Professional Documents
Culture Documents
Defendants.
ww
w.
St
Before Judges Alvarez and Skillman. On appeal from Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. F-10005-09. Kenneth C. Marano, attorney for appellant. Victoria E. Edwards (Akerman Senterfitt), attorney for respondent.
op Fo
re
MR. TOLEDO, Husband of BERNICE TOLEDO, MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., As Nominee For LEHMAN BROTHERS BANK FSB; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., As Nominee For AURORA LOAN SERVICES LLC,
clo
su re
Fr au d. co
Defendant appeals from an order entered on August 31, 2010, which granted a summary judgment in this mortgage foreclosure
issue as to any material fact challenged and that [plaintiff] is entitled to a judgment as a matter of law." There is no
indication in the record before us that plaintiff ever secured a final judgment of foreclosure. interlocutory. Therefore, the appeal appears
See Wells Fargo Bank, N.A. v. Garner, 416 N.J. However, because defendant
did not move to dismiss on that basis and the appeal has been pending for a substantial period of time, we grant leave to appeal as within time and address the merits. 4(b)(2). See R. 2:4-
However, the following facts may be gleaned from that record. Defendant owns a home in the Borough of Prospect Park. On
July 24, 2006, defendant executed two promissory notes payable to Lehman Brothers Bank, the first for $320,000, which was
w.
payable on August 1, 2036, and the second for $60,000, which was Both notes were secured by mortgages
ww
on defendant's home.
St
op Fo
re
clo
su re
2
Fr au d. co
A-0804-10T3
PER CURIAM
On September 1, 2006, plaintiff began servicing the notes on behalf of Lehman. Sometime in 2008, defendant went into default in the payment of her obligations under the notes.
assignment of the $320,000 note from Lehman and the mortgage securing that note.1 This assignment was signed by a person
assignment document as a "nominee for Lehman Brothers Bank." This document is discussed in greater detail later in the
re
foreclosure action.
ww
The record does not indicate whether there also was an assignment of the $60,000 note and mortgage securing that note.
w.
St
op Fo
clo
opinion.
su re
3
Fr au d. co
A-0804-10T3
upon an affidavit by Laura McCann, one of its vice-presidents, and exhibits attached to that affidavit, which are discussed later in this opinion. certification. Defendant submitted an answering
After hearing oral argument, the trial court issued a brief written opinion and order granting plaintiff's motion. appeal followed. This
N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011) (quoting Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch.
underlying debt "is governed by Article III of the Uniform Commercial Code (UCC), N.J.S.A. 12:3-101 to -605, in particular N.J.S.A. 12A:3-301." Ibid. Under this section of the UCC, the
of the instrument who has the rights of the holder, or [3] a person not in possession of the instrument who is entitled to
ww
w.
St
op Fo
re
clo
Div. 2010)).
su re
4
Fr au d. co
Wells Fargo Bank,
A-0804-10T3
N.J.S.A. 12A:3-301
the promissory notes executed by defendant nor a "person not in possession" of those notes who is entitled to enforce them pursuant to N.J.S.A. 12A:3-309 or N.J.S.A. 12A:3-418(d).
whether plaintiff established that it is "a nonholder in possession of the instrument[s] who has the rights of a holder."
"custody and control of the business records of [plaintiff] as they relate to [defendant's] loans." Regarding each of the
ww
w.
St
op Fo
re
clo
su re
5
Fr au d. co
A-0804-10T3
McCann's affidavit also has attached a copy of a document that purports to be a "Corporate Assignment of Mortgage" from MERS, as Lehman's nominee, to plaintiff. Again, McCann's
affidavit asserts that this document "is a true and correct copy of the instrument assigning the Mortgage and Note to
[plaintiff]," but does not state that she personally confirmed that it was a copy of the original.
Super. at 599 (quoting R. 1:6-6); see also Deutsche Bank Nat'l Trust Co. v. Mitchell, ___ N.J. Super. ___, ___ (App. Div. 2011)
new court rule which specifically states that an affidavit in support of a judgment in a mortgage foreclosure action must be "based on a personal review of business records of the plaintiff or the plaintiff's mortgage loan servicer." R. 4:64-2(c)(2).
"personal review of [plaintiff's] business records" relating to defendant's notes and mortgages.
ww
w.
St
op Fo
re
clo
su re
6
Fr au d. co
A-0804-10T3
notes attached to McCann's affidavit was a copy of the original in plaintiff's files, this would not have been sufficient to establish the effectiveness of the alleged assignment.
document was signed by a JoAnn Rein, who identifies herself as a vice-president of MERS, as nominee for Lehman Brothers, and was notarized in Nebraska.
assignment.
payee of the promissory notes secured by the mortgage, but rather by MERS, "as nominee for Lehman." Although the notes and
petition for bankruptcy protection in September 2008, see Andrew Ross Sorkin, Lehman Files for Bankruptcy; Merrill is Sold, N.Y.
ww
Times (Sept. 14, 2008), which was before the purported assignment of defendant's mortgage and note on January 30, 2009.
w.
St
op Fo
re
clo
self-authenticating document that can support the summary N.J.R.E. 901; see 2 McCormick on
su re
7
Fr au d. co
This
A-0804-10T3
Therefore, we question whether Lehman's designation of MERS as its nominee remained in effect after Lehman filed its bankruptcy
bankruptcy trustee.
the question whether MERS was still Lehman's nominee as of the date of its purported assignment of defendant's note and mortgage to plaintiff.
ww
w.
St
op Fo
re
clo
su re
8
Fr au d. co
A-0804-10T3