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NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEYAPPELLATE DIVISION
DOCKET NO. A-1212-10T2BANK OF NEW YORK AS TRUSTEE FORTHE CERTIFICATE HOLDERS CWABS,INC., ASSET-BACKED CERTIFICATES,SERIES 2006-23,
Plaintiff-Respondent,
v.
ALEXANDER T.J. CUPO,Defendant-Appellant,
MRS. ALEXANDER T.J. CUPO, WIFE OFALEXANDER T.J. CUPO AND CITIBANKSOUTH DAKOTA N.A.,
Defendants. ___________________________________
Argued October 5, 2011 - DecidedBefore Judges Fuentes, Graves and Koblitz.
On appeal from Superior Court of New Jersey,Chancery Division, Equity Part, Hudson County,Docket No. F-12104-07.
Gerald J. Monahan argued the cause for appellant.
Kristina G. Murtha argued the cause for respondent.
PER CURIAM
In this mortgage foreclosure action, defendant Alexander
Cupo appeals from the decision of the Chancery Division, General
February 28, 2012
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Equity Part, denying his motion to vacate default judgment and
dismiss the complaint filed by plaintiff Bank of New York, as
Trustees for the Certificate-Holders CWABS, Inc., Asset-Banked
Certificates, Series 2006-23. Defendant argues that the trial
court erred when it denied his motion because: (1) plaintiff did
not have physical possession of the promissory note at the time
it filed its complaint for foreclosure; (2) plaintiff did not
have standing to prosecute the foreclosure because the original
lender, Countrywide Home Loans, assigned the promissory note andmortgage to plaintiff thirty-nine days after the complaint was
filed; and (3) both plaintiff and its assignor Countrywide Home
Loans failed to satisfy the requirements under N.J.S.A. 2A:50-
56.
After reviewing the record before us, we reverse and remand
this matter to the General Equity Part for a hearing to
determine whether plaintiff has standing to file the complaint.
As we made clear in Deutsche Bank Nat'l Trust Co. v. Mitchell,
422 N.J. Super. 214, 224 (App. Div. 2011), a foreclosing
mortgagee must demonstrate that it had the legal authority to
enforce the promissory note at the time it filed the originalcomplaint for foreclosure. As correctly noted by defendant
here, the record shows that the original lender, Countrywide
Home Loans, assigned the promissory note and mortgage towww.S
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plaintiff on May 10, 2007, thirty-nine days after the complaint
was filed.
The following facts will inform our analysis of the issues
raised by the parties.
I
On December 22, 2006, defendant signed a promissory note to
Countrywide Home Loans, Inc., memorializing a $245,000 loan. To
secure payment of the note, defendant executed a mortgage to
Mortgage Electronic Registration Systems, Inc. (MERS), actingsolely as a nominee for Countrywide Home Loans, Inc. The
mortgage was recorded on January 11, 2007. Defendant failed to
make the first payment on the loan that was due on February 1,
2007. In fact, to date, defendant has not made any payments on
the loan. Pursuant to the terms of the loan, defendant
defaulted on March 1, 2007. Countrywide mailed defendant a
notice of intent to foreclose dated March 5, 2007.
On May 10, 2007, plaintiff Bank of New York filed a
complaint in foreclosure, seeking to sell the mortgaged lands to
satisfy the amount due. The complaint indicated that "[b]y
assignment of mortgage, Mortgage Electronic RegistrationSystems, Inc., acting solely as a nominee for Countrywide Home
Loans, Inc. assigned its mortgage to Bank of New York as Trustee
for the Certificateholders CWABS, Inc., Asset-Backedwww.S
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Certificates, Series 2006-03 which assignment has been sent for
recording in the office of the clerk of Hudson County."
Plaintiff served the summons and complaint on defendant on June
14, 2007.
The record shows that MERS assigned its mortgage to Bank of
New York as Trustee for the Certificateholders CWABS, Inc.,
Asset-Backed Certificates, Series 2006-23, on June 19, 2007.
The assignment was recorded on July 5, 2007. Plaintiff filed a
request to enter default against defendant on August 20, 2007.Plaintiff mailed a notice of intent to enter final judgment on
August 29, 2007. In this light, the matter was deemed
uncontested and the court entered final judgment by default on
November 15, 2007.
Despite the entry of final judgment, plaintiff and
defendant continued to discuss a possible settlement of the
suit. Sheriff sales were postponed a number of times during
these negotiations. 1 The parties eventually proceeded to
1 Defendant is an intellectually challenged young man who alsosuffers from a digestive disorder. His father John Cupo, arealtor, has assumed the responsibility to advocate for his son.The record thus includes a certification by defendant's fatherin support of defendant's application to adjourn a court-orderedsheriff's sale. According to John Cupo, after extensivenegotiations on behalf of his son with representatives ofCountrywide, the parties reached a tentative settlement in June2008, whereby Countrywide agreed to restructure defendant'soutstanding debt "by consolidating the loan balance, late fees
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mediation. After two sessions, the parties reached an apparent
impasse. Although a third session was scheduled for September
28, 2010, 2 defendant moved to vacate the default judgment and
dismiss plaintiff's complaint on August 26, 2010, arguing that
plaintiff lacked standing to prosecute the foreclosure action,
and failed to comply with the notice requirements in N.J.S.A.
2A:50-56. Plaintiff argued that defendant had not established
excusable neglect nor raised a meritorious defense. The trial
court denied defendant's motion to vacate the default judgmentas well as his subsequent motion for reconsideration.
II
We start our analysis by reaffirming certain bedrock
principles of appellate review. The decision to vacate a
judgment lies within the sound discretion of the trial court,
guided by principles of equity. Hous. Auth. of Morristown v.
Little, 135 N.J. 274, 283 (1994). Under Rule 4:50-1:
On motion, with briefs, and upon such termsas are just, the court may relieve a partyor the party's legal representative from a
(continued)and penalties with a[n] 11% interest rate going forward." JohnCupo expressed his frustration that despite "innumerableattempts" to inform the lender of his son's willingness toaccept this settlement, "Countrywide . . . failed to respond tothe acceptance of their proposal . . . ."
2 The parties met for a third and final mediation session onSeptember 28, 2010. The mediation ended without a settlement.ww
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final judgment or order for the followingreasons: (a) mistake, inadvertence,surprise, or excusable neglect; (b) newlydiscovered evidence which would probablyalter the judgment or order and which by due
diligence could not have been discovered intime to move for a new trial under [Rule]4:49; (c) fraud (whether heretoforedenominated intrinsic or extrinsic),misrepresentation, or other misconduct of anadverse party; (d) the judgment or order isvoid; (e) the judgment or order has beensatisfied, released or discharged, or aprior judgment or order upon which it isbased has been reversed or otherwisevacated, or it is no longer equitable that
the judgment or order should haveprospective application; or (f) any otherreason justifying relief from the operationof the judgment or order.
The trial court's decision to vacate a judgment under Rule
4:50-1 "will be left undisturbed unless it represents a clear
abuse of discretion." Hous. Auth. of Morristown, supra, 135
N.J. at 283 (citing Mancini v. EDS, 132 N.J. 330, 334 (1993)).To vacate a default judgment, the defendant "must show that the
neglect to answer was excusable under the circumstances and that
he has a meritorious defense." Marder v. Realty Constr. Co., 84
N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964).
Because a default judgment is not predicated on a determination
that plaintiff has met its burden of proof after providing a
defendant his or her day in court, the trial court should review
a motion to set aside a default judgment "with great liberality,
and every reasonable ground for indulgence is tolerated to thewww.S
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end that a just result is reached." Hous. Auth. of Morristown,
supra, 135 N.J. at 283-84 (quoting Marder, supra, 84 N.J. Super.
at 318-19).
Here, defendant's argument challenges directly the power of
the court to grant the relief requested by plaintiff.
Defendant argues that the default judgment obtained by plaintiff
is utterly void from its inception because plaintiff did not
have standing to prosecute the case at the time it filed the
foreclosure complaint.A mortgagee may establish standing by showing "that it is
the holder of the note and the mortgage at the time the
complaint was filed." Deutsche Bank, supra, 422 N.J. Super. at
224-25 (internal quotation marks omitted). Plaintiff must have
"presented an authenticated assignment" dated prior to its
filing of the original complaint. See id. at 225. Here, the
only evidence of the assignment is the assignment document dated
June 19, 2007, which is dated thirty-nine days after plaintiff
filed the complaint. As was the case in Deutsche Bank,
plaintiff here does not have standing as an assignee to
prosecute this foreclosure action.Because the record before us does not include a certified
copy of the original promissory note, we do not address
plaintiff's potential standing under the provisions of thewww.S
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Uniform Commercial Code (UCC) governing the transfer of
negotiable instruments. N.J.S.A. 12A:3-101 to -605. We thus
remand this matter to the trial court to conduct a hearing to
determine whether, 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.
Finally, defendant argues that plaintiff failed to provide
notice, pursuant to N.J.S.A. 2A:50-56(c), that defendant could
sell his home prior to going into foreclosure. We reject thisargument substantially for the reasons expressed by the trial
court.
N.J.S.A. 2A:50-56(c) requires, in relevant part:
The written notice shall clearly andconspicuously state in a manner calculatedto make the debtor aware of the situation
. . . .
(8) the right, if any, of the debtor totransfer the real estate to another personsubject to the security interest and thatthe transferee may have the right to curethe default as provided in this act, subjectto the mortgage documents[.]
[(Emphasis added).]
The plain language of the statute only requires inclusion of the
right to transfer the real estate if the mortgagor actually has
the right to transfer the real estate subject to the security
interest. If the mortgage documents do not provide that right,www.S
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the mortgagee does not have to include that language in its
notice of foreclosure.
Here, defendant's mortgage states:
If all or any part of the Property or anyInterest in the Property is sold ortransferred . . . without Lender's prior
written consent, Lender may requireimmediate payment in full of all sumssecured by this Security Instrument.
[(Emphasis added).]
Thus, although the mortgage permits defendant to transfer the
property, a nonconsensual transfer is treated as a default,
authorizing plaintiff to accelerate the payment of the
outstanding principal.
In this light, the trial judge gave the following
explanation for rejecting defendant's argument:
[T]he statute only requires that language tobe in [the notice under N.J.S.A. 2A:50-56(c)] if that right exists, and in thiscase, as I understand it, the mortgagespecifically provides that the defendantdoes not have the right to have anyone elseassume the debt or to transfer his interestin the property without the lender'sconsent.
. . . .
There is language in the notice of intent,as I read it . . . , if you are willing tosell your property, your home, in order toavoid foreclosure, it is possible that thesale of your home can be approved throughCountrywide, even if your home is worth lessthan what is owed on it.ww
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So it tells him he can convey his home, ithas to be approved by Countrywide, but tohave it sold to anyone or to have someoneelse assume the debt is precluded by virtue
of the mortgage instrument itself.So . . . that would actually be misleadingif that language were in there, because hedoesn't have that right. . . . [T]helanguage that you're saying should be in thenotice of intent is in violation of themortgage document itself.
We agree with the trial judge's analysis and ultimate
conclusion. N.J.S.A. 2A:50-56(c) does not require the lender tonotify the borrower of his or her right to transfer the
property; it only requires notice of the right to transfer the
property subject to the mortgage. Here, the mortgage document
prohibits transfer of the property subject to the mortgage
without consent. Under these circumstances, plaintiff was not
required to provide defendant with notice of an unequivocal
right to transfer the property.
Reversed on the issue of standing and remanded for such
further proceedings as may be warranted. We do not retain
jurisdiction.
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