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Wells Fargo Bank, N.A. v. Vanderhall

Superior Court of New Jersey, Appellate Division

August 12, 2013

WELLS FARGO BANK, N.A. AS TRUSTEE FOR THE MLMI TRUST SERIES 2005-FFHI, Plaintiff-Respondent,
v.
EVON VANDERHALL, HIS/HER HEIRS, DEVISEES, PERSONAL REPRESENTATIVES AND HIS/ HER/THEIR OR ANY OF THEIR SUCCESSORS IN RIGHT TITLE AND INTEREST, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-25991-07.

Evon Vanderhall, appellant pro se.

Zucker, Goldberg & Ackerman, LLC, attorneys for respondent (Robert D. Bailey, of counsel and on the brief).

Before Judges Lihotz and Kennedy.

PER CURIAM

Defendant appeals from the Chancery Division's January 10, 2012 order denying her motion to vacate a December 10, 2009 final judgment of foreclosure entered against her with respect to her property in Willingboro Township. Defendant argues that the judge erred in denying the motion because "plaintiff had no standing to file the complaint." We disagree and affirm.

On October 1, 2007, Wells Fargo Bank, N.A., as "Trustee for the MLMI Trust Series 2005-FFHI" (plaintiff), filed a complaint for foreclosure against defendant, alleging that defendant had defaulted on a $174, 900 note she had given to First Franklin, a division of National City Bank of IN. The complaint further alleged that the note was secured by a mortgage on defendant's property and that plaintiff had been assigned the note and mortgage.

No answer to the complaint was filed and default was entered on December 21, 2007. The assignment of the note and mortgage to plaintiff, dated April 1, 2005, was recorded on October 3, 2008, and final judgment of foreclosure was entered on December 10, 2009.

A Sheriff's sale of the property was scheduled for December 1, 2011, and on November 29, 2011, defendant filed a motion to vacate the judgment of foreclosure. In her supporting certification, defendant claimed she did not file an answer to the complaint because she "inadvertently threw it away." She also claimed that the assignment to plaintiff was "forged" and that while she had filed for bankruptcy protection, the bankruptcy stay was vacated on January 27, 2009.

Defendant argued that plaintiff had no standing because the assignment by First Franklin to First Franklin Financial Corporation occurred after the assignment by First Franklin Financial Corporation to plaintiff. Plaintiff responded that its assignment was recorded on October 3, 2008, prior to final judgment, and that it, therefore, held a valid assignment of the note and mortgage.

The judge denied defendant's motion and held that plaintiff had shown neither excusable neglect nor a meritorious defense. This appeal followed. We shall first consider the issue of standing, and thereafter the issue of defendant's motion to vacate judgment.

"Standing refers to the plaintiff's ability or entitlement to maintain an action before the court." N.J. Citizen Action v. Riviera Motel Corp., 296 N.J.Super. 402, 409 (App. Div.), certif. granted, 152 N.J. 13 (1997), appeal dismissed as moot, 152 N.J. 361 (1998). Entitlement to sue requires a "sufficient stake in and real adverseness with respect to the subject matter, " and a substantial likelihood of harm to the plaintiff by an unfavorable decision. Stubaus v. Whitman, 339 N.J.Super. 38, 47 (App. Div. 2001) (internal quotation marks and citation omitted), certif. denied, 171 N.J. 442 (2002). "A lack of standing by a plaintiff precludes a court from entertaining any of the substantive issues presented for ...


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