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Appellate Decision Bank of America v. Limato NJ A-4880-10T3

Appellate Decision Bank of America v. Limato NJ A-4880-10T3

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Published by Adam Deutsch
NJ Appellate Division Upholds ruling of Bergen County Superior Court Judge Peter Doyne, dismissing Bank of America's foreclosure lawsuit.
Bank of America failed to establish that it was entitled to enforce the promissory note. Further ruled that the certifications of Bank of America's attorney, and employees of Wells Fargo failed to establish admissible evidence showing that Bank of America was entitled to foreclose.
NJ Appellate Division Upholds ruling of Bergen County Superior Court Judge Peter Doyne, dismissing Bank of America's foreclosure lawsuit.
Bank of America failed to establish that it was entitled to enforce the promissory note. Further ruled that the certifications of Bank of America's attorney, and employees of Wells Fargo failed to establish admissible evidence showing that Bank of America was entitled to foreclose.

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Published by: Adam Deutsch on Jul 02, 2012
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07/10/2013

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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISIONSUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISIONDOCKET NO. A-4880-10T3BANK OF AMERICA, N.A.,Plaintiff-Appellant,v.MELISSA LIMATO,Defendant-Respondent. ______________________________Argued March 21, 2012 - DecidedBefore Judges Cuff, Lihotz and St. John.On appeal from the Superior Court of NewJersey, Chancery Division, Bergen County,Docket No. F-61880-09.Barbara E. Riefberg argued the cause forappellant (Shimberg & Friel, P.C.,attorneys; Anne E. Walters, on the briefs).Adam Deutsch argued the cause for respondent(Denbeaux & Denbeaux, attorneys; Mr.Deutsch, on the brief).PER CURIAMPlaintiff Bank of America, N.A., appeals from thedismissal, without prejudice, of this foreclosure action againstdefendant Melissa Limato. The Chancery judge concludedplaintiff had not only failed to comply with the noticeprovision of the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-56,July 2, 2012
 
A-4880-10T3
2but more importantly, lacked standing to pursue foreclosure asit could not demonstrate its status as the holder of the note, anon-holder with possession of the note, or that the originalnote was lost, as required under the Uniform Commercial Code(UCC), N.J.S.A. 12A:3-301. We affirm.The following facts are taken from the record submitted bythe parties in support of their respective motions for summaryjudgment, which we view in a light most favorable to plaintiffas the non-moving party. Brill v. Guardian Life Ins. Co. ofAm., 142 N.J. 520, 523 (1995).On July 1, 2004, defendant and her late husband Johnexecuted a thirty-year promissory note as the "Borrowers" toAmerica's Mortgage Outsource Program (AMOP), which wasdesignated as the "Lender." According to the terms of thepromissory note, Borrowers agreed to repay the principal amountof $532,000, along with interest, fixed at 5.625% per annum ratefor the initial ten years and at an adjustable interest ratethereafter. Simultaneously, defendant and John executed apurchase money mortgage securing the debt through an interest inthe purchased realty. The mortgage was recorded in the BergenCounty Clerk's Office.
 
A-4880-10T3
3Sometime after defendant executed the documents,
1
twoendorsements were added to the last page of the promissory note.The first appeared below the substantive note terms, but abovethe Borrowers' signatures, and was blank:WITHOUT RECOURSEPAY TO THE ORDER OF ____________________________________ WELLS FARGO BANK, NADBA AMERICA'S MORTGAGE OUTSOURCE PROGRAM/s/JOAN M. MILLSJOAN MILLSVICE PRESIDENTThe second was placed in the same section as the Borrowers'signatures:WITHOUT RECOURSEPAY TO THE ORDER OFWELLS FARGO BANK, NABY /s/ JOAN M. MILLS
Sign Original Only
 Joan M. Mills, Vice PresidentThe Mortgage stated it should be returned to "Wells Fargo Bank,N.A." (Wells Fargo).Plaintiff maintains it purchased defendant's loanobligation. Thereafter, Wells Fargo continued to act as itsservicing agent, monitoring defendant's loan, purportedlypursuant to an August 23, 2004 Servicing Agreement.
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Defendant's copy of the promissory note did not contain theendorsements.

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