On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-042822-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 8, 2012
Before Judges Axelrad and Ostrer.
In this mortgage foreclosure case, defendant Sandra Crespo appeals from an order of April 15, 2011, granting the motion of plaintiff, Wells Fargo Bank, NA, dba America's Servicing Company (Wells Fargo), for summary judgment striking defendant's answer and dismissing her counterclaims, and order of May 13, 2011, denying defendant's motion to vacate plaintiff's motion for summary judgment. Defendant argues there were genuine issues of material fact regarding standing, plaintiff failed to authenticate its documents, and she generally presented sufficient factual and legal bases to withstand summary judgment on her counterclaims. We affirm in part and reverse in part.
On August 2, 2005, defendant borrowed $264,000 from Credit Suisse First Boston Financial Corporation (Credit Suisse) to purchase a residential property located in Ridgefield Park, secured by a note and purchase money mortgage to Credit Suisse.*fn1
The mortgage was recorded with the Bergen County Clerk on December 8, 2005. On March 1, 2010, defendant defaulted on the loan.
On August 23, 2010, MERS as nominee for Credit Suisse assigned the mortgage and underlying obligation to plaintiff. The assignment was recorded by the Bergen County Clerk on September 13, 2010.
On September 2, 2010, plaintiff filed a foreclosure complaint against defendant. Plaintiff recited the aforementioned history. Defendant was served with the complaint in October.
In December 2010, defendant filed an answer and asserted the affirmative defenses of lack of personal jurisdiction due to failure to properly serve process (first), failure to state a cause of action (second), lack of subject matter jurisdiction (third), lack of standing (fourth), statute of limitations bar (fifth), failure to join a necessary party (sixth), and failure to mitigate damages (seventh). She also asserted counterclaims alleging violations of the Truth in Lending Act, Home Ownership Equity Protection Act, Real Estate Settlement Procedures Act and Deceptive Practices Act.
In March 2011, plaintiff filed a motion for summary judgment to strike defendant's answer and dismiss her counterclaims. The motion was unopposed and granted on April 15, 2011. In the motion disposition sheet, the court found defendant was properly served and summarily rejected defendant's second, third, fifth, sixth and seventh affirmative defenses as a matter of law. The court also explained the legal basis for its grant of summary judgment in favor of plaintiff on each of defendant's counterclaims.
In addressing and rejecting defendant's standing defense, the court noted that plaintiff submitted a note containing an allonge endorsed in blank, a mortgage, and a Truth in Lending Disclosure Statement, all dated August 2, 2005 and signed by defendant, an assignment of mortgage dated August 23, 2010, and a notice of intention to foreclose dated April 11, 2010. The court found the certification of plaintiff's counsel, to which the documents were attached, to be legally insufficient under Rule 1:6-6 because there was no indication he had "personal knowledge sufficient to certify [their] accuracy." However, the court was satisfied the documents were sufficiently authenticated by Erin A. Hirzel Roesch, a litigation specialist with plaintiff, who subsequently certified that she reviewed defendant's loan file. The court further noted Roesch's certification that America's Servicing Company, a division of plaintiff, was "still the holder and owner" of the subject note and mortgage, thereby finding plaintiff had standing to maintain the action.
A week later, defendant filed a motion to vacate the order, claiming she appeared at the courthouse on April 1 and told the clerk she intended to file opposition to plaintiff's motion, but was not advised of the deadline. According to defendant, when she appeared on April 20 to file opposition, she was told a decision had already been made. Defendant asserted the following three grounds for denial of plaintiff's motion: (l) lack of standing; (2) failure of plaintiff to present a prima facie case by presenting admissible evidence by a competent witness; and (3) there were genuine issues of fact regarding her defenses.
As to standing, defendant argued plaintiff failed to present properly authenticated evidence that Credit Suisse authorized MERS to assign its mortgage to plaintiff. She noted the assignment of mortgage was executed by Judith T. Romano, "Assistant Secretary and Vice President" of MERS as Credit Suisse's nominee. Defendant expressed her belief that Romano was an attorney in the law firm representing plaintiff in the foreclosure and noted the absence of any resolution from MERS or Credit Suisse authorizing Romano to act on its behalf. Defendant additionally argued that plaintiff failed to present properly authenticated evidence that it acquired ownership or control of the note prior to the foreclosure complaint, i.e., it was the holder of the note or a nonholder in possession with rights of the holder under N.J.S.A. 12A:3-301 as we required in Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597-99 (App. Div. 20ll). See also Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-32 (Ch. Div. 2010). Defendant emphasized that Roesch merely certified she "reviewed the loan file" and disclosed no source of knowledge, supporting details, or documentary evidence for her statement that America's Servicing Company acquired the note and mortgage from Credit Suisse in a transaction dated December 5, 2005, or that America's Servicing Company was still the holder of the note and mortgage. Defendant noted the assignment of mortgage made no mention of the December 5, 2005 date, and Roesch's certification made no mention of the August 23, 2010 date reflected on the assignment of mortgage. Defendant also pointed out that the allonge to the note was undated and there was an illegible signature under the legend "PAY TO THE ORDER OF _____________ WITHOUT RECOURSE" identified to represent "Lydian Data Services Its: Attorney-in-Fact for Credit ...