STATE OF NEW JERSEY VS. HECTOR W. GONZALEZ(01-06-0673 AND 01-07-0717, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0031-15T4

NATIONSTAR MORTGAGE, LLC,

Plaintiff-Respondent,

v.

DEAN MARCIANO,

Defendant-Appellant,

and

CHRISTINE MARCIANO, a/k/a
CHRISTINE M. MARCIANO,
THE PLASTIC SURGERY CENTER;
DISCOVERY BANK; and MIDLAND
FUNDING LLC,

Defendants.
_______________________________________________

Submitted March 21, 2017 – Decided April 18, 2017

Before Judges Yannotti, Gilson, and Sapp-
Peterson.

On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-027407-14.

Dean Marciano, appellant pro se.
 Sandelands Eyet LLP, attorneys for respondent
(Kathleen Cavanaugh, of counsel and on the
brief).

PER CURIAM

In this foreclosure matter, defendant Dean Marciano appeals

from an order entered by the Chancery Division on March 9, 2015,

striking his answer, and an order entered on June 12, 2015, which

denied his motion to vacate the final judgment and dismiss the

complaint. We affirm.

I.

We briefly summarize the relevant facts and procedural

history. Christine M. Marciano borrowed $417,000 from Countrywide

Home Loans, Inc. (Countrywide) and executed a note dated October

20, 2006, promising to repay that amount, with interest, in monthly

installments. The obligation to repay the note was secured by a

mortgage issued to Countrywide that was executed on October 20,

2006, by Ms. Marciano and defendant, on certain property in

Manalapan, New Jersey. The mortgage was recorded in the Office of

the Monmouth County Clerk (MCC) on November 14, 2006. Ms. Marciano

defaulted on the payments due on the note on May 1, 2011.

On September 22, 2011, Mortgage Electronic Registration

Systems, Inc. assigned the mortgage to Bank of America, N.A. The

assignment was recorded in the Office of the MCC on September 30,

2011. A corrected assignment, dated April 2, 2013, was executed

2 A-0031-15T4
and duly recorded. On March 6, 2014, Bank of America, N.A. assigned

the mortgage to plaintiff Nationstar Mortgage, LLC, and that

assignment was duly recorded on March 18, 2014.

Plaintiff commenced its foreclosure action on July 3, 2014.

Ms. Marciano did not contest the foreclosure, but defendant filed

an answer disputing liability. Defendant did not, however, appear

at the case management conference held on December 15, 2014. In

addition, defendant did not respond to plaintiff's requests for

admissions regarding the authenticity and validity of the note and

mortgage, the default, or plaintiff's status as holder of the note

and mortgage.

On February 2, 2015, plaintiff filed a motion to strike

defendant's answer. Although defendant filed a response to the

motion, he did not appear at the oral argument on that motion,

which had been scheduled for March 6, 2015, at his request. The

court entered an order dated March 9, 2015, granting plaintiff's

motion. In ruling on the motion, the judge noted that plaintiff

had established a prima facie case in support of foreclosure, and

defendant had not pled specific facts to support any defense.

Plaintiff then filed a motion for entry of the final judgment

of foreclosure. Defendant did not oppose the motion. The final

judgment was entered on April 21, 2015.

3 A-0031-15T4
 In May 2015, defendant filed a motion pursuant to Rule 4:50-

1 to vacate the final judgment and dismiss the complaint. The

judge considered the motion on June 11, 2015, and placed her

decision on the record that day. The judge stated that defendant

was raising the same issues he had raised when plaintiff sought

to strike his answer.

The judge noted that she had previously found that plaintiff

had standing to foreclose, the assignments of the mortgage were

valid, and the notice of intent to foreclose was valid. The judge

also noted that plaintiff's business records established default,

and there was no basis for defendant's claim that plaintiff

committed fraud. The judge entered an order dated June 12, 2015,

denying the motion. This appeal followed.

On appeal, defendant argues: (1) plaintiff failed to

establish that it had possession of the original note during the

foreclosure action; (2) the assignment of the mortgage to plaintiff

is invalid; (3) without possession of the note or valid assignment

of the mortgage, plaintiff did not have standing to foreclose; (4)

the notice of intent to foreclose misidentifies plaintiff as the

lender; and (5) the court abused its discretion and erred by

ignoring defendant's evidence in failing to dismiss the complaints

pursuant to the "unclean hands" doctrine.

4 A-0031-15T4
 II.

Defendant argues that the trial court erred by granting

plaintiff's motion to strike his answer, which was essentially a

motion for summary judgment pursuant to Rule 4:46-2(c). The rule

provides that a court may grant summary judgment if the moving

party shows that there is no genuine issue of material fact and

the moving party is entitled to judgment as a matter of law. Ibid.

When deciding a summary judgment motion, the trial court

considers "whether the competent evidential materials presented,

when viewed in the light most favorable to the non-moving party,

are 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). We

apply the same standard when reviewing an order granting summary

judgment. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405

(2014).

In support of its motion to strike defendant's answer,

plaintiff presented the trial court with several certifications

and supporting evidence establishing default under the note and

standing to foreclose. Defendant argues, however, that the trial

court should have rejected the certification of Eboney Jones, one

of plaintiff's employees, which sets forth facts concerning

5 A-0031-15T4
plaintiff's possession of the note and the assignment of the

mortgage.

Defendant asserts that Ms. Jones does not have personal

knowledge of the facts in her certification. However, in her

certification, Ms. Jones stated that her statements were based

upon records maintained by plaintiff, with which she is familiar.

Defendant also asserts that Ms. Jones only stated that plaintiff

maintained the subject records in its capacity as plaintiff's

servicer, but according to Ms. Jones, plaintiff also possessed

the original note and an assignment of the mortgage. The trial

court did not err by accepting Ms. Jones's certification and

relying upon the facts stated therein.

Defendant further argues that plaintiff's statement of the

amount of taxes it paid was not accurate. Plaintiff's certification

refers to tax payments made in 2012 and 2013. Defendant claims

that only four payments would have come due during that period.

However, defendant did not submit any evidence or certification

in support of his assertion. He failed to show that there were no

past-due tax payments that would account for the fifth payment

referred to in plaintiff's statement.

Defendant's remaining arguments regarding the order striking

his answer are without sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E). We note, however, that plaintiff established that

6 A-0031-15T4
it possessed the original note and had a valid assignment of the

mortgage before it filed its foreclosure complaint. Standing to

foreclose may be established by either possession of the note or

a valid assignment that predates the foreclosure complaint.

Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318

(App. Div. 2012). Therefore, plaintiff established standing to

foreclose.

We conclude that the trial court correctly found that

defendant had not presented evidence raising a genuine issue as

to any issue of fact pertaining to plaintiff's right to foreclose.

The court did not err by granting plaintiff's motion to strike

defendant's answer.

III.

We next consider defendant's contention that the trial court

erred by denying his motion to vacate the final judgment of

foreclosure pursuant to Rule 4:50-1.

The rule provides that the court may relieve a party from a

judgment for the following reasons:

(a) mistake, inadvertence, surprise, or
excusable neglect; (b) newly discovered
evidence which would probably alter the
judgment or order and which by due diligence
could not have been discovered in time to move
for a new trial under [Rule] 4:49; (c) fraud
(whether heretofore denominated intrinsic or
extrinsic), misrepresentation, or other
misconduct of an adverse party; (d) the

7 A-0031-15T4
 judgment or order is void; (e) the judgment
or order has been satisfied, released or
discharged, or a prior judgment or order upon
which it is based has been reversed or
otherwise vacated, or it is no longer
equitable that the judgment or order should
have prospective application; or (f) any other
reason justifying relief from the operation
of the judgment or order.

[R. 4:50-1.]

A trial court's decision on a Rule 4:50-1 motion is entitled

to "substantial deference, and should not be reversed unless it

results in a clear abuse of discretion." US Bank Nat'l Assoc. v.

Guillaume, 209 N.J. 449, 467 (2012) (citations omitted). An abuse

of discretion may be found when a decision lacks a "rational

explanation," represents an inexplicable "departure from

established policies," or rests "on an impermissible basis." Ibid.

In this matter, defendant argues that he was entitled to

relief under Rules 4:50-1(c) and (f). Defendant contends he

submitted evidence to the trial court which shows that plaintiff

did not have possession of the original note at any time during

the foreclosure proceedings. Defendant asserts that plaintiff

improperly relied upon a faxed copy of the original note. Defendant

suggests that, since plaintiff submitted a faxed copy of the note,

plaintiff did not have possession of the original.

We find no merit in these arguments. As noted previously, Ms.

Jones stated in her certification that plaintiff was in possession

8 A-0031-15T4
of the original note when it filed its foreclosure complaint.

Defendant did not submit any credible evidence to refute Ms.

Jones's statement. The use of a faxed copy does not establish that

plaintiff did not have the original note, or that plaintiff

obtained the judgment as a result of a fraud or forgery.

In any event, as we have explained, plaintiff established

that it had a valid assignment of the mortgage. This was sufficient

to give plaintiff standing to foreclose. Angeles, supra, 428 N.J.

Super. at 318.

In addition, defendant suggests that the assignments may have

been forged or otherwise unauthorized. In support of this

assertion, defendant relies upon information apparently obtained

from the internet website for Federal Home Loan Mortgage

Corporation (Freddie Mac), in which Freddie Mac states it is the

"owner" of defendant's mortgage and note. It is, however, unclear

what Freddie Mac meant by its statement that it was the "owner"

of the mortgage and note.

We note that in the information obtained by defendant on the

internet, Freddie Mac also states that the borrower should contact

his "lender," which it defines as the company to which the borrower

makes payments. Freddie Mac's general characterization of itself

as the "owner" is insufficient to rebut plaintiff's assertion that

it is the holder of the note and assignee of the mortgage.

9 A-0031-15T4
 We therefore conclude that defendant failed to establish any

basis for relief under either Rules 4:50-1(c) or (f). Defendant

presented insufficient evidence to show that plaintiff obtained

the foreclosure judgment by means of a fraud or forgery. He also

failed to show that there was any reason that would justify

granting defendant relief from the judgment.

We have considered defendant's other arguments and conclude

that they are without sufficient merit to warrant discussion in

this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

10 A-0031-15T4