September 13, 2018
appeal from Superior Court of New Jersey, Chancery Division,
Bergen County, Docket No. F-001463-15.
L. Deutsch argued the cause for appellants (Northeast Law
Group, LLC, attorneys; Adam L. Deutsch, on the briefs).
N. Howley argued the cause for respondent (Sills Cummis &
Gross PC, attorneys; Joshua N. Howley, of counsel and on the
brief; Matthew L. Lippert, on the brief).
Judges Fuentes, Accurso and Moynihan.
Javier Torres appeals from a final judgment of foreclosure
entered following his February 1, 2010 default on a $650, 000
promissory note; the note, alleged by plaintiff Investors
Bank to be lost, was secured by a mortgage on defendant's
home. We are unpersuaded by defendant's arguments that
the motion judge: (1) misapplied the summary judgment
standard; (2) erred by failing to properly apply
N.J.S.A. 12A:3-309 when considering the lost note issue - and
accord the statute a textualist interpretation - and by
inferring facts in favor of the party moving for summary
judgment; (3) deferred the issue regarding the lost note to
determination on final judgment; and (4) erred by considering
an inadmissible lost-note affidavit. Consequently, we affirm.
judgment should be granted if the court determines
"there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a
judgment or order as a matter of law." R.
4:46-2(c). We review the motion judge's decision de novo
and afford his ruling no special deference. Templo Fuente
De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J.
189, 199 (2016). We "consider whether the competent
evidential materials presented, when viewed in the light most
favorable to the non-moving party" in consideration of
the applicable evidentiary standard, "are sufficient to
permit a rational factfinder to resolve the alleged disputed
issue in favor of the non-moving party." Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
challenges plaintiff's right to foreclose alleging
plaintiff never owned or controlled the underlying debt.
See Wells Fargo Bank, N.A. v. Ford, 418 N.J.Super.
592, 597 (App. Div. 2011). Plaintiff's assignor
CitiMortgage, Inc. (Citi) acquired the note and mortgage
through its merger with ABN AMRO Mortgage Group, Inc., the
originating lender. See Suser v. Wachovia Mortg.,
F.S.B., 433 N.J.Super. 317, 321 (App. Div. 2013)
(recognizing the right to enforce a mortgage can arise by
operation of ownership of the asset through mergers or
acquisitions). Citi later assigned the mortgage to plaintiff.
The note was lost prior to the assignment. A Citi
representative executed a lost-note affidavit which provided
that the note "was misplaced, lost or destroyed"
after execution by defendant and delivery to Citi, and
"after a thorough and diligent search, which consisted
of [searching] loan files and imaged documents," the
original note could not be located. The affidavit was executed
over a year prior to Citi's November 20, 2014 assignment
of the mortgage to plaintiff. Defendant contends the plain
language of N.J.S.A. 12A:3-309(a) prohibits plaintiff's
enforcement of the note because plaintiff did not possess the
note at the time it was lost.
follow our Supreme Court's statutory-interpretation
In construing any statute, we must give words "their
ordinary meaning and significance," recognizing that
generally the statutory language is "the best indicator
of [the Legislature's] intent." DiProspero v.
Penn, 183 N.J. 477, 492 (2005); see also
N.J.S.A. 1:1-1 (stating that customarily "words and
phrases shall be read and construed with their context, and
shall . . . be given their generally accepted meaning").
Each statutory provision must be viewed not in isolation but
"in relation to other constituent parts so that a
sensible meaning may be given to the whole of the legislative
scheme." Wilson ex rel. Manzano v. City of Jersey
City, 209 N.J. 558, 572 (2012). We will not presume that
the Legislature intended a result different from what is
indicated by the plain language or add a qualification to a
statute that the Legislature chose to omit.
DiProspero, 183 N.J. at 493.
On the other hand, if a plain reading of the statutory
language is ambiguous, suggesting "more than one
plausible interpretation," or leads to an absurd result,
then we may look to extrinsic evidence, such as legislative
history, committee reports, and contemporaneous construction
in search of the Legislature's intent. Id. at
[Tumpson v. Farina, 218 N.J. 450, 467-68 (2014)
(alterations in original).]
as our analysis involves more than subsection (a) of 3-309,
we are mindful of the Court's prescription that
[s]tatutes must be read in their entirety; each part or
section should be construed in connection with every other
part or section to provide a harmonious whole. When reviewing
two separate enactments, the Court has an affirmative duty to
reconcile them, so as to give effect to both expressions of
the lawmakers' will. Statutes that deal with the same
matter or ...