THE BANK OF NEW YORK MELLON, ETC. VS. DENNIS RINKER…

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5406-18T3

THE BANK OF NEW YORK
MELLON, f/k/a THE BANK
OF NEW YORK, AS
TRUSTEE FOR THE
CERTIFICATEHOLDERS OF
THE CWALT, INC.,
ALTERNATIVE LOAN TRUST
2007-HY7C MORTGAGE PASS-
THROUGH CERTIFICATES,
SERIES 2007-HY7C,

          Plaintiff-Respondent,

v.

DENNIS RINKER,

          Defendant-Appellant,

and

MRS. DENNIS RINKER,
his wife, DENISE EVANS
and SHORE MEMORIAL
HOSPITAL,

     Defendants.
____________________________
            Submitted September 21, 2020 – Decided October 14, 2020

            Before Judges Hoffman and Suter.

            On appeal from the Superior Court of New Jersey,
            Chancery Division, Atlantic County, Docket No. F-
            025425-17.

            Dennis Rinker, appellant pro se.

            Frenkel Lambert Weiss Weisman & Gordon, LLP,
            attorneys for respondent (Timothy Ziegler, on the
            brief).

PER CURIAM

      Defendant Dennis Rinker appeals the August 31, 2018 order granting

summary judgment to plaintiff and the May 20, 2019 final foreclosure judgment.

We are not persuaded by defendant's arguments that plaintiff lacked standing to

foreclose and did not comply with the Fair Foreclosure Act (FFA), N.J.S.A.

2A:50-53 to -68.

      In 2007, defendant signed a $146,000 note to Countrywide Bank, FSB

(Countrywide) for a residential property in Egg Harbor Township. Defendant

also executed a mortgage to Mortgage Electronic Registration Systems (MERS)

as nominee for Countrywide to secure the note and recorded it. In 2012, the

mortgage was assigned by MERS to The Bank of New York Mellon f/k/a The

Bank of New York, as Trustee for the Certificateholders of the CWALT, Inc.,


                                                                       A-5406-18T3
                                      2
Alternative Loan Trust 2007-HY7C Mortgage Pass-Through Certificates, Series

2007-HY7C (plaintiff) and recorded it (the 2012 Assignment). In 2015, MERS,

as nominee for Countrywide, assigned the mortgage to Bank of New York

Mellon, f/k/a the Bank of New York, as Trustee, on Behalf of the Holders of the

Alternative Loan Trust 2007-HY7C, Mortgage Pass Through Certificates Series

2007 HY7C (the 2015 Assignment), and recorded it. A third assignment was

executed in 2016 and recorded in 2017. It was a "gap assignment" to "complete

the chain" from the 2012 Assignment to the 2015 Assignment. This assignment

was from plaintiff to MERS as nominee for Countrywide (the 2016

Assignment).

        Defendant defaulted on the note in October 2011 and has not made

payments since then. Plaintiff filed the foreclosure complaint on November 9,

2017.    Defendant filed a contesting answer—where he denied most of the

allegations—except he admitted he defaulted on the note and that the whole

amount of it was due.        Defendant asserted several affirmative defenses,

including that plaintiff lacked standing.

        Plaintiff filed a motion for summary judgment. Relying on a certification

from Cynthia Morrow, a litigation foreclosure specialist employed by the

servicer of plaintiff, plaintiff claimed the original note was in its possession


                                                                         A-5406-18T3
                                        3
prior to filing the foreclosure complaint, the mortgage was assigned to it and

recorded prior to filing the foreclosure complaint, and that defendant defaulted

on the note and remained in default. Plaintiff alleged the NOI was sent by

regular and certified mail in December 2015.

      Defendant's cross-motion to dismiss alleged the statute of limitations

precluded enforcement and plaintiff did not have possession of the note.

Critically, in responding to plaintiff's Statement of Material Facts, defendant

acknowledged the NOI was sent by regular and certified mail on December 15,

2015, and that the 2015 Assignment was from MERS, as nominee for

Countrywide, into plaintiff. Defendant continued to dispute that plaintiff had

possession of the original note. Plaintiff responded by providing a bailee letter

that plaintiff's attorney had possession of the note more than thirty days prior to

filing for foreclosure.

      The August 31, 2018 order granted plaintiff's motion for summary

judgment, striking defendant's answer and allowing the case to proceed as

uncontested.    Defendant's cross-motion was denied.        A final judgment of

foreclosure was entered on May 20, 2019.

      On appeal, defendant argues the trial court erred and abused its discretion

by granting summary judgment and denying his cross-motion to dismiss. He


                                                                           A-5406-18T3
                                        4
contends the NOI was not mailed with a return receipt requested and that

plaintiff lacked standing to foreclose.

      "We review a grant of summary judgment de novo, applying the same

standard as the trial court." Woytas v. Greenwood Tree Experts, Inc., 

237 N.J. 501

, 511 (2019). A court should grant summary judgment "when 'the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that 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.'"

Ibid. (quoting Brill v.

Guardian Life Ins. Co. of Am., 

142 N.J. 520

, 528-29 (1995)); see also R. 4:46-2(c). Defendant's arguments lack merit.

      Defendant does not dispute he signed the note and mortgage, defaulted on

payment and has not paid the mortgage since October 1, 2011. Rather, he claims

plaintiff lacks standing to foreclose, alleging lack of possession of the note and

a problem with the assignments.

      A party seeking to establish its right to foreclose on a mortgage must

generally "own or control the underlying debt." Deutsche Bank Nat'l Tr. Co. v.

Mitchell, 

422 N.J. Super. 214

, 222 (App. Div. 2011) (quoting Wells Fargo Bank,

N.A. v. Ford, 

418 N.J. Super. 592

, 597 (App. Div. 2011)). In Deutsche Bank

Tr. Co. Americas v. Angeles, 

428 N.J. Super. 315

, 318 (App. Div. 2012), we


                                                                          A-5406-18T3
                                          5
held that "either possession of the note or an assignment of the mortgage that

predated the original complaint confer[s] standing," thereby reaffirming our

earlier holding in 

Mitchell, 422 N.J. Super. at 216

.

      Morrow certified the loan records were business records, she was

personally familiar with the subject loan and reviewed the account.        Her

certification complied with N.J.R.E. 803(c)(6). See New Century Fin. Servs.,

Inc. v. Oughla, 

437 N.J. Super. 299

, 326 (App. Div. 2014). She certified

plaintiff was in possession of the note—endorsed in blank 1—prior to filing the

complaint. The bailee letter also confirmed plaintiff's possession of the note

prior to filing the foreclosure complaint.

      Defendant disputed plaintiff's possession of the note in his response to

plaintiff's Statement of Material Facts.      However, he admitted the 2015

Assignment was from MERS, as nominee of Countrywide, to plaintiff. With

that admission, there was evidence the assignments ran from MERS to plaintiff

(the 2012 Assignment), from plaintiff to MERS as nominee for Countrywide

(the 2016 Assignment), and from MERS, as nominee for Countrywide, to

plaintiff (the 2015 Assignment). Thus, even if possession of the note were not



1
   This means the note "becomes payable to bearer and may be negotiated by
transfer of possession alone . . . ." N.J.S.A. 12A:3-205(b).
                                                                       A-5406-18T3
                                        6
established based on defendant's admission and Morrow's certification, we agree

with the trial court that plaintiff showed the mortgage was assigned to it and

recorded prior to filing the foreclosure complaint.       That was all that was

necessary to show standing.

      The FFA requires that a "[n]otice of intention to [foreclose] . . . shall be

in writing . . . sent to the debtor by registered or certified mail, return receipt

requested, at the debtor's last known address, and, if different, to the address of

the property which is the subject of the residential mortgage." N.J.S.A. 2A:50-

56(b). Mailing or in person delivery effectuates the notice.

Ibid. The NOI is

to

be sent before the foreclosure complaint is filed. N.J.S.A. 2A:50-56.

      Defendant argues the NOI was not sent certified mail, return receipt

requested as required by the statute. He did not raise this issue previously.

Generally, we "decline to consider questions or issues not properly presented to

the trial court when an opportunity for such a presentation is available unless

the questions so raised on appeal go to the jurisdiction of the trial court or

concern matters of great public interest." Selective Ins. Co. of Am. v. Rothman,

208 N.J. 580

, 586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 

62 N.J. 229

,

234 (1973)). Those standards are not met here.




                                                                           A-5406-18T3
                                        7
      If we were to consider the issue, defendant acknowledged in his answer

to plaintiff's Statement of Material Facts that the NOI was sent on December 15,

2015, by regular and certified mail. He did not claim lack of notice. If by chance

the NOI was not sent return receipt requested, he did not claim he was prevented

by this from curing the default. Presumably, the return receipt is for plaintiff to

prove that defendant received the NOI, a fact defendant has not denied.

      After carefully reviewing the record and the applicable legal principles,

defendant's further arguments are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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