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Wells Fargo Bank, N.A. v. Garner

Superior Court of New Jersey, Appellate Division

October 31, 2013

WELLS FARGO BANK, N.A., Plaintiff-Respondent,
v.
JAYNE A. GARNER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 2, 2013.

On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. F-35296-08.

David J. Khawam, attorney for appellant.

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

Before Judges Lihotz and Hoffman.

PER CURIAM.

Homeowners facing the loss of their residence to foreclosure have challenged the increasing use of centralized servicing agencies and the post-execution assignment of mortgage obligations to allow securitization of bundled mortgage investments. In recent court actions, mortgagors have attacked the standing of the named plaintiff, which was not the original mortgagee, to pursue foreclosure. In reviewing these matters, courts have clarified the proof requirements of an assignee when pursuing foreclosure. Other recent decisions have considered the timeliness of a homeowner's claim that an assignee lacked standing to pursue foreclosure in circumstances where the foreclosure complaint was unchallenged, yet the homeowner raised a standing argument as a last-minute effort to delay or prevent a sheriff's sale of the realty. See generally Bank of N.Y. v. Raftogianis, 418 N.J.Super. 323, 332-34 (Ch. Div. 2010). The matter on appeal involves these issues.

Defendant Jayne A. Garner appeals from the denial of her post-judgment, pre-sheriff's sale motions to vacate the judgment of foreclosure and dismiss the complaint. The court found defendant was not entitled to relief under any subsection of Rule 4:50-1.

Defendant argues plaintiff Wells Fargo Bank, N.A. lacked standing to file the foreclosure action claiming it did not own the note and mortgage on the date it filed the complaint. For the same reason, she maintains the notice of intent to foreclose was improperly issued by plaintiff.

We have considered these arguments in light of the record and applicable law. We affirm.

Defendant purchased the subject realty located on Wilbert Street in Pemberton on April 30, 2004. At closing, defendant executed and delivered a note to Aurora Financial Group, Inc. (Aurora) evincing her borrowing $152, 278. To secure payment of the debt, defendant executed a mortgage encumbering the subject property in favor of Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Aurora. The mortgage was recorded in the Burlington County Clerk's Office in Mortgage Book 09801, page 570, on May 26, 2004.[1]

Defendant defaulted on her monthly note payment on May 1, 2008, and failed to remit any payments thereafter. Plaintiff sent defendant a notice of intention to foreclose, identifying the months of non-payment and reciting the amount necessary to bring the loan current. The notice further warned continued non-payment would result in the commencement of foreclosure proceedings.

On September 5, 2008, MERS, as a nominee for Aurora, executed an assignment of the mortgage to plaintiff. The assignment was recorded in the Burlington ...


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