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Wachovia Bank, N.A. v. Juergensen

January 24, 2007

WACHOVIA BANK, N.A. AS ASSIGNEE FOR PLYMOUTH SPV1, PLAINTIFF-RESPONDENT,
v.
RALPH JUERGENSEN, MRS. RALPH JUERGENSEN, WIFE OF RALPH JUERGENSEN, CAPITAL ASSETS PROPERTY MANAGEMENT & INVESTMENT CO., INC., NATIONAL HOME FUNDING, COPELCO CAPITAL, INC., DIMARCO SERVICES, INC., DENISE RUSH, PUBLIC SERVICES ELECTRIC AND GAS COMPANY, BUREAU OF HOUSING INSPECTION, AND THE STATE OF NEW JERSEY, DEFENDANTS AND DUGGAN PARTNERS, LLC, A NEW JERSEY LIMITED LIABILITY COMPANY, INTERVENOR-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, F-11309-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 6, 2006

Before Judges Winkelstein, Fuentes and Baxter.

Appellant, Duggan Partners, LLC (Duggan), appeals from a June 24, 2005 order of the Chancery Division that barred appellant from redeeming plaintiff's tax sale certificate in this tax sale foreclosure action and granted summary judgment to plaintiff. We affirm.

On August 29, 1997, the City of Asbury Park conducted a public tax sale of a number of properties, including the property at 1422 Mattison Avenue; Block 92, Lot 25 on the municipal tax map (the property). The tax sale certificate was sold to the City and was recorded on October 7, 1997. The City assigned the certificate to plaintiff, and on June 28, 2004, plaintiff filed its foreclosure complaint. Plaintiff named as defendants all individuals and entities having a recorded interest as of the date the complaint was filed. This included National Home Funding (National Home), which held a mortgage (the mortgage) on the property dated December 30, 1996. The mortgage was security for a $110,000 loan to the owner of the property, defendant Ralph Juergensen. Appellant, having no recorded interest in the property, was not named as a defendant.

In October 2004, plaintiff was notified that appellant had redeemed the tax sale certificate. According to appellant, which has supported its arguments with certifications of counsel, in return for $5000, it obtained an interest in the mortgage by virtue of an assignment from Walsh Securities, Inc. (Walsh), dated March 30, 2004, and recorded on either August 12 or October 6, 2004.*fn1

It is not disputed that prior to assigning the mortgage to appellant, Walsh had assigned its interest in the mortgage to "TMS Mortgage, Inc." (The Money Store), by assignment dated January 7, 1997. Appellant claims, however, that Walsh repurchased its interest in the mortgage from the Money Store before assigning that interest to appellant, when Walsh entered into a "repurchase agreement" with the Money Store dated June 16, 1998. According to that agreement, Walsh purchased a number of loans from the Money Store for approximately $1.5 million. The loans to be purchased were listed on an attached document, referred to as "Schedule A." Schedule A lists twenty loans, one of which is the National Home loan, secured by the mortgage.

Appellant acknowledges that it was not the legal owner of the mortgage; and appellant does not dispute that on January 7, 1997, Walsh assigned the mortgage to the Money Store. Appellant's principal contention on appeal is that the repurchase agreement vested in Walsh an equitable interest in the mortgage, and appellant obtained that same interest by virtue of the March 20, 2004 assignment from Walsh. Accordingly, appellant submits that this interest entitles it to intervene in the mortgage foreclosure proceedings and redeem the tax sale certificate.

In denying appellant's motion to intervene and granting plaintiff's cross-motion for summary judgment, the trial court stated, in part:

If Walsh did not own the mortgage in question, then the issue becomes whether there was a valid assignment of the mortgage from Walsh to Duggan. . . .

This Court is convinced that . . . Duggan has failed to meet its burden to demonstrate that it owns the mortgage in question.

Plymouth submits . . . documents demonstrating the Money Store's ownership actions with respect to the . . . [mortgage] after the date of the blank assignment . . . .

If I was to have a trial tomorrow, there would be no other evidence presented before me and there is no reason to have a trial, and that is why ...


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