CORNELIA WRIGHT VS. PREMIER BUSINESS MANAGEMENT(L-6000-13, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3020-15T2

WILMINGTON TRUST, NATIONAL
ASSOCIATION,1

Plaintiff-Respondent,

vs.

MEIR ASSOULIN and JOY ROSE
ASSOULIN, Husband and Wife,

Defendants-Appellants.
——————————————————————————————

Argued telephonically January 25, 2017 –
Decided April 21, 2017

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey,
Chancery Division, Monmouth County, Docket No.
F-4829-13.

James G. Aaron argued the cause for appellants
(Ansel Grimm & Aaron, P.C., attorneys; Mr.
Aaron, of counsel and on the briefs; Jay B.
Feldman, on the briefs).

1 By order dated May 8, 2015, the complaint was amended by
striking the name of JP Mortgage Acquisition Corp. (JP Mortgage),
as the party plaintiff. Wilmington Trust, National Association,
not in its Individual Capacity, but Solely as Trustee for VM Trust
Series 3, A Delaware Statutory Trust (Wilmington Trust), was
substituted as the party plaintiff.
 Gene R. Mariano argued the cause for
respondent (Parker McCay, P.A., attorneys; Mr.
Mariano, of counsel and on the brief; Stacy
L. Moore, Jr., on the brief).

PER CURIAM

Defendants Meir Assoulin2 and Joy Rose Assoulin appeal from

the Chancery Division's May 8, 2015 order reinstating the

foreclosure action against defendants and substituting Wilmington

Trust, as party plaintiff in place of JP Mortgage. In reviewing

defendants' arguments presented on appeal, generally at issue is

JP Morgan's standing to seek reinstatement of the foreclosure

action and the substitution of Wilmington Trust as plaintiff.

Following our review of the record and applicable law, we affirm.

I.

On May 31, 2005, Meir executed a $750,000 promissory note,

with a yearly interest rate of six-and-a-half percent, in favor

of JP Morgan. The note matured on June 1, 2035, and required a

monthly payment of $4,740.51. On the same date, defendants

executed a mortgage on their "summer home" in Deal, as security

for the note. JP Morgan recorded the mortgage on June 17, 2005.

JP Morgan sent a notice of default and intention to foreclose

to defendants on June 20, 2012. The notice stated defendants had

2 In this opinion we refer to Meir Assoulin individually as Meir.
2 A-3020-15T2
not made a monthly payment since September 2011, and advised they

could cure their default if they paid $51,234.47 by July 23, 2012.

On February 13, 2013, JP Morgan filed a complaint against

defendants, seeking to foreclose on the property in Deal.

Defendants filed their answer and counterclaim on April 1, 2013.

On December 4, 2013, JP Morgan filed motions for summary judgment

on its claims and to strike defendants' counterclaim and third-

party complaint. On January 17, 2014, the trial court granted JP

Morgan's motions.

On January 13, 2015, JP Morgan assigned the mortgage to

plaintiff. Plaintiff recorded the assignment on March 23, 2015.

By that date, however, the Superior Court Clerk's Office had

dismissed JP Morgan's case for lack of prosecution, pursuant to

Rule 4:64-8, with the filing of an administrative dismissal order

on February 27, 2015.

On April 22, 2015, JP Morgan filed a motion to reopen the

foreclosure action against defendants and substitute Wilmington

Trust as plaintiff. JP Morgan's counsel certified he had sent

fourteen-day notices to defendants and requested "[j]udgment

figures" from JP Morgan at "the conclusion of the litigation." On

March 20, 2014, JP Morgan's counsel sent a certification of amount

due to JP Morgan for review and execution. According to its

counsel, "[t]his matter did not advance to [f]inal [j]udgment

3 A-3020-15T2
because there were a number of complexities and unresolved issues

with the [c]ertificat[ion] of [a]mount [d]ue that had to be

addressed prior to the [f]inal [j]udgment [m]otion being filed."

Earlier, on November 3, 2014, JP Morgan assigned this

foreclosure to a new servicer. On December 4, 2014, the new

servicer told JP Morgan's counsel to proceed with the foreclosure.

Because JP Morgan anticipated assigning the mortgage, its counsel

waited for the assignment in order to file the motion to substitute

JP Morgan with Wilmington Trust as plaintiff. JP Morgan's counsel

received the lack of prosecution dismissal warning on January 23,

2015, but "the complexities and issues that hampered the completion

of the [c]ertification of [a]mount [d]ue were not resolved in time

to avoid dismissal for lack of prosecution along with the service

transfer and the required new [a]ssignment of [m]ortgage." JP

Morgan's counsel therefore "submitted that good cause ha[d] been

established" to reinstate its foreclosure action. JP Morgan's

motion also included its assignment of the mortgage to plaintiff.

On April 28, 2015, defendants opposed JP Morgan's motion.

Meir certified the trial court would cause him prejudice if it

granted JP Morgan's motion. He explained that the court had

stricken his answer, so he would not be able "to put [p]laintiff

to its tests as to the appropriateness of the alleged sale of the

4 A-3020-15T2
mortgage." He did not contend JP Morgan lacked standing to file

its motion.

The trial court granted JP Morgan's motion on May 7, 2015.

The court found JP Morgan established good cause under Rule 4:64-

8, because "there were problems with the servicers." The next

day, the court reinstated JP Morgan's case under Rule 4:64-8,

struck JP Morgan's name from the complaint, and substituted it

with plaintiff's name.

In September 2015, plaintiff filed its motion for final

judgment in foreclosure. It included a certification of amount

due, stating plaintiff owned and held the note and mortgage, and

Meir owed $857,324.93. On October 29, 2015, the trial court

entered final judgment against defendants. This appeal followed.

II.

Defendants argue the Chancery Division erred three times.

First, the trial court should not have considered JP Morgan's

motion to reinstate its complaint and substitute Wilmington Trust

as plaintiff because JP Morgan lacked standing. Second, the trial

court's decision resulted in an inequity. Third, the trial court

should have required plaintiff to send them a notice of intent to

foreclose. We reject these arguments and affirm the trial court.

5 A-3020-15T2
 A. Standing

"The issue of standing presents a legal question subject to

our de novo review." Courier-Post Newspaper v. Cty. of Camden,

413 N.J. Super. 372, 381 (App. Div. 2010) (citation omitted). The

New Jersey Supreme Court defines standing broadly and does not

restrict New Jersey courts to the rigid "case or controversy"

requirement under Article III, § 2 of the United States

Constitution. Salorio v. Glaser, 82 N.J. 482, 490 (1980). The

New Jersey Constitution "contains no analogous provision limiting

the subject-matter jurisdiction of the Superior Court." Id. at

491 (citing N.J. Const. art. VI, § 3, ¶ 2). New Jersey courts

remain "free to fashion [their] own law of standing consistent

with notions of substantial justice and sound judicial

administration." Ibid.

Rule 4:26-1 "is ordinarily determinative of standing to

prosecute an action." Pressler & Verniero, Current N.J. Court

Rules, cmt. 2.1 on R. 4:26-1 (2016). Rule 4:26-1 states, "Every

action may be prosecuted in the name of the real party in

interest . . . ." New Jersey courts "have traditionally taken a

generous view of standing in most contexts." In re Protest of

Award of N.J. State Contract A71188 for Light Duty Auto. Parts,

422 N.J. Super. 275, 289 (App. Div. 2011) (citations omitted).

Without ever becoming enmeshed in the federal
complexities and technicalities, [New Jersey
6 A-3020-15T2
 courts] have appropriately confined
litigation to those situations where the
litigant's concern with the subject matter
evidenced a sufficient stake and real
adverseness. In the overall [New Jersey
courts] have given due weight to the interests
of individual justice, along with the public
interest, always bearing in mind that
throughout [their] law [they] have been
sweepingly rejecting procedural frustrations
in favor of "just and expeditious
determinations on the ultimate merits."

[Crescent Park Tenants Ass'n v. Realty
Equities Corp. of N.Y., 58 N.J. 98, 107-08
(1971) (citations omitted).]

"A financial interest in the outcome ordinarily is sufficient to

confer standing." EnviroFinance Group, LLC v. Envtl. Barrier Co.,

LLC, 440 N.J. Super. 325, 340 (App. Div. 2015) (citation omitted).

"Ordinarily, a litigant may not claim standing to assert the rights

of a third party. However, standing to assert the rights of third

parties is appropriate if the litigant can show sufficient personal

stake and adverseness so that the [c]ourt is not asked to render

an advisory opinion." Jersey Shore Med. Center-Fitkin Hosp. v.

Estate of Baum, 84 N.J. 137, 144 (1980) (internal citations

omitted).

Rule 4:34-3 states, "In case of any transfer of interest, the

action may be continued by or against the original party, unless

the court on motion directs the person to whom the interest is

transferred to be substituted in the action or joined with the

original party."
7 A-3020-15T2
 Defendants argue JP Morgan lacked standing to file its motion

to reinstate its foreclosure action because it no longer owned or

held the mortgage. Rule 4:26-1 and 4:34-3 anticipated these

circumstances and allowed JP Morgan to file a motion to reinstate

its case unless the court had already substituted the subsequent

party of interest. We discern no reason to conclude JP Morgan

lacked the requisite "sufficient personal stake and adverseness

so that the [c]ourt is not asked to render an advisory opinion."

Estate of Baum, supra, 84 N.J. at 144 (citations omitted). We

therefore decline to reverse on this basis.

B. Equity

"As a mortgagee resorting to a court of equity to enforce its

security, plaintiff exposed itself to the operation of equitable

principles and must submit to an equitable resolution." Totowa

Sav. & Loan Assoc. v. Crescione, 144 N.J. Super. 347, 352 (App.

Div. 1976) (citations omitted). General equitable principles

apply in foreclosure actions, including the principle that "he who

seeks equity must do equity." Sovereign Bank, FSB v. Kuelzow, 297

N.J. Super. 187, 197 (App. Div. 1997). "In this respect, equity

follows the common law precept that no one shall be allowed to

benefit by his own wrongdoing. Thus, where the bad faith, fraud

or unconscionable acts of a petitioner form the basis of his

8 A-3020-15T2
lawsuit, equity will deny him its remedies." Rolnick v. Rolnick,

290 N.J. Super. 35, 45 (App. Div. 1996) (citations omitted).

Defendants argue the trial court improperly denied them

discovery regarding defenses against plaintiff, specifically

whether JP Morgan had properly assigned the mortgage to plaintiff

and whether plaintiff had violated the Uniform Commercial Code.

JP Morgan included its assignment to plaintiff in its motion to

reinstate its case and substitute Wilmington Trust as plaintiff.

Defendants had the opportunity to review and contest the assignment

at that time. They do not argue the trial court erred in

substituting Wilmington Trust for JP Morgan, presumably because

the record does not show JP Morgan failed to assign the mortgage

to plaintiff or any other defect in the assignment under New Jersey

law or the Uniform Commercial Code. We therefore conclude the

trial court's order complied with "equitable principles,"

resulting in an "equitable resolution." See Totowa Sav. & Loan

Assoc., supra, 144 N.J. Super. at 352 (citations omitted).

C. Notice of intent to foreclose

N.J.S.A. 2A:50-56 states:

Upon failure to perform any obligation of a
residential mortgage by the residential
mortgage debtor and before any residential
mortgage lender may accelerate the maturity
of any residential mortgage obligation and
commence any foreclosure or other legal action
to take possession of the residential property
which is the subject of the mortgage, the
9 A-3020-15T2
 residential mortgage lender shall give the
residential mortgage debtor notice of such
intention at least 30 days in advance of such
action as provided in this section.

Defendants argue Wilmington Trust should have sent them a

notice of intention to foreclose. We disagree. N.J.S.A. 2A:50-

56 requires a foreclosure plaintiff to send a notice of intention

to foreclose to a defendant before commencing a foreclosure action.

Wilmington Trust did not commence this foreclosure action against

defendants, JP Morgan did, and it sent defendants a notice of

intention. We therefore affirm the trial court.

Affirmed.

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