U.S. BANK NATIONAL ASSOCIATION, ETC. VS. LEROY SPELLS (F-019475-16, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-1115-17T1

U.S. BANK NATIONAL
ASSOCIATION, as Trustee
for Residential Asset
Mortgage Products, Inc.,
Mortgage Asset-Backed
Pass-Through Certificates,
Series 2005-EFC5,

Plaintiff-Respondent,

v.

LEROY SPELLS,

Defendant-Appellant,

and

CHERYL SPELLS, ROBERT
WOOD JOHNSON UNIVERSITY
and STEVEN T. DEAK, M.D.,

Defendants.
________________________________

Submitted November 14, 2018 – Decided November 29, 2018

Before Judges Suter and Firko.
 On appeal from Superior Court of New Jersey,
Chancery Division, Somerset County, Docket No. F-
019475-16.

Leroy Spells, appellant pro se.

Duane Morris, LLP, attorneys for respondent (Brett L.
Messinger and Stuart I. Seiden, of counsel and on the
brief).

PER CURIAM

Defendant Leroy Spells appeals the September 27, 2017 final judgment,

foreclosing his interest in certain residential real estate. We disagree with

defendant's arguments that plaintiff lacked standing to foreclose and did not

comply with the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -68 (FFA), and

affirm the foreclosure judgment.

On August 18, 2005, defendant signed a $273,750 note to EquiFirst

Corporation (EquiFirst) in connection with a residential property in Somerset,

New Jersey. The same day, defendant and his wife, defendant Cheryl Spells,1

executed a mortgage to Mortgage Electronic Registration Systems (MERS) as

nominee for EquiFirst to secure the note. The mortgage was recorded. In

January 2010, that mortgage was assigned by MERS to U.S. Bank, N.A., as

Trustee and recorded. Defendant defaulted on the note on September 1, 2015,

1
She did not appeal the foreclosure judgment.
A-1115-17T1
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and then did not make subsequent payments. Ocwen Loan Servicing, LLC, the

loan servicer, sent defendant a notice of intention to foreclose (NOI) in January

2016. An assignment was recorded on May 31, 2016, which corrected the 2010

assignment to reflect plaintiff, U.S. Bank N. A., as trustee for Residential Asset

Mortgage Products, Inc., Mortgage Asset-Backed Pass-through certificates,

Series 2005-EFC5, as the assignee.

Plaintiff filed a foreclosure complaint on July 13, 2016; defendant filed a

contesting answer with several affirmative defenses, including a claim that

plaintiff lacked standing.

Plaintiff's motion for summary judgment was granted in December 2016.2

Relying on a certification from Albert Gruber, Ocwen's contract management

coordinator, plaintiff claimed the original note was in its possession, the

mortgage was assigned to it and recorded prior to filing the foreclosure

complaint, and defendant defaulted and remained in default on payments.

Defendant argued plaintiff did not have standing to foreclose because Gruber's

certification did not say plaintiff was in possession of the note before it filed the

foreclosure complaint. The court found Gruber's supporting certification

complied with N.J.R.E. 803(c)(6) because it was based on "personal knowledge

2
Defendant opposed the motion and cross-moved for summary judgment.
A-1115-17T1
3
gleaned from . . . personal review of the business records maintained by [the

servicing carrier]." Plaintiff met all requirements to foreclose on the property.

A final judgment of foreclosure was entered on September 27, 2017.

On appeal, defendant seeks reversal asserting plaintiff lacked standing to

foreclose because it did not show it owned or controlled the note prior to when

the complaint was filed, the mortgage assignment was not properly

authenticated, plaintiff was not the holder or owner of the note and Gruber's

supporting certification was not based on personal knowledge. Defendant

claims the NOI did not comply with the FFA because it was sent by Ocwen, not

the lender, and had no supporting evidence. We consider these arguments de

novo in a light most favorable to defendant as the non-moving party. R. 4:46-

2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We find

they have no merit.

"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). Defendant did not dispute he signed the note and

mortgage, defaulted on payment and did not pay the mortgage since September

1, 2015. Gruber's certification established plaintiff had possession of the note

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and, when the foreclosure complaint was filed, was assigned the mortgage,

which was recorded. Combined with the defendant's failure to make the

requisite payments, we agree with the trial court that plaintiff had the right to

enforce the mortgage and note by way of foreclosure.

Defendant's primary arguments center on his claim that plaintiff lacked

standing to foreclose. A party seeking to establish its right to foreclose on a

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 Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010).

In Deutsche Bank Tr. Co. Ams. 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, 422 N.J. Super. at 216. After

February 18, 2016, "[o]nly the established holder of a mortgage shall take action

to foreclose a mortgage." N.J.S.A. 46:18-13(a). Under that statute, "[a] person,

or entity, is the 'established holder of a mortgage' if that person, or entity, is: (1)

the record holder of the mortgage as established by the latest record of

assignment . . . in the records of the county clerk or the register of deeds and

A-1115-17T1
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mortgages . . . ." N.J.S.A. 46:18-13(b)(1). We agree with the trial court that

plaintiff showed the mortgage was assigned to it and recorded prior to filing the

complaint. We are satisfied that assignment of the mortgage before the

foreclosure complaint was filed was sufficient to establish standing.

Gruber's certification complied with N.J.R.E. 803(c)(6). See New

Century Fin. Servs., Inc. v. Oughla, 437 N.J. Super. 299, 326 (App. Div. 2014).

He certified the loan records were business records, he had personal knowledge

of how the records were kept and maintained, he had personally reviewed the

account, and plaintiff remained in possession of the note and mortgage. The

NOI identified the lender and its address, and contained the required information

under the FFA. See U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 480

(2012).

After carefully reviewing the record and the applicable legal principles,

defendant's further arguments are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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