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Bank of America, N.A v. Melissa Limato

July 2, 2012

BANK OF AMERICA, N.A., PLAINTIFF-APPELLANT,
v.
MELISSA LIMATO, DEFENDANT-RESPONDENT



On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-61880-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 21, 2012 -

Before Judges Cuff, Lihotz and St. John.

Plaintiff Bank of America, N.A., appeals from the dismissal, without prejudice, of this foreclosure action against defendant Melissa Limato. The Chancery judge concluded plaintiff had not only failed to comply with the notice provision of the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-56, but more importantly, lacked standing to pursue foreclosure as it could not demonstrate its status as the holder of the note, a non-holder with possession of the note, or that the original note was lost, as required under the Uniform Commercial Code (UCC), N.J.S.A. 12A:3-301. We affirm.

The following facts are taken from the record submitted by the parties in support of their respective motions for summary judgment, which we view in a light most favorable to plaintiff as the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).

On July 1, 2004, defendant and her late husband John executed a thirty-year promissory note as the "Borrowers" to America's Mortgage Outsource Program (AMOP), which was designated as the "Lender." According to the terms of the promissory note, Borrowers agreed to repay the principal amount of $532,000, along with interest, fixed at 5.625% per annum rate for the initial ten years and at an adjustable interest rate thereafter. Simultaneously, defendant and John executed a purchase money mortgage securing the debt through an interest in the purchased realty. The mortgage was recorded in the Bergen County Clerk's Office.

Sometime after defendant executed the documents,*fn1 two endorsements were added to the last page of the promissory note. The first appeared below the substantive note terms, but above the Borrowers' signatures, and was blank:

WITHOUT RECOURSE PAY TO THE ORDER OF

WELLS FARGO BANK, NA DBA AMERICA'S MORTGAGE OUTSOURCE PROGRAM /s/JOAN M. MILLS

JOAN MILLS VICE PRESIDENT

The second was placed in the same section as the Borrowers' signatures:

WITHOUT RECOURSE PAY TO THE ORDER OF WELLS FARGO BANK, NA BY /s/ JOAN M. MILLS Sign Original Only

Joan M. Mills, Vice President The Mortgage stated it should be returned to "Wells Fargo ...


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