PNC BANK, N.A. VS. ERIC G. HUTTON (F-058972-09, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-1456-16T2

PNC BANK, N.A.,

Plaintiff-Respondent,

v.

ERIC G. HUTTON,

Defendant-Appellant,

and

HOUSEHOLD FINANCE
CORPORATION, III,

Defendant.
_________________________

Submitted October 31, 2018 – Decided November 16, 2018

Before Judges Koblitz and Mayer.

On appeal from Superior Court of New Jersey,
Chancery Division, Burlington County, Docket No.
F-058972-09.

Eric G. Hutton, appellant pro se.
 Ballard Spahr, LLP, attorneys for respondent (William
J. DeSantis, on the brief).

PER CURIAM

Defendant Eric G. Hutton appeals from three separate orders: a December

30, 2014 order granting summary judgment in favor of plaintiff PNC Bank,

N.A., an April 28, 2015 order denying reconsideration,1 and a September 2, 2016

order allowing the filing of an amended complaint. We affirm.

The facts relevant to this matter are straightforward. In 2003, defendant

borrowed $104,600 from the Flagship Mortgage Corporation (Flagship) to buy

a home in Burlington County. Defendant executed a note and mortgage to

secure the loan. Flagship gave a limited power of attorney to National City

Mortgage Company (NCMC) to execute assignments and endorse notes on

Flagship's behalf. In 2005, Flagship assigned defendant's mortgage to NCMC,

and NCMC recorded the assignment on July 27, 2005. In December 2008,

NCMC and defendant entered into a loan modification agreement, with an

effective date of January 1, 2009.

1
Defendant included this order in his notice of appeal. However, he failed to
brief the denial of his reconsideration motion. On appeal, the failure to brief an
issue constitutes a waiver of that issue. See Pressler & Verniero, Current N.J.
Court Rules, cmt. 5 on R. 2:6-2 (2019).
A-1456-16T2
2
 The parent companies of PNC Bank, N.A. and NCMC merged. As a

result, on November 6, 2009, PNC Bank, N.A. merged with National City Bank.

Defendant defaulted on his mortgage obligation on June 1, 2009. Plaintiff

filed a foreclosure complaint on November 9, 2009.

The procedural history in this matter is less straightforward. In March

2010, defendant answered the complaint. In his answer, defendant did not deny

borrowing the money, executing the note and mortgage, or defaulting on the

loan.

Plaintiff filed a motion for summary judgment, which was granted on

November 29, 2010. Defendant moved to vacate that order in February 2011.

On March 18, 2011, the court vacated the summary judgment order because

plaintiff "could not prove [NCMC]'s employee was authorized to assign the

mortgage." Thereafter, the parties were permitted to engage in discovery on the

issue of plaintiff's standing to foreclose. Defendant propounded interrogatories,

and plaintiff responded.

On October 16, 2014, plaintiff renewed its motion for summary judgment.

In the refiled motion, plaintiff provided the assignment of mortgage, the power

of attorney, various business records related to the loan and mortgage

documents, and proof that NCMC merged with plaintiff. Defendant opposed

A-1456-16T2
3
the motion, arguing plaintiff failed to respond to his discovery demands, and the

standing issue remained unresolved. Defendant also filed a cross-motion,

seeking to dismiss plaintiff's complaint for failure to provide discovery.

On December 30, 2014, the judge granted plaintiff's motion for summary

judgment, finding "the unrebutted proofs are that [NCMC]'s employee had the

authority to assign the mortgage [on behalf of Flagship] as indicated through the

limited power of attorney." The judge explained defendant "now has the

requested proofs, including the limited power of attorney," which "resolve[d]

the issue of standing." The judge also denied defendant's cross-motion because

defendant acknowledged plaintiff provided discovery responses in November

2011. Defendant filed a motion for reconsideration, which was denied.

On February 18, 2016, plaintiff filed a motion seeking to substitute PNC

Bank, N.A. and to amend the complaint to include the loan modification

agreement signed by defendant. Defendant opposed the motion. However, he

misfiled his opposition with the Office of Foreclosure instead of the Burlington

County Clerk's Office. The Office of Foreclosure instructed defendant to file

the opposition with the Burlington County Clerk's Office within ten days.

Defendant then submitted opposition to the appropriate office; however,

defendant's submission lacked the required signature, and was returned with the

A-1456-16T2
4
stamp "[r]eceived but not [f]iled." Defendant attempted to correct the

deficiency, but sent the corrected paperwork to the Office of Foreclosure rather

than the Burlington County Clerk's Office. As a result, plaintiff's motion was

granted as unopposed.

Plaintiff filed an amended complaint on March 29, 2016. Default was

entered on May 12, 2016, and plaintiff applied for a final judgment of

foreclosure.2

In July 2016, defendant filed a motion to vacate the order permitting

plaintiff to file an amended complaint. Plaintiff opposed defendant's motion,

and the court heard argument on September 2, 2016.

The judge denied defendant's motion regarding the amended complaint.

The judge concluded the Office of Foreclosure properly allowed the filing of an

amended complaint because defendant failed to follow its express instructions

regarding where, when, and how to file his opposition papers. Despite

defendant's failure to properly file opposition to the motion to amend, the judge

considered defendant's requested relief on the merits. The judge found the

amended pleading included details of the mortgage assignment and loan

modification agreement omitted from the original complaint. The judge

2
A final judgment of foreclosure was entered on October 28, 2016.
A-1456-16T2
5
determined the amended complaint also reflected plaintiff as successor by

merger to National City Bank, which was the successor by merger to NCMC.

The judge rejected defendant's claim that the amended complaint was an

improper attempt to circumvent relevant statute of limitations. The judge

concluded the amended complaint was filed within the applicable period of

limitations governing foreclosure actions. See N.J.S.A. 2A:50-56. Pursuant to

the statute, the judge determined plaintiff had until May 1, 2029 to file a

foreclosure complaint. In addition, the judge found the amendments to the

complaint were "necessary to reflect the proper [p]laintiff in interest and details

of the previously omitted loan modification agreement[,]" and therefore the

amended pleading was "not futile."

On appeal, defendant contends the second summary judgment order,

entered on December 30, 2014, was erroneous because plaintiff lacked standing

to file the foreclosure action. Defendant also claims the September 2, 2016

order, allowing the filing of an amended complaint, was in error.

We first address defendant's argument that plaintiff failed to prove

standing to file the foreclosure complaint and seek judicial relief, including

summary judgment. We review a trial court's grant of summary judgment under

the same standard as the motion court. Globe Motor Co. v. Igdalev, 225 N.J.

A-1456-16T2
6
469, 479 (2016). A trial court may grant a motion for summary judgment "if the

pleadings, depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to an y

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). When determining whether a genuine

issue of material fact exists, a motion court must consider whether competent

evidence presented, "viewed in the light most favorable to the non-moving

party[,]" is sufficient to allow 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, 523 (1995).

To obtain relief in a mortgage foreclosure action, the mortgagee (or its

successor in interest) must establish the following: (1) the mortgage and loan

documents are valid; (2) the mortgage loan is in default; and (3) it has the

contractual right to foreclose in light of the default. See, e.g., Great Falls Bank

v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542

(App. Div. 1994). The mortgagee has the right to insist upon strict observance

of the obligations owed to it, including timely payment. Kaminski v. London

Pub, Inc., 123 N.J. Super. 112, 116 (App. Div. 1973).

A-1456-16T2
7
 Here, it is undisputed that defendant executed the note and mortgage, the

mortgage and assignments were recorded, defendant defaulted on the note, and

defendant has not paid on the loan since June 2009. The dispute is whether

plaintiff has standing to pursue foreclosure.

In general, three parties have standing to enforce negotiable instruments

such as mortgages and promissory notes: (1) the holder of the instrument; (2) a

nonholder in possession of the instrument who has the rights of a holder; and (3)

a person not in possession of the instrument who is entitled to enforce the

instrument. See N.J.S.A. 12A:3-301. We have held that "either possession of

the note or an assignment of the mortgage that predate[s] the original complaint

confer[s] standing." Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super.

315, 318 (App. Div. 2012) (citing Deutsche Bank Nat'l Trust Co. Americas v.

Mitchell, 422 N.J. Super. 214, 216, 225 (App. Div. 2011)).

Plaintiff certified it had possession of the original note prior to filing the

foreclosure complaint and produced the original note. As holder of the note,

under both the statutory and case law, plaintiff is entitled to enforce the note and

seek foreclosure.

As part of the renewed summary judgment motion, plaintiff provided a

certification from an employee who had personal knowledge of plaintiff's

A-1456-16T2
8
business records and retention of those records. See R. 1:6-6. The employee

attested to defendant's execution of the note and mortgage, the limited power of

attorney granted by Flagship to NCMC, and the assignment of the note to

plaintiff. In addition, the employee certified to the truth and accuracy of the

documents supporting the second summary judgment motion, including: the

note, mortgage, power of attorney, assignment, recording documents, merger

documents, delinquency notice, and foreclosure notice. Thus, plaintiff

demonstrated it had the requisite standing to pursue foreclosure.

Having concluded plaintiff had standing to file the foreclosure action, we

turn to defendant's claim that summary judgment was improper. First, defendant

argues he is entitled to dismissal of the foreclosure complaint based on an

administrative dismissal issued by the Office of Foreclosure on October 17,

2014. Rule 4:64-8 requires the plaintiff in a foreclosure case to take action

within twelve months of filing the complaint. If a plaintiff does not take action

within that time period, the Office of Foreclosure issues a written notice advising

the plaintiff to file proof of service, proof of an answer, or certification of

exceptional circumstances within thirty days. Failure to take action will result

in the dismissal of the matter without prejudice.

A-1456-16T2
9
 Here, the administrative dismissal was in error because plaintiff served

defendant with the foreclosure complaint, defendant filed an answer, and

plaintiff filed for summary judgment within a year of the initial filing. The

Office of Foreclosure, recognizing the dismissal notice was issued in error based

on plaintiff's prosecution of the foreclosure matter, properly vacated the

dismissal.

Next, defendant argues summary judgment was improper because the

foreclosure action should have been dismissed based on the doctrine of laches. 3

The doctrine of laches operates as an "affirmative defense that precludes relief

when there is an 'unexplainable and inexcusable delay' in exercising a right,

which results in prejudice to another party." Fox v. Millman, 210 N.J. 401, 417

(2012) (quoting Cnty. of Morris v. Fauver, 153 N.J. 80, 105 (1998)).

Having reviewed the record, we are satisfied the doctrine of laches is

inapplicable. Here, while there was a three-year period of inactivity, the delay

occurred because defendant successfully vacated the original summary

3
We note defendant failed to raise the laches argument before the trial court.
See R. 2:10-2. Although we may decline to consider issues raised for the first
time on appeal, because defendant is self-represented, we address the argument
on the merits. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

A-1456-16T2
10
judgment order, and the judge directed the parties to exchange discovery on the

standing issue.

Defendant propounded discovery, and plaintiff responded. Upon the

expiration of the discovery period, plaintiff renewed its motion for summary

judgment. Defendant's failure to seek more specific discovery if he deemed

plaintiff's responses inadequate to resolve the standing issue does not render any

delay in plaintiff's exercise of its rights "unexplained" or "inexcusable." In fact,

defendant benefitted from the delay because he continued to live in his home

without paying the mortgage, taxes, or homeowners' insurance for more than

three years. Defendant has neither argued nor shown any prejudice as a result

of the period of inactivity to invoke the doctrine of laches.

We next consider defendant's claim the court erred in allowing the filing

of an amended complaint. Defendant argues PNC Bank, N.A. should have been

designated as the original plaintiff, and substitution was improper under Rule

1:34-6(4).

Motions to amend pleadings are liberally granted, and the determination

is left to the discretion of the trial court. Bldg. Materials Corp. of Am. v. Allstate

Ins. Co., 424 N.J. Super. 448, 484 (App. Div. 2012); R. 4:9-1. Courts consider

two factors regarding a motion to amend: prejudice to the non-moving party and

A-1456-16T2
11
the usefulness of the proposed amendment. Notte v. Merchs. Mut. Ins. Co., 185

N.J. 490, 501 (2006).

The Office of Foreclosure permits substitution of plaintiffs and

amendment of complaints in accordance with Rule 1:34-6(7). Defendant argues

he was prejudiced by the filing of the amended complaint because he was unable

to assert a statute of limitations defense. In reviewing the order allowing the

amended complaint, the judge held plaintiff's amended complaint was filed

within the applicable statute of limitations. See N.J.S.A. 2A:50-56.1.

Therefore, defendant was not prejudiced by the amended pleading. The judge

also determined the substitution of plaintiff was necessary to reflect the proper

party in interest and the loan modification agreement added necessary details in

support of the foreclosure action. See R. 4:64-1(a) and (b).

Based on these facts, the Office of Foreclosure did not err in allowing

plaintiff to file the amended complaint.

Affirmed.

A-1456-16T2
12