INVESTORS BANK VS. JOSEPH SABURN (F-020444-17, MORRIS 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NOT FOR PUBLICATION WITHOUT THE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-2375-18T1

INVESTORS BANK,

Plaintiff,

v.

JOSEPH SABURN,

Defendant-Appellant,

and

PATRICIA SABURN,
Husband and Wife,

Defendant.
________________________

Submitted January 13, 2020 – Decided March 30, 2020

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey,
Chancery Division, Morris County, Docket No. F-
020444-17.

Joseph Saburn, appellant pro se.
 Fein Such Kahn & Shepard, PC, attorneys for
respondent (Ashleigh Levy Marin and Michael S.
Hanusek, on the brief).

PER CURIAM

Defendant Joseph Saburn appeals from the Chancery Division's order

granting summary judgment to plaintiff Investors Bank and denying defendant's

cross-motion to dismiss plaintiff's complaint; a subsequent order denying

defendant's motion to fix the amount due at "$0.00"; and entry of final judgment

against defendant and Patricia Saburn who was pled as defendant's wife. 1 On

appeal, defendant argues:

POINT I

THE TRIAL COURT ERRED, AND ABUSED ITS
DISCRETION GRANTING PLAINTIFF SUMMARY
JUDGMENT, AND DENYING DEFENDANT
CROSS-MOTION FOR DISMISSAL.

A. DEFAULT.

B. AFFIDAVIT.

POINT 2

THE TRIAL COURT ERRED AND ABUSED ITS
DISCRETION BY NOT STATING ITS FACTUAL
FINDINGS REGARDING THE DEFAULT ISSUE.

1
Patricia Saburn did not appeal.
A-2375-18T1
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Based upon our review of the record in the context of the applicable law, we

affirm.

In a mortgage foreclosure proceeding, the court must determine three

issues: "the validity of the mortgage, the amount of the indebtedness" and

default, and the right of the plaintiff to foreclose on the mortgaged property.

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

N.J. Super. 542 (App. Div. 1994). In his responses to plaintiff's statement of

undisputed facts, defendant admitted to executing a note to repay the loan from

ISB Mortgage Co., LLC in the amount of $1,328,465, and that the loan was

secured by a mortgage on the foreclosed property. Defendant does not challenge

plaintiff's standing. He argues only that the court erred in granting plaintiff's

summary judgment motion because "[p]laintiff did not attach a payment history

or computerized business record [to a certification signed by plaintiff's

employee] in support of its default claim." He claims the documentary proof of

payments was required to be annexed to the certification by the "[R]ule requiring

such certifications to have attached thereto all documents upon which the affiant

relies," and the trial court could not "conclude without making a creditibility

determination as to whether [d]efendant defaulted and when the alleged default

A-2375-18T1
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happened just by reading the statement." He also asserts the trial court made no

fact finding, as required by Rule 1:7-4(a), that defendant defaulted.

The certification provided, in pertinent part:

In the regular performance of my job functions, I
am familiar with business records maintained by
[plaintiff], for the purpose of servicing mortgage loans.
These records (which include data compilations,
electronically imaged documents, and others) are made
at or near the time by, or from information provided by,
persons with knowledge of the activity and transactions
reflected in such records, and are kept in the course of
business activity conducted regularly by [plaintiff]. It
is the regular practice of [plaintiff's] mortgage
servicing business to make these records. In connection
with making this certification, I have personally
examined these business records.

....

Defendant . . . has defaulted under the terms and
conditions of the . . . [n]ote by failing, refusing and/or
neglecting to make the December 2, 2016 payment and
all payments due thereafter.

The notice of intention to foreclose (NOI) that was attached to the certification

advised defendant that the note and mortgage were in default because plaintiff

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did not receive installment payments due for December 2016 through January

2017.2

The trial court recited the proper standard for determining summary

judgment motions in foreclosure actions, and determined plaintiff had standing

and was entitled to enforce the instruments because it "ha[d] been in possession

of the note and mortgage[—both of which were submitted to the trial court—]

since prior to the filing of the complaint." The trial court rejected defendant's

claim that plaintiff was required to provide proof of all payments made on the

loan, and concluded defendant had not submitted any proof in support of his

affirmative defense that the plaintiff had no evidence, specifically a

"Loan/Payment History," to support its claim that defendant defaulted.

In our review of a grant of summary judgment, we apply the same legal

standard as the motion judge. Townsend v. Pierre, 221 N.J. 36, 59 (2015). We

must determine whether there is a "genuine issue as to any material fact" when

the evidence is "viewed in the light most favorable to the non-moving party[.]"

Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405-06 (2014) (first quoting

2
Although defendant argued in opposition to plaintiff's summary judgment
motion that plaintiff failed to prove service of the NOI, he did not brief that issue
on appeal. As such we will consider it waived. Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011).

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R. 4:46-2(c), then quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

540 (1995)). The "trial court's interpretation of the law and the legal

consequences that flow from established facts are not entitled to any special

deference" and are reviewed de novo. Estate of Hanges v. Metro. Prop. & Cas.

Ins. Co., 202 N.J. 369, 382-83 (2010) (quoting Manalapan Realty, L.P. v. Twp.

Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

Although the trial court did not explicitly find defendant was in default,

that fact is obvious from a plain reading of the court's written statement of

reasons. Thus, there is no merit to his claim that the trial court did not comply

with Rule 1:7-4(a).

Plaintiff's employee's certification established that his review of plaintiff's

business records was the basis for his sworn statement that defendant was in

default by failing to make any payments since December 2, 2016. Although an

application for judgment must be accompanied by proofs as required by Rule

4:64-2, R. 4:64-1(d)(1), including a schedule as set forth in Appendix XII-J, R.

4:64-2(b)—which was submitted by plaintiff in its application for final

judgment—there is no similar requirement for such proof in connection with a

motion for summary judgment. Plaintiff's employee's uncontradicted

certification provided sufficient support for the grant of summary judgment to

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plaintiff. Contrary to defendant's assertion, the trial court did not have to make

a credibility determination. The trial court recognized defendant had not

sufficiently supported his bald averment that there was no proof of default. As

we discerned in Brae Asset Fund, L.P. v. Newman:

The law is well settled that "[b]are conclusions in the
pleadings without factual support in tendered
affidavits, will not defeat a meritorious application for
summary judgment." U.S. Pipe & Foundry Co. v. Am.
Arbitration Ass'n, 67 N.J. Super. 384, 399-400 (App.
Div. 1961). By the same token, bare conclusory
assertions in an answering affidavit are insufficient to
defeat a meritorious application for summary judgment.

[327 N.J. Super. 129, 134 (App. Div. 1999) (alteration
in original) (citations omitted).]

We discern the trial court heeded the Brill Court's instruction to

keep in mind that the summary judgment rule should be
applied so as to serve two competing jurisprudential
philosophies. As this Court observed over a quarter of
a century ago:

On the one hand is the desire to afford
every litigant who has a bona fide cause of
action or defense the opportunity to fully
expose his case. . . . On the other hand,
protection is to be afforded against
groundless claims and frivolous defenses,
not only to save antagonists the expense of
protracted litigation but also to reserve
judicial manpower and facilities to cases
which meritoriously command attention.

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 [Brill, 142 N.J. at 541-42 (alteration in original)
(citation omitted) (quoting Robbins v. Jersey City, 23
N.J. 229, 240-41 (1957)).]

We determine the balance of defendant's arguments are without sufficient

merit to warrant discussion. R. 2:11-3(e)(1)(E). We add only that we fully agree

with Judge Robert J. Brennan's cogent written statement of reasons

accompanying his denial of defendant's motion to set the amount due at "$0.00,"

and returning the matter to the Office of Foreclosure for entry of a final

judgment.

Affirmed.

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