On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Cape May County, Docket No. F-0862-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2007
Before Judges S. L. Reisner and Gilroy.
This is the third of four real property foreclosure appeals filed by defendant-mortgagors Audry E. Green and Shirley Green, husband and wife.*fn1 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 September 29, 2006, judgment of foreclosure entered in the Chancery Division, General Equity Part, Cape May County, under Docket No. F-862-02, as amended by order of December 19, 2006.
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 on 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 at 508 Main Street, Middle Township. On May 6, 1997, the mortgage was recorded in the Office of the Cape May County Clerk in Book 2607 of Mortgages, Page 198.
On the same day that defendants executed the note and mortgage, Parkway assigned the loan documents to ContiMortgage Corporation. The assignment was recorded on August 27, 1998, in Book 267 of Assignments, Page 951. Although the assignment references the same loan number as the mortgage (3970374) and refers to the 508 Main Street property, it indicates that the assigned mortgage had been recorded in Book 2607 of Assignments, Page 204. The mortgage actually recorded in Book 2607 of Assignments, Page 204, was the mortgage affecting property at 414 West Main Street, also executed by defendants on April 17, 1997.
On May 8, 1997, defendants received a letter from IMC Mortgage Company (IMC) stating that on May 1, 1997, it had purchased their mortgage from Parkway. However, the reverse side of the letter contained a notification entitled, "Notice of Assignment, Sale or Transfer of Service and Rights," which provided in pertinent part:
You are hereby notified that the servicing of your mortgage loan, that is, the right to collect payments from you, is being assigned, sold or transferred from the Present Servicer [Parkway] to the New Servicer named above [IMC]. The Assignment, sale or transfer of the servicing of the mortgage loan does not affect any term or condition of the mortgage instruments, other than terms directly related to the servicing of your loan.
On November 16, 1999, defendants received a letter from CitiFinancial Mortgage Company (Citi), advising that "Citi has purchased the mortgage loan operations of IMC . . . . Effective December 6, 1998, Citi . . . will be the servicer for . . .[the] mortgage loan."
On February 19, 2003, ContiMortgage executed an assignment of the mortgage in favor of plaintiff, confirming an assignment that had occurred by securitization in September 1997. The assignment was recorded in Book 298 of Assignments, Page 636. This assignment also reflected that the assigned mortgage had been recorded in Book 2607 of Mortgages, Page 204. On October 21, 2004, a corrective assignment of mortgage was executed by ContiMortgage in favor of plaintiff, addressing the error: "The filed assignment reflects the mortgage recorded in Book 2607, Page 204; the mortgage assigned is actually recorded in Book 2607, Page 198." Fairbanks Capital Corporation commenced servicing the loan on June 2, 2001.
Believing that defendants had last made a payment on December 7, 2001, which had been credited to the September 1, 2001, payment, Fairbanks notified defendants that they were in default as of October 22, 2001. Plaintiff filed its foreclosure complaint on January 11, 2002. On May 27, 2003, plaintiff moved for summary judgment. On August 18, 2003, Judge Seltzer granted partial summary judgment, correcting the land records in the Office of the Clerk of Cape May County to reflect the correct page number of the assignment in the chain of title from Parkway to ContiMortgage. The order provided in relevant part:
There is an assignment for the mortgage on 508 Main Street, Middle Township, New Jersey from Parkway that is recorded at Assignment Book 267, pp. 951-952. The assignment from Parkway Mortgage to [ContiMortgage] contains a handwritten reference that the mortgage being assigned is located at Book 2607, Page 204. This reference is actually to a mortgage for 414 West Main Street, Middle Township, New Jersey. The mortgage for the 508 Main Street property is actually recorded at Book 2607, Page 198, and it is the mortgage that should be referred to in the Assignment recorded at Assignment Book 267, pp. 951-952.
[T]he Clerk is directed to correct the scrivener's error in the land records, or, alternatively, is directed to record this Order, with appropriate ...