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Deutsche Bank National Trust Co. v. Vezeriannis

Superior Court of New Jersey, Appellate Division

June 27, 2013

DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE IN TRUST FOR THE BENEFIT OF THE CERTIFICATEHOLDERS FOR AMERIQUEST MORTGAGE SECURITIES TRUST 2006-R1 ASSET-BACKED PASS-THROUGH CERTIFICATES, SERIES 2006-R1, Plaintiff-Appellant,
v.
KOSTANTINOS VEZERIANNIS, and MARIA VEZERIANNIS; MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR LEND AMERICA, A NEW YORK CORPORATION, Defendant-Respondents.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2012

On appeal from the Superior Court of New Jersey, Chancery Division, Atlantic County, Docket No. F-3520-10.

Fein, Such, Kahn & Shepard, P.C., attorneys for appellant (Joshua B. Sears, on the briefs).

Callaghan, Thompson & Thompson, P.A., attorneys for respondents Kostantinos and Maria Vezeriannis (Edward M. Thompson, on the brief).

Carl N. Tripician, attorney for respondent Mortgage Electronic Registration Systems, Inc.

Before Judges Nugent and Haas.

PER CURIAM

Plaintiff, Deutsche Bank National Trust Company, appeals from the Chancery Division order that entered summary judgment against it, dismissed its foreclosure complaint, and discharged its mortgage on real estate that defendants Kostantinos Vezeriannis and Maria Vezeriannis owned in Atlantic City. We affirm.

The facts are undisputed. On November 10, 2005, defendants Kostantinos Vezeriannis and Maria Vezeriannis (Borrowers) borrowed $325, 000 from Ameriquest Mortgage Company (Ameriquest). In exchange, they signed a promissory note and a mortgage (the Ameriquest mortgage) on property they owned in Atlantic City (the property). The Ameriquest mortgage was recorded in the Atlantic County Clerk's office on April 18, 2006.

Borrowers refinanced the property in January 2009 when they borrowed $375, 000 from defendant Lend America, signed a note evidencing the loan, and signed a mortgage (the Lend America mortgage) on the property to secure the loan. Settlement occurred on January 28, 2009. EAM Settlement Services, Inc. (EAM) was the settlement agent.[1] In that capacity, EAM accepted the obligation to pay from the loan proceeds the funds necessary to discharge the Ameriquest mortgage (the payoff funds). Two days earlier, Lend America had received a payoff letter with the payoff amount.

On January 26, 2009, Ameriquest's attorney-in-fact, Citi Residential Lending, Inc. (Citi)[2], telefaxed payoff instructions to Lend America (the pre-closing fax). A "payoff statement" was attached to the page containing the payoff instructions. The telefax provided in pertinent part:

Attached is the payoff statement you requested.
Wire required.
Please remit payoff funds via wire transfer
to:
Bank of ...

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