JPMORGAN CHASE BANK, NA VS. SIMON ZAROUR (F-022587-16, MOMOUTH 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NOT FOR PUBLICATION WITHOUT THE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-0951-17T4

JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,

Plaintiff-Respondent,

v.

SIMON ZAROUR,

Defendant-Appellant,

and

LORI ZAROUR, husband and wife,
LYNX ASSET, and FRANKS GMC
TRUCK CENTER,

Defendants.
_________________________________

Submitted September 12, 2019 – Decided September 24, 2019

Before Judges Nugent and Suter.

On appeal from the Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No. F-
022587-16.

Simon Zarour, appellant pro se.
 McCalla Raymer Leibert Pierce, attorneys for
respondent (Brian P. Scibetta, on the brief).

PER CURIAM

Defendant Simon Zarour appeals a September 15, 2017 order that denied

his motion to set aside the final judgment of foreclosure and other orders entered

in the course of the foreclosure action. These include the April 13, 2017 order

that denied his motion to extend discovery; the May 12, 2017 orders that granted

summary judgment to plaintiff, JP Morgan Chase Bank, National Association,

struck defendant's answer and entered default, and denied defendant's cross-

motion for summary judgment; and the August 17, 2017 final judgment of

foreclosure. He claims the trial court abused its discretion by finding plaintiff

had standing to foreclose and by denying his motion to challenge the amount

due and owing. He asserts plaintiff's foreclosure complaint was filed beyond

the applicable statute of limitations. We affirm the trial court's orders, including

its finding that a twenty-year statute of limitations applied.

On September 20, 2007, defendant executed a $5 million promissory note

in favor of Washington Mutual Bank, FA (WaMu). As security for payment of

the note, defendant and his wife Lori Zarour executed a mortgage to WaMu for

a property located in Monmouth Beach. Defendant defaulted on the loan in

August 2008, and has not made payments since then. The note was endorsed in

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blank. The mortgage was assigned to plaintiff by the Federal Deposit Insurance

Corporation (FDIC) as receiver for WaMu on October 19, 2015, and recorded.

See Suser v. Wachovia Mortg., FSB, 433 N.J. Super. 317, 323-24 (App. Div.

2013) (explaining the FDIC became receiver for WaMu pursuant to 12 U.S.C. §

1821(d)).

After a notice of intention to foreclose was sent to defendant, who did not

cure the default, plaintiff filed a foreclosure complaint on August 15, 2016.

Defendant's contesting answer was stricken on May 12, 2017, when the trial

court granted summary judgment to plaintiff and denied defendant's cross-

motion to dismiss the foreclosure complaint. 1 Based on a certification from

plaintiff's representative, the trial court found that "plaintiff possessed the

original note, properly endorsed when the action was commenced and therefore

was the holder thereof." It also determined "plaintiff [had] standing by virtue

of a pre-complaint assignment of the mortgage to the plaintiff." The trial court

found plaintiff showed a "prima facie right to foreclose" because it found that

the elements set forth in Great Falls Bank v. Pardo, 263 N.J. Super. 388 (Ch.

1
This followed the denial on April 13, 2017, of defendant's motion to extend
discovery. Defendant listed that order in his notice of appeal, but did not address
it substantively in his appellate brief. Because of this, its appeal is waived. See
Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014).
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Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994), were satisfied. It

rejected defendant's argument that a six-year statute of limitations applied,

finding that a twenty-year statute was applicable.

Plaintiff filed a motion to enter a final judgment of foreclosure supported

by a certification of the amount due. Plaintiff's authorized representative

certified that the schedules attached to the motion correctly stated "any advances

made or to be made by or on behalf of the plaintiff, that such advances were, in

fact, made." These included substantial amounts advanced for the payment of

real estate taxes and homeowner's insurance premiums. Defendant did not file

opposition to the motion, and a final judgment of foreclosure was entered on

August 17, 2017, for $7,726,406.25.

Shortly after, defendant filed a motion to set aside the final judgment and

fix the amount due. Plaintiff filed opposition. The trial court denied the motion

on September 15, 2017, finding defendant had not satisfied the requirements of

Rule 4:50-1. He did not indicate which subsection of the Rule applied to his

case. The court found plaintiff's "proofs are sufficient" and defendant had not

"offered any evidence to call into question the correctness of the amount of the

final judgment being sought."

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 On appeal, defendant argues the trial court erred because plaintiff's

foreclosure complaint was filed beyond the statute of limitations that applied, it

had no standing to file for foreclosure, and it had not shown the amount due was

accurate.

A decision to vacate a judgment or order lies within the sound discretion

of the trial court, guided by principles of equity. Hous. Auth. of Morristown v.

Little, 135 N.J. 274, 283 (1994). We will reverse the trial court's decision on a

motion to vacate where there is an abuse of discretion. Ibid. An "abuse of

discretion only arises on demonstration of 'manifest error or injustice.'" Hisenaj

v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572,

(2005)). It occurs when the "'decision [was] made without a rational

explanation, inexplicably departed from established policies, or rested on an

impermissible basis.'" United States ex rel. U.S. Dep't of Agric. v. Scurry, 193

N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex Cty.

Prosecutor, 171 N.J. 561, 571 (2002)). However, our review of a trial court's

legal determinations is plenary. D'Agostino v. Maldonado, 216 N.J. 168, 182-

83 (2013) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)). Whether a cause of action is barred by a statute of

limitations is a legal question subject to our de novo review. See Estate of

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Hainthaler v. Zurich Commercial Ins., 387 N.J. Super. 318, 325 (App. Div.

2006) (citations omitted).

Defendant argues the trial court should have applied a six-year statute of

limitations. In Deutsche Bank Tr. Co. v. Weiner, 456 N.J. Super. 546, 548-49

(App. Div. 2018), we recently held the twenty-year statute of limitations under

N.J.S.A. 2A:50-56.1(c)2 applied when a mortgagor has defaulted, and the default

has not been cured. In that foreclosure case, the defendants argued the six-year

statute of limitations under N.J.S.A. 2A:50-56.1(a) "was triggered . . . when their

default triggered the loan's acceleration." Id. at 548. We disagreed with that

interpretation, holding that section (c) "specifically provide[d] a time frame to

be considered upon an uncured default." Id. at 549.

The analysis in Weiner is applicable here. Under N.J.S.A. 2A:50-56.1

there are three possible statutes of limitations for a residential mortgage, the

earliest of which is to be applied:

• Six years from "the date fixed for the making of the
last payment or the maturity date set forth in the
mortgage or the note," N.J.S.A. 2A:50-56.1(a);

• Thirty-six years from the date the mortgage was
recorded or, if not recorded, from the date of execution,
N.J.S.A. 2A:50-56.1(b); and

2
This section was amended effective April 29, 2019 to provide a six-year statute
of limitations. See L. 2019, c. 67, §1.
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 • Twenty years from the date of a default that "has not
been cured," N.J.S.A. 2A:50-56.1(c).

[Weiner, 456 N.J. Super. at 547.]

N.J.S.A. 2A:50-56.1(a)'s reference to "the maturity date" means the

maturity date set forth in the note or mortgage. In this case, that date is October

1, 2047. Six years from that date is the year 2053. The date derived from

subsection "b" also is substantially in the future. N.J.S.A. 2A:50-56.1(c) sets

forth the earliest of the statute of limitations. In this case, twenty-years from

the default date of August 1, 2008 is 2028. Plaintiff's complaint, filed in 2016,

was well within this statute of limitations.

Defendant's argument is without merit that N.J.S.A. 2A:50-56.1 should

not apply because this was not a residential mortgage. In the mortgage

document that defendant signed, he represented that as the borrower, he would

occupy the property as his principal residence at least for a year unless the lender

otherwise agreed in writing. The form used for the mortgage was for a "single

family." His argument on this issue simply was not supported by the loan

documents.

Defendant is incorrect that the six-year statute of limitations in N.J.S.A.

12A:3-118(a) applied. Under that statute, "an action to enforce the obligation

of a party to pay a note payable at a definite time must be commenced within

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six years after the due date or dates stated in the note or, if a due date is

accelerated, within six years after the accelerated due date." N.J.S.A. 12A:3-

118(a). Here, plaintiff was not enforcing the note; it was foreclosing on the

mortgage, making N.J.S.A. 12A:3-118 inapplicable.

Defendant argues the court abused its discretion in finding plaintiff had

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 also 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.

We are satisfied the trial court did not abuse its discretion in concluding

plaintiff had standing to foreclose. Plaintiff's representative certified that it was

in possession of the note prior to filing the foreclosure complaint , and that the

mortgage was assigned to plaintiff in 2015. We agree with the trial court that

these proofs satisfied Angeles' requirements. There was no indication from the

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record the court made any credibility decision; defendant did not refute

plaintiff's proofs.

Defendant's argument that the court abused its discretion by determining

the amount due is not supported. Defendant did not challenge the amount due

until after the final judgment was entered, even though objections had to be

made within ten days. See Rule 4:64-1(d)(3)-(4). Plaintiff's authorized

representative certified that the supporting certifications were correct and that

the advances set forth in the schedules were made. These showed that

substantial amounts were advanced for real estate taxes and homeowner's

insurance premiums. Defendant did not argue that he paid the taxes or

homeowners insurance, nor did he show there was a tax lien or cancelled

insurance policy. He did not show any error with the amount plaintiff claimed

was due.

Defendant's remaining arguments 3 are without sufficient merit to warrant

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

3
Defendant raised an issue in his reply brief that he filed for bankruptcy in
September 2015 and that the assignment violated the automatic stay. It does not
appear defendant raised this issue before the trial court. We need not consider
defendant's arguments not raised in the trial court. Selective Ins. Co. of Am. v.
Rothman, 208 N.J. 580, 586 (2012); Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973).
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Affirmed.

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