U.S. BANK NATIONAL ASSOCIATION, ETC. VS. EDWARD A. PROVENCHER (F-044161-14, MONMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-3747-16T3

U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR J.P. MORGAN
MORTGAGE ACQUISITION TRUST
2006-CH2 ASSET BACKED
PASS-THROUGH CERTIFICATES, SERIES
2006-CH2,

Plaintiff-Respondent,

v.

EDWARD A. PROVENCHER, his/her heirs,
devisees, and personal representatives,
and his, her, their or any of their
successors in right, title and interest,

Defendant-Appellant,

and

MRS. EDWARD A. PROVENCHER, wife of
Edward A. Provencher; NICOLE L. PROVENCHER,
his/her heirs, devisees, and personal
representatives, and his, her, their or
any of their successors in right, title
and interest; MR. PROVENCHER, husband of
Nicole L. Provencher; CHASE BANK U.S., NA
and STATE OF NEW JERSEY,

Defendants.

Submitted July 9, 2018 – Decided July 23, 2018
 Before Judges Carroll and Rose.

On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-044161-14.

Edward A. Provencher, appellant pro se.

Parker Ibrahim & Berg, LLP, attorneys for
respondent (Charles W. Miller, III, Ben Z.
Raindorf and Robert D. Bailey, on the brief).

PER CURIAM

This residential mortgage foreclosure case has its genesis

in a June 20, 2006 loan from Chase Bank USA (Chase) to defendant

Edward Provencher. The loan is evidenced by a note in the amount

of $212,000 executed and delivered by defendant to Chase, and

secured by a mortgage on property located in Freehold. The

mortgage was duly recorded on July 20, 2006, in the Office of the

Monmouth County Clerk.

On July 6, 2012, Chase assigned the mortgage to plaintiff

U.S. Bank National Association, as Trustee for J.P. Morgan Mortgage

Acquisition Trust 2006-CH2 Asset Backed Pass-Through Certificates,

Series 2006-CH2. The Monmouth County Clerk recorded the assignment

on July 25, 2012.

Pursuant to the note and mortgage, defendant agreed to make

principal and interest payments on the loan on the first day of

each month from August 1, 2006, through July 1, 2036. Under the

terms of the note, a late charge of $29, or six percent of the

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overdue payment, whichever is greater, would be assessed if the

lender had "not received the full amount of any monthly payment

within [ten] days of the payment due date . . . ."

Defendant defaulted under the note and mortgage by failing

to make the May 1, 2011 monthly payment. On October 21, 2014,

plaintiff filed a foreclosure complaint against defendant, who

filed a contesting answer on December 8, 2014. His answer did not

specifically dispute the existence of the debt, the authenticity

of the note and mortgage, and his default in making payments as

required by the note. The answer merely denied generally all the

allegations of the foreclosure complaint and put plaintiff to its

proofs. It also asserted several affirmative defenses, including

plaintiff's alleged lack of standing to bring the foreclosure

action.

On May 15, 2015, plaintiff filed a motion for summary

judgment. Plaintiff supported its motion with a certification

from Karter Nelson, a document control officer employed by

plaintiff's mortgage servicer. Nelson certified that he had

personally reviewed the loan documents, copies of which he attached

to his certification. Nelson further attested that plaintiff had

acquired the loan, including the note and mortgage, prior to the

filing of the foreclosure complaint.

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 Defendant opposed the motion and filed a cross-motion to

amend his answer to assert a counterclaim against plaintiff. The

entirety of defendant's accompanying certification stated:

"Subject property is my primary residence" and "Discovery is not

completed." Annexed to defendant's certification, among other

documents, was a proposed amended answer and counterclaim, which

alleged plaintiff violated the New Jersey Home Ownership Security

Act (HOSA), N.J.S.A. 46:10B-22 to -35, with respect to late fees

charged on the mortgage loan.

By orders dated June 26, 2015, the trial court denied

defendant's motion and granted plaintiff's motion for summary

judgment. In an oral opinion, the court first determined that

Nelson's certification was sufficient to establish that

"[p]laintiff is the holder of the note and [d]efendant has provided

no contrary evidence to show that another entity holds the loan."

The court also noted the recorded assignment of mortgage that

predated the foreclosure complaint and concluded plaintiff had

standing.

The court also found defendant's arguments with respect to

the alleged HOSA violation "really . . . difficult to understand."

Ultimately, the court determined the allegation that "[p]laintiff

charged late fees in contravention of N.J.S.A. 46:10[B]-25 would

be a claim for monetary damages and is time-barred." The judge

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elaborated: "Defendant executed the note [and] mortgage on June

20, 2006. [He] had six years to raise a defense; that expired on

June 20, 2012. Again, fees would not be germane to this action

and a dispute over the amount due is appropriate when the

[p]laintiff seeks final judgment." Consequently, the court struck

defendant's answer and returned the matter to the Foreclosure Unit

of the Superior Court to proceed as an uncontested case.

On October 14, 2016, the trial court granted plaintiff's

motion to vacate dismissal for lack of prosecution pursuant to

Rule 4:64-8 and reinstated the case. On February 3, 2017, the

court denied defendant's objection to plaintiff's calculation of

the amount due. A final judgment was ultimately entered in favor

of plaintiff on March 22, 2017, in the sum of $312,936.10.

Defendant now appeals from the orders entered on June 26,

2015, October 14, 2016, February 3, 2017, and from the March 22,

2017 final judgment. Defendant essentially argues that: (1) the

Nelson certification and supporting documents were inadequate to

establish plaintiff's standing; and (2) the trial court erred in

concluding defendant's HOSA claim with respect to late fees was

not germane to the foreclosure action, thus denying defendant the

opportunity to litigate the claim.

We review a grant of summary judgment de novo, observing the

same standard as the trial court. Townsend v. Pierre, 221 N.J.

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36, 59 (2015). Summary judgment should be granted only if the

record demonstrates 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 consider "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." Davis v. Brickman Landscaping,

Ltd., 219 N.J. 395, 406 (2014) (quoting Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995)). If no genuine issue

of material fact exists, the inquiry then turns to "whether the

trial court correctly interpreted the law." DepoLink Ct. Reporting

& Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (citations omitted).

Based on our review of the record and applicable law, we

conclude that summary judgment was properly granted in favor of

plaintiff. A lender's right to foreclose is an equitable right

inherent in a mortgage, triggered by a borrower's failure to comply

with the terms and conditions of the associated loan. S.D. Walker,

Inc. v. Brigantine Beach Hotel Corp., 44 N.J. Super. 193, 202 (Ch.

Div. 1957). To obtain relief in a mortgage foreclosure action,

the mortgagee (or its successor in interest) must establish that:

(1) the mortgage and loan documents are valid; (2) the mortgage

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loan is in default; and (3) it has a 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); Somerset Trust Co. v. Sternberg, 238 N.J.

Super. 279, 283-84 (Ch. Div. 1989). The mortgagee has the right

to insist upon strict observance of the obligations that are

contractually owed to it, including timely payment. Kaminski v.

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

Often, as here, a disputed issue in mortgage foreclosure

actions is whether the plaintiff has established standing to bring

the complaint. In general, the Uniform Commercial Code establishes

three alternative categories of parties who have standing to

enforce negotiable instruments, including promissory notes: (1)

"the holder of the instrument"; (2) "a nonholder in possession of

the instrument who has the rights of the holder"; and (3) "a person

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

instrument pursuant to [N.J.S.A.] 12A:3-309 or subsection d. of

[N.J.S.A.] 12A:3-418." See N.J.S.A. 12A:3-301.

In Deutsche Bank Trust Co. v. Angeles, 428 N.J. Super. 315,

318 (App. Div. 2012), we construed these principles to confer

standing on a mortgage foreclosure plaintiff who establishes

"either possession of the note or an assignment of the mortgage

that predated the original complaint." Here, the motion judge

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fairly and reasonably determined that the record sufficed to meet

either of these two predicates for standing.

First, the unrefuted record reflects that plaintiff was

assigned defendant's mortgage loan before the foreclosure

complaint was filed. The Nelson certification provides a

sufficient evidentiary basis to establish the authenticity of the

business records that reflect the transfer of defendant's loan

from the original lender, Chase, to the present trustee. Further,

the mortgage assignment was recorded and endorsed by the Monmouth

County Clerk. See N.J.R.E. 901 (noting that authentication is

governed by a flexible standard that only requires "evidence

sufficient to support a finding that the matter is what its

proponent claims"). Second, as an alternative basis for standing,

there is sufficient proof in the record to establish that plaintiff

was in possession of the note at the time the lawsuit was filed.

With respect to defendant's HOSA claim, we note that "the

granting of a motion to file an amended [pleading] always rests

in the court's sound discretion." Kernan v. One Wash. Park Urban

Renewal Assocs., 154 N.J. 437, 457 (1998); Fisher v. Yates, 270

N.J. Super. 458, 467 (App. Div. 1994). While motions for leave

to amend pleadings are to be liberally granted, the decision is

best left to the sound discretion of the trial court taking into

consideration the factual situation existing at the time each

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motion is made. Although courts should determine motions for

leave to amend without considering the ultimate merits of the

amendment, "courts are free to refuse leave to amend when the

newly asserted claim is not sustainable as a matter of law." Notte

v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006) (citation

omitted).

On review, the trial judge's determination will not be

disturbed unless it constitutes a "clear abuse of . . .

discretion." Salitan v. Magnus, 28 N.J. 20, 26 (1958); Franklin

Med. Assocs. v. Newark Pub. Schs., 362 N.J. Super. 494, 506 (App.

Div. 2003). This court will reverse a trial court's exercise of

discretion only "if the discretionary act was not premised upon

consideration of all relevant factors, was based upon

consideration of irrelevant or inappropriate factors, or amounts

to a clear error in judgment." Masone v. Levine, 382 N.J. Super.

181, 193 (App. Div. 2005) (citation omitted). Stated differently,

a trial court abuses its discretion where its decision is arbitrary

or capricious, is "made without a rational explanation,

inexplicably depart[s] from established policies, or rest[s] on

an impermissible basis." Ibid. (quoting Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002) (citations omitted)).

Guided by these principles, we conclude the trial court did

not err in denying defendant's motion to amend his answer to assert

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a counterclaim against plaintiff seeking damages for violating

HOSA with respect to the assessment of late fees. As noted, the

trial court found this claim time-barred, a ruling that defendant

does not challenge on appeal. An issue not briefed is deemed

waived. See Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014). See

also, Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R.

2:6-2 (2018).

In any event, even if defendant's HOSA claim is not time-

barred as the motion judge found, we nonetheless find no basis to

grant defendant relief. This is so despite our agreement with

defendant that, in viewing the summary judgment record in the

light most favorable to him, defendant's claim regarding the late

fees assessed by plaintiff pursuant to the terms of the note are

germane to the foreclosure action. See R. 4:64-5. As we noted

in Associates Home Equity Services, Inc. v. Troup, 343 N.J. Super.

254, 272 (App. Div. 2001), the purpose of a foreclosure action is

to determine "not only the right to foreclose, but also the amount

due on the mortgage." (Citation omitted).

Here, defendant's HOSA claim related directly to the amount

due on the mortgage, which the motion judge acknowledged in her

decision on the summary judgment motion and defendant's cross-

motion to amend. The motion judge determined that the dispute

"over the amount due is appropriate when the [p]laintiff seeks

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final judgment." Although the judge denied defendant's motion to

assert a counterclaim alleging a HOSA violation, she did not

preclude him from raising the improper late fee issue when

plaintiff applied for final judgment. Defendant did in fact

challenge the amount due when plaintiff made application for final

judgment. However, he failed to challenge the late fees at that

juncture. Instead, defendant's objection to the amount due focused

on disputed tax payments and his standing argument, which the

trial court correctly rejected. Entry of the final judgment

properly followed.

To the extent that we have not specifically addressed any of

defendant's remaining contentions, we find they lack sufficient

merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

Affirmed.

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