NOT FOR PUBLICATION WITHOUT THE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-2599-17T2
THE BANK OF NEW YORK
MELLON TRUST COMPANY,
N.A., f/k/a The Bank of New
York Trust Company, N.A. as
successor to JP Morgan Chase Bank,
N.A., as trustee for Residential Asset
Mortgage Products, Inc., Mortgage
Asset-Backed Pass-Through
Certificates Series 2006-RP3,
Plaintiff-Respondent,
v.
TERESA T. SCILLA, a/k/a
THERESA T. SCILLA,
Defendant-Appellant,
and
MR. SCILLA, her husband,
ANDREW GARGIULO,
and NEWMAN SCAROLA.
_______________________________
Submitted January 24, 2019 – Decided April 5, 2019
Before Judges Vernoia and Moynihan.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No. F-
037556-15.
David H. Kaplan, attorney for appellant (Jeffrey M.
Zajac, on the brief).
Winston & Strawn LLP, attorneys for respondent
(Jason R. Lipkin, on the brief).
PER CURIAM
In this foreclosure action, defendant Teresa T. Scilla appeals from the
Chancery Division's: order granting summary judgment to The Bank of New
York Mellon Trust Company, N.A. (plaintiff), formerly known as The Bank of
New York Trust Company, N.A. (BONY), as successor to JPMorgan Chase
Bank, N.A. (Morgan), as trustee for Residential Asset Mortgage Products, Inc.
Mortgage Asset-Backed Pass-Through Certificates Series 2006-RP3; order
denying defendant's objection to the application for final judgment of
foreclosure; and final judgment.
Defendant argues the trial court erred by finding plaintiff proved that it
possessed the note and, because plaintiff failed to comply with the pooling and
servicing agreement governing defendant's loan, it failed to prove a prima facie
case for foreclosure. We are unpersuaded by these arguments and affirm.
A-2599-17T2
2
As set forth in the record and confirmed by defendant in her merits brief,
in July 2005, she executed a note to FGC Commercial Mortgage Finance, DBA
Fremont Mortgage (Fremont) for $351,200 which was secured by a mortgage on
the subject property to Mortgage Electronic Registration Systems, Inc. (MERS),
as nominee for Fremont, its successors and assigns. Following the 2007
recording1 of an initial assignment of mortgage from MERS to BONY, as
successor to Morgan, two corrective assignments were filed, the last being an
October 19, 2015 assignment to plaintiff. Following defendant's failure to make
payments on the loan beginning in November 2006, plaintiff filed this
foreclosure action on November 18, 2015.
In addition to the foregoing facts, the motion judge in granting summary
judgment found defendant failed to respond to plaintiff's request for admissions.
R. 4:22-1. Defendant thus admitted executing the note and mortgage, defaulting
on both as of November 1, 2006, and "that . . . plaintiff is the holder of the
mortgage." See R. 4:22-1. The judge also reviewed a certification submitted
by an assistant vice president of Bank of America, plaintiff's servicer, and found
the contents thereof established a prima facie case. Inasmuch as the judge found
1
The record documents, attached in defendant's appendix, reflect the mortgage
and all assignments were recorded in the Monmouth County Clerk's Office.
A-2599-17T2
3
plaintiff possessed the note and assignment of mortgage prior to filing the
foreclosure complaint, the judge granted plaintiff's motion for summary
judgment and struck defendant's answer.
Summary judgment should be granted if the court determines "there is no
genuine issue as to any material fact challenged and that the moving party is
entitled to a judgment or order as a matter of law." R. 4:46-2(c). We review the
motion judge's decision de novo and afford her ruling no special deference.
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199
(2016). We "consider whether the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party" in
consideration of the applicable evidentiary standard, "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).
"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." Great Falls Bank v. Pardo, 263 N.J. Super.
388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994); accord
Sun NLF Ltd. P'ship v. Sasso, 313 N.J. Super. 546, 550 (App. Div. 1998). The
right to foreclose arises upon proof of execution, recording of a mortgage and
A-2599-17T2
4
note, and default on payment. Thorpe v. Floremoore Corp., 20 N.J. Super. 34,
37 (App. Div. 1952). In that defendant does not dispute that she executed the
note and mortgage, or her November 2006 default, and the record supports
plaintiff's standing to foreclose, summary judgment was correctly granted.
Notwithstanding defendant's argument that plaintiff failed to establish it
possessed the note at the time the foreclosure complaint was filed, plaintiff
demonstrated standing by submitting proof of the pre-complaint assignment of
mortgage. See Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315,
318 (App. Div. 2012) (holding "either possession of the note or an assignment
of the mortgage that predated the original complaint confer[s] standing").
Plaintiff's servicing company's assistant vice president submitted with her
certification true and accurate copies of all assignments, including the October
19, 2015 assignment to plaintiff. Defendant has not proffered any evidence or
argument contesting that recorded document. Inasmuch as plaintiff established
standing through the assignment of mortgage, we need not address defendant's
contention that plaintiff did not establish possession of the note.
Defendant argues that there is no evidence her loan was held pursuant to
the pooling and servicing agreement and that there was a violation of the trust.
If there was a failure to comply with the pooling and servicing agreement,
A-2599-17T2
5
defendant, who was not a party to the agreement, lacks standing to challenge it.
See Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 350 (Ch. Div. 2010)
("[L]itigants generally have no standing to assert the rights of third parties.");
see also Correia v. Deutsche Bank Nat'l Tr. Co., 452 B.R. 319, 324-25 (B.A.P.
1st Cir. 2011) (finding debtors lacked standing to argue that assignment of their
mortgage violated a pooling and servicing agreement because they wer e not
parties to the agreement, nor third-party beneficiaries thereof); Giles v. Phelan,
Hallinan & Schmieg, LLP, 901 F. Supp. 2d 509, 532 (D.N.J. 2012) (finding
plaintiffs could not challenge the validity of assignments transferring their
mortgage from one holder to another).
Although defendant mentions in her merits brief that loan documents were
forged and that a misrepresentation of the loan terms amounted to a deceptive
"bait and switch" tactic, she did not advance that contention at oral argument
before the motion judge, so we will not consider it on appeal.2 Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973). Furthermore, defendant's bald
assertion of forgery and misrepresentation, without specific facts or argument,
does not present competent evidence raising a genuine issue of material fact that
2
We reviewed the transcript of oral argument; defendant's motion brief was not
included in the record.
A-2599-17T2
6
would defeat summary judgment. See Ridge at Back Brook, LLC v. Klenert,
437 N.J. Super. 90, 97-98 (App. Div. 2014) (holding "[b]ald assertions are not
capable of either supporting or defeating summary judgment").
We determine the balance of defendant's arguments, to the extent we have
not addressed them, to be without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Plaintiff had standing to bring this foreclosure action; the complaint –
filed over three years ago – set forth the basis for its standing. The complaint
set forth all assignments; defendant has not presented proof of other
assignments. There is no evidence another entity has attempted to enforce the
note or mortgage since defendant's default. Defendant does not contend she
suffered prejudice as a result of any alleged defect in the pleading. The notice
of intention to foreclose identified plaintiff and its servicer. Defendant has not
paid her mortgage since November 2006. Summary judgment and final
judgment were properly entered in this matter.
Affirmed.
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