On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Cape May County, Docket No. F-4429-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges S. L. Reisner and Gilroy.
This is the second of four real property foreclosure appeals filed by defendant-mortgagors Audry E. Green and Shirley Green, husband and wife.*fn2 The four appeals filed under Docket Nos. A-7120-03T5, A-1124-04T2, A-1556-06T2, and A-2349-06T2 were submitted back to back for our consideration. In this matter, defendants appeal from the November 14, 2004, judgment of foreclosure entered in the Chancery Division, General Equity Part, Cape May County, under Docket No. F-4429-01, as amended by order of July 13, 2006, correcting the name of plaintiff to Manufacturers & Traders Trust Company, Trustee For Securitization Series 1997-3, Agreement dated June 1, 1997. We affirm.
On April 17, 1997, defendants executed a $62,000 promissory note and mortgage in favor of Parkway Mortgage, Inc. The note was for a term of twenty years and required defendants to repay the principal, together with interest at the rate of 10.99% per annum, by making monthly payments of $639.54, on the twenty-second day of each month, commencing May 22, 1997. Both the note and mortgage contained a provision that permitted the note holder, on default, to accelerate the entire balance of principal and interest due under the note on a thirty-day written notice to defendants. The mortgage encumbered property located at 414 West Main Street, Middle Township. On May 6, 1997, the mortgage was recorded in the Office of the Cape May County Clerk in Mortgage Book 2067, Page 204.
On the same day defendants executed the note and mortgage, Parkway assigned the loan documents to ContiMortgage Corporation. The original assignment was lost and never recorded. On May 15, 1997, ContiMortgage assigned the mortgage to ContiWest Corporation, a wholly owned subsidiary of ContiMortgage. This assignment was recorded on August 27, 1998, in Book 267 of Assignments, Page 953. On February 19, 2003, ContiWest assigned the note and mortgage to plaintiff. This assignment memorialized a prior assignment to plaintiff that was part of a June 1, 1997, securitization of the mortgage. The assignment was recorded in Book 298 of Assignments, Page 652. Fairbanks Capital Corporation began servicing the loan on behalf of plaintiff on August 1, 2000.
On January 24, 2001, believing that defendants had failed to make the December 22, 2000 payment, Fairbanks sent defendants a letter, advising that they were in default for failing to make the December 2000 and January 2001 payments. The notice advised defendants that they could reinstate the mortgage by paying all amounts due by February 24, 2001. On March 7, 2001, plaintiff filed its foreclosure complaint.
Defendants filed an answer denying they had defaulted on the note and mortgage. On April 23, 2001, plaintiff filed an amended complaint reciting that the mortgage had been assigned to ContiMortgage by an unrecorded assignment; was later assigned to ContiWest Corporation by the assignment recorded on August 27, 1998; and last assigned to plaintiff by ContiWest. On April 14, 2003, plaintiff filed a second amended complaint adding Parkway as a defendant, requesting that the court "issue its [o]rder establishing the assignment from [d]efendant Parkway to ContiMortgage and authorizing the filing of the [o]rder in the land records of Cape May County to establish the assignment." Default was entered against Parkway for failure to file an answer.
On May 27, 2003, plaintiff moved for summary judgment. On July 18, 2003, Judge Seltzer granted partial summary judgment, determining that the assignment from Parkway to ContiMortgage was valid, and directing the County Clerk to accept an exemplified copy of the court's order to establish the lost assignment from Parkway to ContiMortgage. A confirming order entered on August 18, 2003, provided in relevant part:
Defendants executed a $62,000 mortgage and promissory note to Parkway Mortgage on April 17, 1997 for the property located at 414 West Main Street, Middle Township, New Jersey. This mortgage is recorded at Book 2607, Page 204. On April, 17, 1997, this mortgage was assigned from Parkway Mortgage to ContiMortgage Corporation. The assignment from Parkway Mortgage to ContiMortgage Corporation has been lost, and while there are no signed copies of the assignment, Plaintiff has established that the assignment took place.
[t]he Clerk is hereby directed to accept and record an exemplified or certified copy of this Order to establish the lost Assignment, as if this Order were the original Assignment.
However, the judge denied that part of plaintiff's motion, which sought to declare defendants in default, strike defendants' answer, and transfer the matter to the Foreclosure Unit.
A bench trial was held before Judge Seltzer on January 6 and 7, 2004. On February 17, 2004, the judge issued a sixteen-page written opinion in which he determined that defendants had made all mortgage payments through January 2001, but had defaulted in making the February 2001 payment, justifying plaintiff accelerating the ...