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Investors Bank v. Torres

Superior Court of New Jersey, Appellate Division

November 16, 2018

INVESTORS BANK, Plaintiff-Respondent,
JAVIER TORRES, Defendant-Appellant, and MRS. JAVIER TORRES, his wife, and DORA M. DILLMAN, Defendants.

          Argued September 13, 2018

          On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-001463-15.

          Adam L. Deutsch argued the cause for appellants (Northeast Law Group, LLC, attorneys; Adam L. Deutsch, on the briefs).

          Joshua 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).

          Before Judges Fuentes, Accurso and Moynihan.

          MOYNIHAN, J.A.D.

         Defendant 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;[1] (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.

         Summary 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).

         Defendant 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.[2] 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.

         We follow our Supreme Court's statutory-interpretation cynosure:

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 492-93.
[Tumpson v. Farina, 218 N.J. 450, 467-68 (2014) (alterations in original).]

         Inasmuch 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 ...

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