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Jeffrey Lichtenstein v. Dlj Mortgage Capital

November 17, 2011

JEFFREY LICHTENSTEIN, PLAINTIFF-APPELLANT,
v.
DLJ MORTGAGE CAPITAL, INC., AND EDWARD V. ROCHFORD, SOLELY IN HIS CAPACITY AS SHERIFF OF MORRIS COUNTY,
DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-119-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2011

Before Judges Alvarez and Skillman.

Plaintiff Jeffrey Lichtenstein appeals from an order entered April 1, 2011, which granted summary judgment to defendants DLJ Mortgage Capital, Inc. (DLJ) and the Sheriff of Morris County, Edward J. Rochford, and dismissed Lichtenstein's complaint that sought to set aside a deed from the Sheriff to DLJ for a property in Randolph formerly owned by Lichtenstein based on a final judgment of foreclosure entered on May 2, 2006.

The plaintiff in the mortgage foreclosure action was Washington Mutual Bank (Washington Mutual). The sale of the property foreclosed upon was substantially delayed by Lichtenstein's filing of a petition for bankruptcy and various litigation seeking to collaterally attack the final judgment of foreclosure.

Sometime after entry of the foreclosure judgment, DLJ, which is a subsidiary of Credit Suisse, acquired that judgment and the note and mortgage upon which it was based. On December 7, 2006, DLJ filed a proof of claim in Lichtenstein's bankruptcy proceeding.

That proceeding resulted in an automatic stay of proceedings to enforce the foreclosure judgment. On July 26, 2007, the bankruptcy court entered an order requiring Lichtenstein's bankruptcy estate to pay DLJ $15,972.08 in arrearages on the mortgage for the Randolph property and thereafter to pay $2,662.02 per month on the mortgage. The order further provided that if those payments were not made to DLJ, the automatic stay with respect to the final judgment of foreclosure would be vacated.

The bankruptcy proceeding in which this order was entered was apparently concluded on November 30, 2007. However, Lichtenstein apparently filed another bankruptcy proceeding sometime thereafter as well as various litigation to forestall enforcement of the foreclosure judgment.

While these proceedings relating to Lichtenstein's bankruptcy and the foreclosure judgment against him were ongoing, Washington Mutual filed for bankruptcy. On September 25, 2008, the Federal Deposit Insurance Company (FDIC), acting as the receiver in the bankruptcy proceedings, sold Washington Mutual's assets to J.P. Morgan Chase.

After the stays of enforcement of the foreclosure judgment expired or were vacated, on June 24, 2010, the Sheriff sold the Randolph property to DLJ at a Sheriff's sale. Lichtenstein did not bid at the Sheriff's sale or take any action after the sale to redeem the property.

Instead, on August 18, 2010, Lichtenstein filed this action to set aside the deed for the property, naming both DLJ and the Sheriff as defendants. The action was based on Lichtenstein's allegation that Washington Mutual had not validly transferred the foreclosure judgment to DLJ before Washington Mutual went bankrupt and its assets were transferred to J.P. Morgan Chase.

DLJ filed a motion for summary judgment, in which the Sheriff joined. In support of this motion, DLJ submitted a certification by Troy Noble, the servicing agent for Credit Suisse and DLJ, which stated that Credit Suisse, the parent company of DLJ, is "the holder of the foreclosure judgment [for the Randolph property] which has merged with the underlying mortgage[.]" This certification also stated that the note secured by the mortgage had been "stamped as payable to [DLJ]" and was being held by its attorney.

After hearing argument, the trial court granted defendants summary judgment dismissing the complaint. In the course of its ...


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