On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Atlantic County, F-2583-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 2, 2009
Before Judges Reisner and Alvarez.
This is a foreclosure case, in which defendant appeals from an October 5, 2007 order granting summary judgment deeming her answer noncontesting, and from a writ of execution dated February 11, 2008, permitting a sheriff's sale of the foreclosed property.*fn1 We affirm.
The record presented to us on this appeal reveals the following undisputed facts. Defendant owns property at 215 Gray Avenue, Egg Harbor, New Jersey. On May 3, 1999, defendant signed a promissory note and mortgage, requiring her to make monthly payments of $571.87. The original mortgage holder, Atlantic Coast Mortgage Services, Inc. (Atlantic), assigned the mortgage to Source One Mortgage Corporation, now known as Citimortgage. On December 4, 2006, Citimortgage sent Ramirez a default notice contending that she was in arrears with her payments. Citimortgage filed a foreclosure complaint on January 29, 2007.
Purporting to act under a written "delegation of authority" signed by Ramirez, her friend Mr. Floyd filed an answer on behalf of Ramirez. Because an answer had been filed, the Foreclosure Unit deemed the matter contested, see R. 4:64-1, and referred the case to the Superior Court. On May 9, 2007, Judge William Todd struck the answer, because it was filed by someone other than defendant or her attorney. However, he also ordered Citimortgage to provide Ramirez with an accounting of what she owed to bring the mortgage current, and gave her an opportunity to file a proper answer before final judgment of foreclosure would be entered.
Ramirez filed an answer on June 5, 2007, contending that she had made the allegedly overdue payments through "speedy pay." She also contended that Citimortgage was not a "holder in due course" of the promissory note, and that Citimortgage should be required to produce the original note. Citimortgage filed a motion for summary judgment, supported by a certified copy of the note and mortgage, legally competent evidence establishing that the mortgage was in default, and proof of its assignment from Atlantic. Its motion papers also documented that Citimortgage had advanced funds to pay the taxes and insurance on the property.
The motion was heard on October 5, 2007. At the October 5 hearing, Ramirez contended that the note Citimortgage provided in its motion was not the original, and claimed it was "altered" because a seal was added to it. However, she admitted signing the original note. She also contended that the mortgagee was "using my money paying the taxes."
In his oral opinion placed on the record on October 5, Judge Todd concluded that Ramirez had not raised any viable defenses to the foreclosure. He found that she signed the $78,000 note and mortgage in May 1999, that there was no dispute as to the amount currently owed, that there was no legal problem with the assignment of the mortgage, and that Ramirez was in default. Judge Todd found that the presence of the stamp did not raise a genuine issue as to the authenticity of the copy of the document provided, and the absence of the original was not a defense. Judge Todd also gave defendant a very detailed explanation of the procedures that would come next, including her right to cure until the final judgment was entered, her automatic right to two adjournments of the sheriff's sale, and her right to file an interlocutory appeal of his order deeming her answer uncontested. Final judgment was later entered and we denied defendant's emergent motion to stay the sheriff's sale.
On this appeal, Ramirez raises a series of arguments all of which are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Ramirez objects to the fact that Judge Todd allowed Citibank's attorney to argue the summary judgment motion by telephone. Ramirez appears to misunderstand that the hearing on October 5, 2007 was not a trial. It was the oral argument of a motion, which the judge had discretion to hear by telephone. See R. 1:6-2(e). The judge did not take any testimony during the argument; he simply listened to Citimortgage's attorney and Ramirez present their arguments.
We also find no merit in Ramirez's claims that she was denied due process. Judge Todd treated her with scrupulous fairness. The argument that Citibank is not the "holder in due course" is equally without merit. Citibank produced a copy of the assignment and a certified copy of the note and mortgage. Ramirez admitted signing the note and did not claim that its essential terms had been altered in any way. She asserted no valid defense to the foreclosure and summary judgment was ...