In

response, defendant filed the following motions: (1) an Omnibus Cross-Motion

for an Order: (a) denying final judgment to U.S. Bank, (b) "awarding defendant

. . . equitable recoupment to extinguish amount declared due to [U.S. Bank],"

(c) dismissing the foreclosure action with prejudice, and (d) "other relief;" (2) a

"Motion for Testimony and Production of Documents," and (3) an "Objection to

the Affidavit of Amount Declared Due for Final Judgment." U.S. Bank opposed

defendant's motions.

      In a December 4, 2020 order, the foreclosure judge denied defendant's

motions and overruled defendant's objection to the amount due. She returned



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the matter to the Office of Foreclosure for entry of final judgment. On December

15, 2020, U.S. Bank obtained a final foreclosure judgment.

        On appeal, defendant raises several issues. She contests U.S. Bank's

standing to file the foreclosure action. She also disputes the amounts due under

the note and the date of default. Defendant further claims the loan servicer

lacked the power of attorney to submit certifications in support of U.S. Bank's

foreclosure action.   Additionally, defendant contends the foreclosure judge

should have allowed further discovery based on newly discovered evidence.

Defendant also asserts a violation of her constitutional rights under the

procedural and substantive Due Process Clause, the Equal Protection Clause,

and Article I of the New Jersey Constitution.

        We review the grant or denial of a motion for summary judgment de novo.

Branch v. Cream-O-Land Dairy,  244 N.J. 567, 582 (2021). A motion for

summary judgment must be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

that 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).




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      "To decide whether a genuine issue of material fact exists, the trial court

must 'draw[] all legitimate inferences from the facts in favor of the non -moving

party.'" Friedman v. Martinez,  242 N.J. 450, 472 (2020) (quoting Globe Motor

Co. v. Igdalev,  225 N.J. 469, 480 (2016)). The key inquiry is whether the

evidence presented "is 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); see also Rozenblit v. Lyles,  245 N.J.
 105, 121 (2021).

      We consider facts on a summary judgment record in the light most

favorable to the non-moving party. Angland v. Mountain Creek Resort, Inc.,

 213 N.J. 573, 577 (2013). In reviewing a summary judgment order, an appellate

court must "confine [itself] to the original summary judgment record."

Lombardi v. Masso,  207 N.J. 517, 542 (2011). We must determine whether

there is a disputed fact sufficient to withstand summary judgment on the record

before us.

      We begin our review with defendant's claim U.S. Bank lacked standing to

foreclose. A party seeking to foreclose on a mortgage must own or control the

underlying debt at the time it files the foreclosure complaint. Wells Fargo Bank,

N.A. v. Ford,  418 N.J. Super. 592, 597 (App. Div. 2011).


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      Rule 4:64-1(b)(10) requires a foreclosure complaint state "the names of

the original mortgagee and a recital of all assignments in the chain of title," if

"the plaintiff is not the original mortgagee or original nominee mortgagee."

When the note is separated from the mortgage, plaintiff must specifically prove

it owns or controls the mortgage and the underlying note. Residential Mortg.

Loan Tr. 2013-TT2 v. Morgan Stanley Mortg. Cap., Inc.,  457 N.J. Super. 237,

240-41, 247-48 (App. Div. 2018).

      We have held possession of the note or an assignment of the mortgage that

predated the original complaint confers standing in a foreclosure action.     See

Deutsch Bank Trust Co. Americas v. Angeles,  428 N.J. Super. 315, 318 (App.

Div. 2012); Deutsche Bank Nat'l Trust Co. v. Mitchell,  422 N.J. Super. 214, 216,

225 (App. Div. 2011). However, in Capital One, N.A. v. Peck,  455 N.J. Super.
 254, 259 (App. Div. 2018), we retreated slightly from the standard established

in Angeles and Mitchell.

      In Peck, we held where a "note is separated from the mortgage, the

plaintiff in a foreclosure action must demonstrate both possession of the note

and a valid mortgage assignment prior to filing the complaint." Ibid. We

concluded possession of the note and assignment of the mortgage were required




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to establish standing "[t]o preclude the possibility of one entity foreclosing on

the home while the other enforces the note." Ibid.

      Here, in support of its motion for summary judgment, U.S. Bank relied on

a June 3, 2016 certification submitted by an Ocwen loan analyst, establishing

U.S. Bank's possession of the note and mortgage to confer standing to foreclose.

However, that certification is inconsistent with other information in the record.

      The certification from the Ocwen loan analyst, submitted almost one year

after U.S. Bank filed the foreclosure complaint, stated "[U.S. Bank] has been in

possession of the [n]ote since on or before December 8, 2006."          No other

information regarding assignment of the note is contained in the analyst's

certification.   U.S. Bank's foreclosure complaint also lacks information

regarding an assignment of the note from New Century 2 or BOA.

        According to BOA's foreclosure complaint, as of 2009, BOA had

possession of the note and mortgage. This presents an unresolved discrepancy

in the record because the certification from the Ocwen loan analyst stated U.S.

Bank had possession of the note since December 2006.




2
  There is no information in the record regarding disposition of the note after
New Century's bankruptcy and liquidation.
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      As the non-moving party opposing U.S. Bank's summary judgment

motion, defendant must be accorded every favorable inference. There is a

factual dispute regarding U.S. Bank's possession of the note and mortgage on

the date it filed the foreclosure complaint. U.S. Bank could not have possessed

the note in December 2006 because BOA claimed it possessed the note in 2009.

This discrepancy may, or may not, be attributable to a typographical error.

      Because we are unable to determine from the record whether U.S. Bank

possessed the note when it filed the foreclosure complaint, we are constrained

to vacate the September 13, 2016 order granting summary judgment to U.S.

Bank, striking defendant's answer and suppressing all defenses. As a result, the

orders entered after September 2016 are void ab initio. We take no position on

the merits of the foreclosure judge's rulings on orders other than the September

13, 2016 order.

      We recognize litigation must eventually end. However, a party's right to

a final judgment must be grounded on sufficient evidence in the record. Here,

the basis upon which the final foreclosure judgment was premised, the

foreclosure judge's finding U.S. Bank had standing to foreclose, is not

conclusively established through the record on appeal.




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      We remand the matter to the trial court. U.S. Bank may renew its motion

for summary judgment, demonstrating it possessed the note and mortgage on the

date it filed the foreclosure complaint. In the event U.S. Bank renews its

summary judgment motion, U.S. Bank may need to rely on additional evidence.

If U.S. Bank is allowed to submit additional evidence in support of summary

judgment, defendant should be allowed to proffer additional evidence or

information in opposition to a renewed summary judgment motion. We take no

position regarding future motions that may be filed by either party.

      Reversed and remanded. We do not retain jurisdiction.




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