NOT FOR PUBLICATION WITHOUT THE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-2264-16T2
WELLS FARGO BANK, N.A., as
Trustee for Option One
Mortgage Loan Trust 2007-3,
Asset-Backed Certificates,
Series 2007-3,
Plaintiff-Respondent,
v.
DARREN JAMES and ADRIENNE
JAMES,
Defendants-Appellants,
and
JERSEY SHORE UNIVERSITY
MEDICAL CENTER,
Defendant.
Argued May 30, 2018 — Decided June 27, 2018
Before Judges Koblitz and Manahan.
On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-026877-12.
Darren James, appellant, argued the cause pro
se.
Brian J. Slipakoff argued the cause for
respondent (Duane Morris LLP, attorneys; Brett
L. Messinger, Brian J. Slipakoff, and Kelly
K. Huff, of counsel and on the brief).
PER CURIAM
In this residential foreclosure case, defendants Darren and
Adrienne James appeal from an October 23, 2015 order granting
plaintiff Wells Fargo's summary judgment motion and a December 16,
2016 final judgment. We affirm.
Wells Fargo initially brought a foreclosure complaint on
November 12, 2012, as a result of defendants' 2011 default on
their mortgage payments. The defendants answered and
counterclaimed, arguing Wells Fargo did not have standing to bring
the complaint because they did not possess the note at the time
the complaint was filed, committed fraud in violation of the New
Jersey Home Ownership Security Act of 2002, N.J.S.A. 46:10B-22 to
-68, and violated the New Jersey Consumer Fraud Act, N.J.S.A.
56:8-1 to -210.
After initially denying summary judgment without prejudice
on April 19, 2013, due to Wells Fargo's failure to provide an
affidavit attesting that it had possession of the note prior to
filing the complaint, the trial court eventually granted summary
judgment in favor of Wells Fargo, striking defendants'
counterclaims and the contesting answer. On April 2, 2015, the
2 A-2264-16T2
foreclosure action was administratively dismissed without
prejudice for lack of prosecution under Rule 4:64-8. The trial
court reinstated the action on Wells Fargo's motion and allowed
Wells Fargo to amend the complaint, which defendants opposed.
Wells Fargo moved once again for summary judgment, which the
trial court granted, stating that the trial court's previous grant
of summary judgment disposed of defendants' defenses and that
defendants' opposition consisted of those same previous defenses,
and were thereby barred by res judicata and collateral estoppel.
After various other unsuccessful applications by defendants, final
judgment was entered on December 16, 2016, and defendants'
subsequent motion to vacate judgment was denied.
Defendants submitted a pro se appellate brief. Essentially,
defendants make the same arguments that they have made since the
beginning of the action, namely, that Wells Fargo lacked standing
to bring the action and that Wells Fargo violated several laws,
including the New Jersey Home Ownership Security Act of 2002
(HOSA), N.J.S.A. 46:10B-22 to -68, and the New Jersey Consumer
Fraud Act (CFA), N.J.S.A. 56:8-1 to -210. Defendants also argue
the trial court erred in hearing Wells Fargo's first motion for
summary judgment because it was seventeen days before trial,
contrary to Rule 4:46, and erred in allowing Wells Fargo to amend
the complaint in violation of Rule 4:9-1. Defendants also accuse
3 A-2264-16T2
the trial court judge of bias in favor of Wells Fargo and
complicity in Wells Fargo's allegedly fraudulent conduct.
Defendants further allege fraud in connection with a prior
mortgage. Defendants executed the subject mortgage and note on
January 5, 2007, in the amount of $350,200. Defendants' prior
mortgage was paid off with this refinancing. Wells Fargo possessed
the note since April 12, 2007. Wells Fargo was assigned the
mortgage on October 27, 2008. A "Corrective Assignment of
Mortgage" to Wells Fargo was recorded on September 18, 2012.
On the record at defendants' motion to amend their answer,
now presided over by a different judge, the trial court found
defendants' motion to amend was untimely because it was filed two
months after the close of discovery and the motion provided no
legal basis to allow defendants to amend their answer. As to
Wells Fargo's summary judgment motion, the court found defendants
executed the note and mortgage and subsequently defaulted on the
loan. The court also found Wells Fargo was validly assigned the
mortgage and had physical possession of the note prior to filing
the foreclosure complaint. The court concluded that defendants'
affirmative defenses and counterclaims were unsupported by fact
or law, and granted Wells Fargo's motion for summary judgment.
Our review of a ruling on summary judgment is de novo,
applying the same legal standard as the trial court. Conley v.
4 A-2264-16T2
Guerrero, 228 N.J. 339, 346 (2017). We consider, as the trial
judge did, "whether the evidence presents a sufficient
disagreement to require submission to a [factfinder] or whether
it is so one-sided that one party must prevail as a matter of
law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, PA, 189 N.J.
436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 536 (1995)). Summary judgment must be granted
"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 any material fact challenged
and that the moving party is entitled to a judgment or order as a
matter of law." Templo Fuente De Vida Corp. v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (quoting R. 4:46-
2(c)).
"To defeat a motion for summary judgment, the opponent must
'come forward with evidence' that creates a genuine issue of
material fact." Cortez v. Gindhart, 435 N.J. Super. 589, 605
(App. Div. 2014) (quoting Horizon Blue Cross Blue Shield of N.J.
v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "[C]onclusory
and self-serving assertions by one of the parties are insufficient
to overcome the motion." Puder v. Buechel, 183 N.J. 428, 440-41
(2005).
5 A-2264-16T2
"As a general proposition, a party seeking to foreclose a
mortgage must own or control the underlying debt" to demonstrate
it has standing to bring the foreclosure action. Deutsche Bank
Nat'l Trust 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)). To show ownership or control, the
plaintiff must establish there was a valid assignment of the
mortgage or possession of the original note that pre-dated the
complaint. Ibid. "[E]ither possession of the note or an
assignment of the mortgage that predated the original complaint
confer[s] standing." Deutsche Bank Trust Co. Ams. v. Angeles, 428
N.J. Super. 315, 318 (App. Div. 2012) (emphasis added).
Defendants claim Wells Fargo did not possess the note at the
time of the filing of the foreclosure complaint because the
previous note holder, United Community Bank, allegedly committed
a fraud in that it claimed to have lost the note but really had
previously assigned the note to a different lender. Defendants,
however, fail to adequately explain how this lost note affidavit
affected the subsequent note that defendants executed when they
refinanced their home, which created the underlying debt subject
to this action.
Wells Fargo produced a certified copy of the original note
and certified that it had been in possession of the note since
6 A-2264-16T2
April 12, 2007. Additionally, Wells Fargo provided evidence of a
valid assignment of the mortgage that occurred prior to the filing
of the foreclosure complaint.
Defendants failed to introduce any competent evidence to
rebut Wells Fargo's assertions and proofs. They instead rely on
the first denial of summary judgment, for failure to produce an
affidavit of assignment, to argue the trial court already ruled
defendant did not have standing and accuse the second judge of
bias in favor of Wells Fargo. The first judge, however, did not
rule that Wells Fargo did not have standing, but rather simply
dismissed its initial summary judgment motion for failing to
provide a certification within the ordered timeframe.
Because Wells Fargo was in possession of the original note
and had a valid assignment of the mortgage, it had standing to
bring the foreclosure complaint. Angeles, 428 N.J. Super. at 318.
Defendants' claims that Wells Fargo violated HOSA and the CFA are
completely unsupported.
Defendants also argue it was error for the trial court to
hear Wells Fargo's second motion for summary judgment because the
return date for the motion was less than thirty days before the
trial date scheduled by the previous judge presiding over the
case. Wells Fargo filed the motion for summary judgment on
7 A-2264-16T2
September 27, 2013, returnable on October 25, 2013, and according
to defendants, trial was scheduled for November 11, 2013.1
Rule 4:46-1 states in pertinent part that "motions for summary
judgment shall be returnable no later than 30 days before the
scheduled trial date, unless the court otherwise orders for good
cause shown." The "'unless otherwise ordered' language
contemplates scheduling by the court, prior to trial, either sua
sponte or upon a showing of good cause by the movant." Seoung Ouk
Cho v. Trinitas Reg'l Med. Ctr., 443 N.J. Super. 461, 471 (App.
Div. 2015). We have refused to hold "that the summary judgment
rules establish rigid requirements that must be met in every case
for due process demands to be satisfied." Id. at 473. The court
exercised its sound discretion in scheduling argument on Wells
Fargo's summary judgment motion.
Defendants' remaining arguments are without sufficient merit
to require discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
1
The record does not provide the scheduled trial date. We accept
the date provided by defendants.
8 A-2264-16T2
WELLS FARGO BANK, N.A. VS. DARREN JAMES (F-026877-12, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion