DEUTSCHE BANK vs. MITCHELL, BETHEA | NJ Appeals Court Reverse/Remand "ASMT FAIL, AFFIDAVIT FAIL, NO STANDING, POSSESSION OF NOTE"

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DEUTSCHE BANK vs. MITCHELL, BETHEA | NJ Appeals Court Reverse/Remand “ASMT FAIL, AFFIDAVIT FAIL, NO STANDING, POSSESSION OF NOTE”

DEUTSCHE BANK vs. MITCHELL, BETHEA | NJ Appeals Court Reverse/Remand “ASMT FAIL, AFFIDAVIT FAIL, NO STANDING, POSSESSION OF NOTE”

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION

DOCKET NO. A-4925-09T3

DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE FOR LONG
BEACH MORTGAGE LOAN TRUST
2006-3,
Plaintiff-Respondent,

v.

CONSTANCE LAWRENCE MITCHELL
and GENERAL MOTORS ACCEPTANCE
CORPORATION,
Defendants,

and

JACQUELINE BETHEA,
Defendant-Appellant

EXCERPTS:

Deutsche Bank
could have established standing as an assignee, N.J.S.A. 46:9-9,
if it had presented an authenticated assignment indicating that
it was assigned the note before it filed the original complaint.
The only evidence presented by Deutsche Bank was to the
contrary. We reverse the grant of summary judgment and remand
for a hearing to determine whether or not, before filing the
original complaint, plaintiff was in possession of the note or
had another basis to achieve standing to foreclose, pursuant to
N.J.S.A. 12A:3-301.

Although our reversal of summary judgment resolves this
appeal, we think it important to note that the proofs presented
by plaintiff in support of summary judgment were inadequate. In
Ford, supra, we explained that “[a] certification will support
the grant of summary judgment only if the material facts alleged
therein are based, as required by Rule 1:6-6, on personal
knowledge.” 418 N.J. Super. at 599. We held that the trial
court should not have considered an assignment that was not
“authenticated by an affidavit or certification based on
personal knowledge.” Id. at 600.

In support of its motion for summary judgment, Deutsche Bank
provided a certification of an attorney dated January 22, 2009,
which stated that “[p]laintiff is the present holder of the Note
and Mortgage. A copy of the Assignment of Mortgage is attached
as Exhibit B.” The attorney certified that his knowledge was
based upon his “custody and review of the computerized records
of plaintiff which were made in the ordinary course of business
as part of plaintiff’s regular practice to create and maintain
said records and which were recorded contemporaneously with the
transactions reflected therein.” This attorney certification
does not meet the requirement of personal knowledge we
articulated in Ford. Attorneys in particular should not certify
to “facts within the primary knowledge of their clients.”7 See
Pressler & Verniero, Current N.J. Court Rules, comment on R.
1:6-6 (2011); Higgins v. Thurber, 413 N.J. Super. 1, 21 n.19
(App. Div. 2010), aff’d, 205 N.J. 227 (2011).

In support of its motion for final judgment, Deutsche Bank
provided a certification of proof of amount due by a specialist
of JP Morgan Chase Bank, N.A., servicer for Deutsche Bank, dated
June 9, 2009, stating, in part, that “[p]laintiff is still the
holder and owner of the aforesaid obligation and Mortgage.”
However, this certification does not make any mention of the
assignment of the mortgage or how the signor knows that Deutsche
Bank became the holder of the note.

At oral argument in the trial court, plaintiff’s counsel
indicated that plaintiff had possession of the note prior to
obtaining the assignment. Deutsche Bank did not present any
certification based on personal knowledge stating that it ever
possessed the original note.

We vacate the sheriff’s sale, the final judgment and the
order granting summary judgment and remand to the trial court
for further proceedings in conformance with this opinion.
Reversed and remanded.

[ipaper docId=62021680 access_key=key-4mudnf5uqqv6rtls971 height=600 width=600 /]

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2 Responses to “DEUTSCHE BANK vs. MITCHELL, BETHEA | NJ Appeals Court Reverse/Remand “ASMT FAIL, AFFIDAVIT FAIL, NO STANDING, POSSESSION OF NOTE””

  1. Eugene Villarreal says:

    Holy Moly ! This is the same judge(temporarily assigned to the appellate court) who delivered this opinion for the appellate court and now has seen the light of justice and is fact following the New Jersey statues who last year even questioned the merger in trial court that the foreclosure mill Fein Such Kahn & Sheppard for Chase Home Finance, LLC (the Servicer on the mortgage)that had stated that the merger had occured prior to early 2009. As we all know now, the OCC granted permission for the merger as of June 2011 with JP Morgan Chase Bank, N.A. (the pretender/lender on the mortgage) as the successor by merger entity. As of June 16, 2011 Chase Home Finance, LLC (CHF) is no longer in business in the state of New Jersey.
    In court and court papers, the mill attorneys stated that because CHF was the successor by merger with JP Morgan Chase Bank, N.A., it did not need an assignment to CHF. She denied a Motion to Vacate a Summary Judgment because accepted the mill attorney word that they did have STANDING even though there was no evidence of a merger and the attorney also stated that he was not prepared and 1 1/2 hours late. He was most likely thrown in at the last minute after the judge had called the firm and she DID NOT want the trial via phones(?). Sure.
    The New Jersey statues state that if the Plaintiff is not the same as the (pretenter)/lender onthe Complaint, a complete chain of asignments to title must be produced to prove STANDING. Now, after all this years in court she sees the light. She even recites New Jersey (and Ohio) court cases which are very ,very few that deal with STANDING, Such as Ford, Raftqoianis. She forgot about Tracey Wilson, but included Higgins v. Thurber. Ironically, judge Thurber now seats on the New Jersey bench because she was nominated to the bench by a politician she helped get elected. Thurber was sued by Higgins for legal malpractice regarding to an estate. Thurber was assigned to the a foreclure case in Bergen County, New Jersey where she stupidly ruled against a Bogota, New Jersy homeowner saying that the Plaintiff(bank) did not need to produce a mortgage note. She’s now assigned back to family court. She doesn’t belong to be sitting on the bench at all.
    judge Koblitz’s aboutface decisions should be good news but this doesn’t makeup for the last three or four, five years that she has slammed the door shut on homeowners. Like the rest of the fraudsters, the judges have to pay for their crimes. Homeowners didn’t commit fraud or crimes.

  2. George says:

    My case gets heard Friday December 16th 2011 – I filed Pro Se with the help of Lsnjlaw.org non profit group and reading Attorney Jeff Barnes cases. Deutsche Bank did mortgage assignment day after they filed foreclosure against me and used a known Robo signer,Tamara Price. I am also fighting the letter of intent to foreclosure that was sent by City Bank and not Deutsche Bank. Deutsche sent me there response and it states (There is no requirement that plaintiff plead that it held note as of date of filing of complaint, they quote an old case. On letter of intent they claim, I am not entitled to fair foreclosure act because I myself am not on mortgage just my wife – I filed the complaint and my wife and I signed it, we are on all complaints filed by Deutsche Bank were thay are suing me and her both. They are saying that since I myself filed for a fee waiver of $135 that it cost to file my case I am not entitled.

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