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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NOT FOR PUBLICATION WITHOUT THE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.

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