DOCKET NO. A-0804-10T3

AURORA LOAN SERVICES, LLC, Plaintiff-Respondent, v. BERNICE TOLEDO, Defendant-Appellant, and 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, Defendants. _________________________________________________________ Submitted September 26, 2011 - Decided October 18, 2011 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.

On See R. defendant executed two promissory notes payable to Lehman Brothers Bank. 2021. v. on defendant's home. 2006. 2010). which was payable on August 1. the first for $320.J.A. N. which was payable on August 1. the following facts may be gleaned from that record. we grant leave to appeal as within time and address the merits.000. 2036.000. Therefore. Both notes were secured by mortgages 2 A-0804-10T3 . 2:4- July 24.PER CURIAM Defendant appeals from an order entered on August 31." There is no indication in the record before us that plaintiff ever secured a final judgment of foreclosure. 523-24 (App. 416 N. Defendant owns a home in the Borough of Prospect Park. did not move to dismiss on that basis and the appeal has been pending for a substantial period of time. and the second for $60. 2010. The record before us is rather sparse and disjointed. Div. However. 520. the appeal appears See Wells Fargo Bank. interlocutory. 4(b)(2). because defendant Super. which granted a summary judgment in this mortgage foreclosure action declaring that defendant's answer "sets forth no genuine issue as to any material fact challenged and that [plaintiff] is entitled to a judgment as a matter of law. Garner. However.

1 This assignment was signed by a person named Joann Rein. Inc. Plaintiff filed a motion for summary judgment to strike defendant's answer on the ground there was no contested issue of fact material to plaintiff's right to foreclose upon defendant's property. On February 23. plaintiff filed this mortgage foreclosure action. On January 30. with the title of Vice-President of Mortgage Electronic Systems.000 note from Lehman and the mortgage securing that note. unsuccessful and are not relevant to our disposition of this appeal. 2009.000 note and mortgage securing that note. plaintiff began servicing the notes on behalf of Lehman. defendant went into default in the payment of her obligations under the notes. The parties subsequently engaged in Those negotiations were negotiations to resolve the matter. 2006. 2009." This document is discussed in greater detail later in the opinion. In support of this motion. plaintiff purportedly obtained an assignment of the $320. plaintiff relied primarily The record does not indicate whether there also was an assignment of the $60. Sometime in 2008.On September 1. 1 3 A-0804-10T3 . (MERS). MERS was described in the assignment document as a "nominee for Lehman Brothers Bank.

N. Div.] 12A-3-309 or 4 A-0804-10T3 . and exhibits attached to that affidavit." Ibid.S. 12:3-101 to -605. To have standing to foreclose a mortgage.J. the trial court issued a brief written opinion and order granting plaintiff's motion. 597 (App. certification. Super. Under this section of the UCC. 592. 323. appeal followed.A.S. in particular N. Div. the determination whether a party owns or controls the underlying debt "is governed by Article III of the Uniform Commercial Code (UCC). 12A:3-301.upon an affidavit by Laura McCann.S.A. Super. 327-28 (Ch.A. 418 N. 2010)). v. After hearing oral argument.A. If the debt is evidenced by a negotiable instrument. such as the promissory notes executed by defendant. the only parties entitled to enforce a negotiable instrument are "[1] the holder of the instrument. 2011) (quoting Bank of N. one of its vice-presidents. a party generally must "own or control the underlying debt. [2] a nonholder in possession of the instrument who has the rights of the holder.J.J.Y. Raftogianis. Ford.J." Wells Fargo Bank. or [3] a person not in possession of the instrument who is entitled to enforce the instrument pursuant to [N.J. v. This Defendant submitted an answering N. 418 N. which are discussed later in this opinion.

J. at 498-99.S.A. see Ford.S. To establish its right to foreclose upon the mortgage defendant executed to secure her $320.S.] 12A:3-418.subsection d.J. supra. McCann asserts that it is a "true and correct copy.J. that plaintiff is neither a "holder" of the promissory notes executed by defendant nor a "person not in possession" of those notes who is entitled to enforce them pursuant to N. 12A:3-418(d).J." Regarding each of the copies of defendant's notes and mortgages attached to her certifications. at 598. plaintiff's right to foreclose upon the mortgages defendant executed to secure those notes depends upon whether plaintiff established that it is "a nonholder in possession of the instrument[s] who has the rights of a holder. plaintiff relied upon an affidavit by Laura McCann. it is clear for the same reasons as in Ford. N.A. Super. as in Ford.S. 418 N. of [N. a vicepresident of plaintiff. 12A:3-301 In this case. 12A:3-301.J.A. 12A:3-309 or N.A.000 note to Lehman. McCann does not state that she personally confirmed that those attachments were copies of originals in plaintiff's files." (brackets added)." N.S." However. 418 N. McCann's affidavit states that she has "custody and control of the business records of [plaintiff] as they relate to [defendant's] loans. Super.J. Therefore.A.J. 5 A-0804-10T3 .

" Ford. supra. even if plaintiff had presented adequate evidence that the purported assignment of the mortgages and 6 A-0804-10T3 . 4:64-2(c)(2). A certification in support of a motion for summary judgment must be based on "personal knowledge. Super. ___ (App. McCann's affidavit asserts that this document "is a true and correct copy of the instrument assigning the Mortgage and Note to [plaintiff]. at 599 (quoting R. Furthermore. v. see also Deutsche Bank Nat'l Trust Co. 2011) (slip op. a 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. 1:6-6). effective December 20." but does not state that she personally confirmed that it was a copy of the original. Our Supreme Court has recently reaffirmed the need for strict compliance with this requirement in mortgage foreclosure actions by adopting. as Lehman's nominee." R.McCann's affidavit also has attached a copy of a document that purports to be a "Corporate Assignment of Mortgage" from MERS. ___ N.J. McCann's affidavit does not state that she conducted such a "personal review of [plaintiff's] business records" relating to defendant's notes and mortgages. ___. Super. Again. Div.J. to plaintiff. Mitchell. 2010. at 17-19). 418 N.

901. which was before the purported assignment of defendant's mortgage and note on January 30. There is an additional potential problem with this purported assignment. 7 A-0804-10T3 . Evidence § 221 (6th ed. N.Y.J. Lehman filed a petition for bankruptcy protection in September 2008. This document was signed by a JoAnn Rein. Times (Sept. who identifies herself as a vice-president of MERS. and was notarized in Nebraska. 14. as N. this would not have been sufficient to establish the effectiveness of the alleged assignment. 2006). 2008).notes attached to McCann's affidavit was a copy of the original in plaintiff's files. "as nominee for Lehman. as nominee for Lehman Brothers. Lehman Files for Bankruptcy.E. In the absence of such further evidence. Plaintiff's submission in support of its motion for summary judgment did not include a certification by Rein or any other representative of MERS regarding her authority to execute the assignment or the circumstances of the assignment. we do not view the purported assignment of the mortgages and notes to be a self-authenticating document that can support the summary judgment in plaintiff's favor. The assignment was not made by Lehman. Merrill is Sold.R. see Andrew Ross Sorkin. but rather by MERS. see 2 McCormick on payee of the promissory notes secured by the mortgage." Although the notes and mortgages appointed MERS as Lehman's nominee. 2009.

On remand.Therefore. absent ratification of that designation by the bankruptcy trustee. we question whether Lehman's designation of MERS as its nominee remained in effect after Lehman filed its bankruptcy petition. the trial court should address 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. Accordingly. we reverse the August 31. 8 A-0804-10T3 . 2010 order granting plaintiff's motion for summary judgment and remand to the trial court for further proceedings in conformity with this opinion.

Sign up to vote on this title
UsefulNot useful