NOT FOR PUBLICATION WITHOUT THE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-0705-15T1
SANTANDER BANK, N.A.,
Plaintiff-Respondent,
v.
GARRETT F. GRIGGS and
LAURA F. GRIGGS,
Defendants-Appellants,
and
STATE OF NEW JERSEY,
Defendant.
_____________________________________
Submitted July 25, 2017 – Decided August 4, 2017
Before Judges Reisner and Suter.
On appeal from the Superior Court of New
Jersey, Chancery Division, Union County,
Docket No. F-11977-10.
Garrett F. Griggs and Laura F. Griggs,
appellants pro se.
Phelan Hallinan Diamond & Jones, PC, attorneys
for respondent (Sonya Gidumal Chazin, on the
brief).
PER CURIAM
Defendants Garrett and Laura Griggs (defendants) appeal an
August 21, 2015 order that denied their motion to vacate a May 11,
2015 final judgment foreclosing their interest in certain
residential real estate. We affirm.
I.
In September 2006, defendants executed a $315,000 note to
U.S. Mortgage Corporation (U.S. Mortgage) and a non-purchase money
mortgage to Mortgage Electronic Registration Systems, Inc. (MERS),
as nominee for U.S. Mortgage, on a residential property in the
City of Union, Union County. The mortgage was recorded.
Defendants defaulted on the note in August 2009. In October
2009, a notice of intention to foreclose the mortgage was sent to
defendants at their address in Union, which advised defendants
they were in default and the amount needed to cure.
Defendants' mortgage was assigned by MERS to Sovereign Bank
in February 2010 and recorded. Also in February 2010, Sovereign
Bank filed a foreclosure complaint, which was personally served
on defendants. Defendants did not respond and a default was
entered.
Sovereign Bank, N.A. was substituted for Sovereign Bank.
Plaintiff Santander Bank, N.A. (plaintiff), formerly known as
Sovereign Bank, N.A., filed an amended foreclosure complaint in
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December 2013. Defendants were served by mail when personal
service on defendants was not successful. Defendants acknowledge
receiving the amended foreclosure complaint by mail on March 10,
2014. Defendants did not answer the amended complaint, explaining
that they were "trying to get in touch with the mortgage lender
for some time" and were both ill. A default was entered against
defendants on December 2, 2014.
Plaintiff requested entry of a final judgment of foreclosure
in May 2015. Defendants claim they did not receive notice of
this, but the record shows the notice of motion was sent to
defendants' address in Union. When there was no opposition to the
application, a final judgment of foreclosure was entered on May
11, 2015. Defendants claim not to have received a copy of the
final judgment, but the record shows it was mailed to their address
in Union.
Efforts commenced by plaintiff to sell the property at a
sheriff's sale. Defendants filed a motion to vacate the final
judgment of foreclosure, but on August 21, 2015, the trial court
denied defendants' motion. The foreclosed property was sold to
plaintiff on August 26, 2015.
On appeal, defendants contend the court erred in denying the
motion to vacate the final judgment of foreclosure because they
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"raised legally sufficient questions as to the merits of
respondent's foreclosure action and legal justification."
Defendants also claim plaintiff lacked standing to foreclose.
We do not know whether the court issued a memorandum decision
or placed its reasons on the record when it denied defendants'
motion, but the record does not include the court's findings nor
have the parties supplied a transcript or written decision. See
R. 1:7-4(a) ("The court shall by an opinion or memorandum decision,
either written or oral, find the facts and state its conclusions
of law thereon in all actions tried without a jury . . . ."). We
could remand the case to the trial court for clarification, but
under Rule 2:10-5, we also "may exercise such original jurisdiction
as is necessary to the complete determination of any matter on
review." Here, the record enables us to resolve the issues without
a remand.
We review the trial court's order denying defendants' Rule
4:50-1 motion to vacate the final judgment of foreclosure, under
an abuse of discretion standard. Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 283 (1994) (citations omitted). Defendants
have not disputed the amount owed in the final judgment of
foreclosure or that the mortgage is in default. Defendants never
contested the application of this mortgage to their residential
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property. As such, they acknowledge the primary facts needed to
foreclose on the property. See Great Falls Bank v. Pardo, 263
N.J. Super. 388, 394 (Ch. Div. 1993) (citations omitted) ("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 mortgaged premises."), aff’d, 273
N.J. Super. 542 (App. Div. 1994).
Defendants' principal contention is that plaintiff lacks
standing to pursue the foreclosure action. In a foreclosure
matter, a party seeking to establish its right to foreclose on the
mortgage must generally "own or control the underlying debt."
Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. Super. 214, 222
(App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford, 418 N.J.
Super. 592, 597 (App. Div. 2011)). See also Bank of N.Y. v.
Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010) (citations
omitted). In Deutsche Bank Trust Co. Americas v. Angeles, 428
N.J. Super. 315, 318 (App. Div. 2012), we held that "either
possession of the note or an assignment of the mortgage that
predated the original complaint confer[s] standing," thereby
reaffirming our earlier holding in Mitchell, supra, 422 N.J. Super.
at 216.
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Here, in making application for the final judgment of
foreclosure, the bank's representative certified that plaintiff
Santander Bank, N.A. was the "holder of the aforesaid note." Also,
an attorney for plaintiff certified as required by Rule 4:64-2(d)
about communications with plaintiff's employee who personally
reviewed the affidavit of the amount due and the original note,
mortgage and assignments. The mortgage to Sovereign Bank was
recorded before any foreclosure complaint was filed. Sovereign
Bank then became Santander Bank. "Given that the mortgage was
properly recorded and appears facially valid, under New Jersey law
there is a presumption as to its validity, and the burden of proof
as to any invalidity is on the party making such an argument." In
re S.T.G. Enters., Inc., 24 B.R. 173, 176 (Bankr. D.N.J. 1982)
(citations omitted). Defendants submitted nothing to the court
to overcome this presumption. Therefore, the trial court did not
abuse its discretion in denying the motion to vacate because
plaintiff was assigned the mortgage and held the note prior to
filing the complaint or amended complaint.
After carefully reviewing the record and the applicable legal
principles, we conclude that defendants' further arguments are
without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
6 A-0705-151
Affirmed.
7 A-0705-151