Bank of America v LIMATO | NJ Appeals Court "lacked standing to pursue foreclosure as it could not demonstrate its status as the holder of the note"

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Bank of America v LIMATO | NJ Appeals Court “lacked standing to pursue foreclosure as it could not demonstrate its status as the holder of the note”

Bank of America v LIMATO | NJ Appeals Court “lacked standing to pursue foreclosure as it could not demonstrate its status as the holder of the note”

NOT FOR PUBLICATION WITHOUT THE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

DOCKET NO. A-4880-10T3

BANK OF AMERICA, N.A.,
Plaintiff-Appellant,

v.

MELISSA LIMATO,
Defendant-Respondent.
_______________________________
Argued March 21, 2012 – Decided July 2, 2012

Before Judges Cuff, Lihotz and St. John.

On appeal from the Superior Court of New
Jersey, Chancery Division, Bergen County,
Docket No. F-61880-09.

Barbara E. Riefberg argued the cause for
appellant (Shimberg & Friel, P.C.,
attorneys; Anne E. Walters, on the briefs).

Adam Deutsch argued the cause for respondent
(Denbeaux & Denbeaux, attorneys; Mr.
Deutsch, on the brief).

PER CURIAM

Plaintiff Bank of America, N.A., appeals from the
dismissal, without prejudice, of this foreclosure action against
defendant Melissa Limato. The Chancery judge concluded
plaintiff had not only failed to comply with the notice
provision of the Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-56,
but more importantly, lacked standing to pursue foreclosure as
it could not demonstrate its status as the holder of the note, a
non-holder with possession of the note, or that the original
note was lost, as required under the Uniform Commercial Code
(UCC), N.J.S.A. 12A:3-301. We affirm.

The following facts are taken from the record submitted by
the parties in support of their respective motions for summary
judgment, which we view in a light most favorable to plaintiff
as the non-moving party. Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 523 (1995).

On July 1, 2004, defendant and her late husband John
executed a thirty-year promissory note as the “Borrowers” to
America’s Mortgage Outsource Program (AMOP), which was
designated as the “Lender.” According to the terms of the
promissory note, Borrowers agreed to repay the principal amount
of $532,000, along with interest, fixed at 5.625% per annum rate
for the initial ten years and at an adjustable interest rate
thereafter. Simultaneously, defendant and John executed a
purchase money mortgage securing the debt through an interest in
the purchased realty. The mortgage was recorded in the Bergen
County Clerk’s Office.

Sometime after defendant executed the documents,1 two
endorsements were added to the last page of the promissory note.
The first appeared below the substantive note terms, but above
the Borrowers’ signatures, and was blank:

WITHOUT RECOURSE
PAY TO THE ORDER OF
____________________________________
WELLS FARGO BANK, NA
DBA AMERICA’S MORTGAGE OUTSOURCE PROGRAM
/s/JOAN M. MILLS
JOAN MILLS
VICE PRESIDENT

The second was placed in the same section as the Borrowers’
signatures:

WITHOUT RECOURSE
PAY TO THE ORDER OF
WELLS FARGO BANK, NA
BY /s/ JOAN M. MILLS Sign Original Only
Joan M. Mills, Vice President

The Mortgage stated it should be returned to “Wells Fargo Bank,
N.A.” (Wells Fargo).

Plaintiff maintains it purchased defendant’s loan
obligation. Thereafter, Wells Fargo continued to act as its
servicing agent, monitoring defendant’s loan, purportedly
pursuant to an August 23, 2004 Servicing Agreement.

Following defendant’s loan default, Wells Fargo issued a
Notice of Intention to Foreclose (NOI) on February 15, 2009.
Subsequently, NOIs were sent on August 30 and September 14,
2009. The amounts due varied on each of these NOIs, presumably
as a result of payments defendant made. Nevertheless, as of
September 14, 2009, defendant was three months behind in her
loan obligation.

On November 18, 2009, AMOP executed a written assignment of
the mortgage to plaintiff and this foreclosure proceeding was
initiated on November 24, 2009. The written assignment was
recorded on December 18, 2009 in the Bergen County Clerk’s
Office.

Defendant filed a contesting answer in which she asserted
separate defenses. Defendant did not dispute she executed the
note and mortgage or that she defaulted on the obligation.
However, she challenged plaintiff’s standing and compliance with
the Truth in Lending Act (TILA) and FFA. Similar affirmative
claims were raised in defendant’s counterclaim.

Plaintiff moved for summary judgment or, alternatively, to
strike the contesting answer and counterclaim. In support of
its request for summary judgment, plaintiff submitted a
certification by Anne E. Walters, its counsel, which, in
addition to the pleading filed by each party, attached the
promissory note without endorsements, the mortgage, the mortgage
assignment, NOIs, the cover page to the servicing agreement
between plaintiff and Wells Fargo, and the TILA disclosure
statement. Walters certified plaintiff was the “present holder
of the Note and Mortgage” and defendant “defaulted under the
terms and conditions of the . . . Note by not making the monthly
installment payments as required.” Walters did not specify the
date of default or how plaintiff became the holder of
defendant’s note and mortgage.

Defendant opposed plaintiff’s motion and filed a crossmotion
for summary judgment dismissal of plaintiff’s complaint.
Defendant contended no competent evidence showed the promissory
note was physically transferred to plaintiff prior to the filing
of the foreclosure complaint. In addition, defendant argued
plaintiff violated the FFA and TILA’s notice provisions because
the NOIs were not issued by or referred to the lender,
plaintiff. Defendant also moved to strike Walters’
certification, asserting she lacked the requisite knowledge to
identify the documents attached to her certification.

Plaintiff replied and filed a certification by Yolanda T.
Williams, an employee of Wells Fargo Home Mortgage, supporting
its position as holder on the promissory note. Williams
asserted she had “personal knowledge” regarding the promissory
note and mortgage at the time the foreclosure complaint was
initiated and was “very familiar and personally knowledgeable
regarding the documents that [were] kept in connection with
[defendant’s] residential mortgages.” Williams additionally
asserted Wells Fargo issued the three NOIs as the servicer of
the loan for plaintiff.

During oral argument, in response to defendant’s challenge,
plaintiff stated “Wells Fargo does” have actual possession of
the note. However, finding plaintiff provided no evidence of
possession of the promissory note or legal authority supporting
its assertion actual possession was not necessary, Judge Doyne
relisted the matter to permit plaintiff the opportunity to
supplement its proofs.

Plaintiff filed a supplemental brief addressing the issue
of possession of the promissory note, accompanied by the
certification of Kyle N. Campbell, a default litigation
specialist for Wells Fargo. Campbell certified he was “very
familiar and personally knowledgeable regarding the documents
that are kept in connection with residential mortgages” and
averred plaintiff “had actual physical possession of the [n]ote
on the date that the [f]oreclosure [c]omplaint was [f]iled,
April 21, 2010.”

Defendant replied, arguing Walters, Williams, and Campbell
failed to establish they held sufficient knowledge to support
the facts alleged and authenticate the evidentiary submissions.
Defendant argued any information Walters repeated was gleaned
from statements by her client. Williams, as an employee of
Wells Fargo, could not speak for plaintiff and failed to explain
the added endorsements made to the promissory note, which
differed from defendant’s copy as well as the copy attached to
Walters’ certification. Similar challenges were lodged against
Campbell’s certification. Campbell, as an employee for Wells
Fargo, did not explain the basis for his assertion that
plaintiff had actual possession of the promissory note on April
21, 2010, which he incorrectly certified as the date of the
foreclosure complaint. No party explained the relationship of
the servicing agreement between Wells Fargo and plaintiff, which
predated the defendant’s assignment of the promissory note and
mortgage by five years.

When the proceedings resumed, plaintiff maintained it had
possession of the promissory note relying on Campbell’s
“unequivocal assertion of possession[,]” which was premised upon
the documents previously submitted to the Court. Defendant
reasserted her challenges, attacking Campbell’s claimed personal
knowledge of the facts, which were unaccompanied by a basis
supporting such an assertion.

Following argument, Judge Doyne issued an order on April
25, 2011, which was accompanied by a twenty-four page rider
detailing the factual findings and legal conclusions supporting
the denial of plaintiff’s motion for summary judgment and the
summary judgment dismissal of plaintiff’s complaint, without
prejudice.

Judge Doyne found “Wells Fargo’s role as a servicer
remain[ed] unproven” as “[t]he servicing agreement defined
mortgage loans as a ‘Mortgage Loan . . . identified on the
Mortgage Loan Schedule,’ but the mortgage loan schedule was
blank.” Further, no explanation was offered to clarify why the
servicing agreement was blank or how the 2004 document
encompassed an assignment made in 2009.

Even accepting for the sake of argument that Wells Fargo
was plaintiff’s servicer of defendant’s loan, the judge
concluded the omission of the owner-lender’s disclosure in the
NOIs sent by Wells Fargo deviated from the FFA’s requirement
that the residential mortgage lender notified the borrower in
the NOI of its status as the lender. See N.J.S.A. 2A:50-
56(c)(11). In fact, when the NOIs were issued, the owner was
AMOP, as it had not assigned its interest in the promissory note
and mortgage to plaintiff until immediately prior to the
initiation of the foreclosure action.

In addition to the deficiencies in complying with the FFA’s
notice requirements, Judge Doyne concluded plaintiff did not
have standing to initiate the action. Examining the
certifications of Campbell, Williams, and Wilson, which alleged
plaintiff was in actual possession of the promissory note, the
judge found the documents amounted to nothing more than a “naked
assertion” as there was “no information . . . provided as to the
basis of this assertion.” Walters was an incompetent witness
“as she lacked personal knowledge of the assertions set forth in
her certification[.]” Further, although Williams and Campbell
may be competent witnesses, their certifications contain “no
competent admissible proofs of execution of the note, execution
and recordation of the mortgage, and nonpayment” and were rife
with hearsay. The judge ordered the dismissal of plaintiff’s
complaint without prejudice. This appeal ensued.

In conformity with well-established principles, we review
the motion court’s conclusions de novo because plaintiff’s
challenge on appeal strikes at the grant of summary judgment.
Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369,
382-83 (2010). We view the established facts in a light most
favorable to plaintiff, as the non-moving party, Estate of
Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 313
(App. Div. 2010), and afford no deference to the legal
conclusions reached by the trial judge, which are the subject of
our review, City of Atl. City v. Trupos, 201 N.J. 447, 463
(2010). Guided by Rule 4:46-2, we review the pleadings,
depositions, answers to interrogatories and affidavits on file
to discern whether there is a genuine issue of any material fact
in dispute, and, if not, whether defendant, as the moving party,
is entitled to judgment as a matter of law. Henry v. Dept. of
Human Servs., 204 N.J. 320, 330 (2010).

On appeal, plaintiff argues its proofs sufficiently show it
had standing to initiate the foreclosure action as the holder of
the note and mortgage or, alternatively, as a “nonholder in
possession.” We disagree.

“‘As a general proposition, a party seeking to foreclose a
mortgage must own or control the underlying debt.'” Wells Fargo
Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. Div. 2011)
(quoting Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-
28 (Ch. Div. 2010)). Absent “a showing of such ownership or
control, the plaintiff lacks standing to proceed with the
foreclosure action and the complaint must be dismissed.”
Deutsche Bank Nat’l Trust Co. v. Mitchell, 422 N.J. Super. 214,
222 (App. Div. 2011) (internal citation and quotations omitted).

Judge Doyne’s opinion thoroughly examined the facts of this
matter to determine whether plaintiff satisfactorily complied
with the provisions of N.J.S.A. 12A:3-301 and the related
defined terms used in Article III of the UCC, N.J.S.A. 12A:3-101
to -606, which governs the rights of parties to enforce a
negotiable instrument.2 The facts in this record support the
judge’s findings that despite an assertion plaintiff held the
original promissory note and was the assignee of the mortgage
when the foreclosure action was filed, no evidence explains how
plaintiff acquired ownership from AMOP. Even assuming Wells
Fargo was plaintiff’s servicing agent and somehow the 2004
servicing agreement governed a service relationship in 2009, no
fact speaks to the basis of the Wells Fargo employees’ claimed
personal knowledge regarding plaintiff’s entitlement to enforce
the instrument as a holder under N.J.S.A. 12A:1-201,3 or a
“nonholder in possession of the instrument who has the rights of
a holder[.]” N.J.S.A. 12A:3-301. Certifications from Wells
Fargo employees can attest only to facts occurring during the
servicing relationship, but not to plaintiff’s ownership status.4
Neither Campbell nor Williams held personal knowledge that
plaintiff could file a foreclosure action as the assignee of the
mortgage or holder of the negotiable promissory note because
their assertions or facts were based on assumptions or
inferences gleaned from the servicing file, which represents
inadmissible hearsay. N.J.R.E. 802.5

Finally, the bald assertion that Wells Fargo had possession
of the original note is fundamentally different from proof of
plaintiff’s status as holder of the negotiable promissory note.
Judge Doyne correctly found the record contained no
authentication of the requisite documents by an individual
having personal knowledge of the requisite facts. See Ford,
supra, 418 N.J. Super. at 599-600 (holding a mortgagee’s request
for summary judgment to establish itself as a holder of a
negotiable instrument must be based on properly authenticated
documents, which must be based on personal knowledge).

Lastly, plaintiff’s reliance on the broad terms of the
servicing agreement fails for the reasons identified in Judge
Doyne’s opinion. The servicing agreement predated the
assignment of the promissory note and contained no listing of
loans and instruments covered by its terms.

Plaintiff next asserts the NOIs, issued by its servicing
agent Wells Fargo, satisfactorily complied with the FFA. This
argument lacks merit as our Supreme Court specifically addressed
this question, rejecting an argument that the

notice of intention, listing the name of the
loan servicer rather than the lender,
substantially complied with N.J.S.A. 2A:50-
56(c)(11). We hold that N.J.S.A. 2A:50-
56(c)(11) requires that foreclosure
plaintiffs list on the notice of intention
the name and address of the actual lender,
in addition to contact information for any
loan servicer involved in the mortgage.
[US Bank N.A. v. Guillaume, 209 N.J. 449,
457-58 (2012).]

Plaintiff’s failure to notify the mortgagor of its status
as the lender is a deficiency, which when coupled with the
insufficient proofs regarding its claimed status as holder,
warranted dismissal of the foreclosure complaint without
prejudice. Judge Doyne’s reasoned exercise of discretion in
this regard will not be disturbed.

Affirmed.

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2 Responses to “Bank of America v LIMATO | NJ Appeals Court “lacked standing to pursue foreclosure as it could not demonstrate its status as the holder of the note””

  1. dani says:

    judge doynes in bergen county is one of the barvest and smarter judges that wont buy the lies and fraud of the banks and will demand from the banksters proof that they own the mortgage and the note.
    [there are ignorate judges in bergen county that are pro banksters and their fraud but this judge is too smart and cant be fooled easly]

  2. lies is all they tell says:

    THE JUDGES are starting to judicate. sad though these cases are all won on appeal after families lives are uptooted and have to move. we are gaining ground people!!!! please if you know anyone else with a JOan m mills atamp please email me ssssssister@yahoo.com. thank you

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