NOT FOR PUBLICATION WITHOUT THE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-0364-16T4
WELLS FARGO BANK, N.A.,
Plaintiff-Respondent,
v.
CECILLE JARRETT, individually
and as executrix of the estate
of ADVIRA WALLACE, DECEASED,
Defendant-Appellant,
and
MR. JARRETT, husband of Cecille
Jarrett; MIDDLESEX COUNTY COLLEGE
OF NURSING; STATE OF NEW JERSEY and
UNITED STATES OF AMERICA,
Defendants.
___________________________________
Submitted October 30, 2017 – Decided June 25, 2018
Before Judges Ostrer and Rose.
On appeal from Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket
No. F-016118-15.
Cecille Jarrett, appellant pro se.
Reed Smith LLP, attorneys for respondent
(Henry F. Reichner, of counsel and on the
brief; Brian P. Matthews, on the brief).
PER CURIAM
In this mortgage foreclosure appeal, defendant Cecille
Jarrett appeals from the trial court's order granting summary
judgment to plaintiff Wells Fargo Bank, N.A. As we discern no
genuine issues of material fact regarding Wells Fargo's right to
foreclose, we affirm.
On February 5, 2002, Advira Wallace borrowed $144,000 from
Weichert Financial Services (WFS) to purchase a residential
property in Piscataway. The thirty-year note was secured by a
mortgage on the property in favor of Mortgage Electronic
Registration Systems, Inc., as WFS's nominee. Wallace died in
2008, and her daughter Jarrett took title. On April 27, 2012, WFS
assigned the mortgage to Wells Fargo. The assignment was recorded
five days later.
Jarrett presents no competent evidence to dispute Wells
Fargo's contention, based on its payment records, that the loan
has been in default since January 1, 2013. On April 18, 2013,
Wells Fargo served its notice of intention to foreclose, asserting
a total net delinquency of $5,261.79. After Jarrett sought
bankruptcy protection, Wells Fargo obtained an order vacating the
automatic stay. Shortly thereafter, Wells Fargo filed its
foreclosure complaint. The Vice President of loan documentation
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certified that before filing the foreclosure complaint, Wells
Fargo possessed the note, which was indorsed in blank.
The following year, Wells Fargo filed its summary judgment
motion. Jarrett opposed the motion and cross-moved to dismiss the
complaint. On May 2, 2016, the trial court granted Wells Fargo's
motion, and denied defendant's cross-motion. In a written
statement of reasons, Judge Frank M. Ciuffani noted that Wells
Fargo, as a holder of the note, possessed standing to enforce the
note. This was evidenced by the vice president of loan
documentation's certification. This appeal followed.
We review the trial court's grant of summary judgment de
novo, applying the same standard that governs the trial court.
Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010).
"[T]he appellate court should first decide whether there was a
genuine issue of material fact, and if none exists, then decide
whether the trial court's ruling on the law was correct." Ibid.
We extend no special deference to the trial court's legal
determinations. Ibid. However, we deferentially review the trial
court's evidentiary decisions. Estate of Hanges v. Metro. Prop.
& Cas. Ins. Co., 202 N.J. 369, 382 (2010); MacKinnon v. MacKinnon,
191 N.J. 240, 253-54 (2007).
"The only material issues in a foreclosure proceeding are the
validity of the mortgage, the amount of the indebtedness, and the
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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). Jarrett presents no
competent evidence to contest the first two elements. Rather, she
argues Wells Fargo lacked standing. She contends that is so
because: Fannie Mae, not Wells Fargo, owns the mortgage note;
Wells Fargo presented insufficient proof it possessed the note
when it filed its complaint; and the assignment of the mortgage
was invalid. We reject these arguments.
It is by now well settled that generally "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). Here,
Wells Fargo met both prerequisites.1
Through an appropriate certification of counsel, Wells Fargo
presented to the court a true and accurate copy of the filed
assignment of the mortgage by MERS, as WFS's nominee, to Wells
1
We recognize that the court in Capital One, N.A. v. Peck, ___
N.J. Super. ___, ___ (App. Div. 2018) (slip op. at 7), held in a
case in which the Federal Home Loan Mortgage Corporation, also
known as "Freddie Mac," owned the loan, that possession of the
note and a valid assignment must precede a complaint. The court
still affirmed the foreclosure where the servicer did not possess
the note, on equitable grounds. Id. at 8-9. However, as we
discuss, Wells Fargo both possessed the note and was an assignee
of the mortgage.
4 A-0364-16T4
Fargo. Jarrett contends the assignment is invalid "because Fannie
Mae is still the owner, holder, and controller of the mortgage
instruments." We need not reach Wells Fargo's argument that
Jarrett lacks standing to challenge the assignment's validity.2
At most, Jarrett presents evidence – in the form of a "lookup" on
Fannie Mae's website – that Fannie Mae owned the loan, although
the website also stated that the servicer may physically possess
the mortgage note. The website printout says nothing about control
of the mortgage. Thus, Jarrett's evidence falls short of
establishing that MERS, on behalf of WFS, lacked authority to
assign the mortgage, or that the assignment was otherwise invalid.
Furthermore, according to an admissible certification of
Wells Fargo's vice president for loan documentation, Wells Fargo
possessed the note before it filed its complaint. That provides
an alternative basis for Wells Fargo's standing. Deutsche Bank
Trust Co. Ams., 428 N.J. Super. at 318. Jarrett's challenge to
the certification itself is meritless. Furthermore, even if Fannie
Mae owned the loan, that did not deprive Wells Fargo of standing
to foreclose. "As a general proposition, a party seeking to
2
Therefore, we need not address whether a third party has standing
to challenge a void assignment, even if he or she lacks standing
to challenge a voidable assignment. See, e.g. Yvanova v. New
Century Mortg. Corp., 365 P.3d 845, 848 (Cal. 2016); Mruk v. Mortg.
Elec. Registration Sys., 82 A.3d 527, 536-37 (R.I. 2013).
5 A-0364-16T4
foreclose a mortgage must own or control the underlying debt."
Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214,
222 (App. Div. 2011) (emphasis added); See also N.J.S.A. 12A:3-
301 (stating that a person may enforce a note if the person is a
holder, a non-holder in possession with rights of the holder, or
it is entitled to enforce pursuant to N.J.S.A. 12A:3-309, or
N.J.S.A. 12A:3-418(d), even if not in possession of the
instrument).
To the extent not addressed, defendant's remaining arguments
lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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