Opinion
DOCKET NO. A-3247-14T3
06-01-2016
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR TRUMAN ACM GRANTOR TRUST 2013, SERIES 2013-1, Plaintiff-Respondent, v. ADRIANA G. GAROFALO, Defendant-Appellant, and WELLS FARGO BANK, N.A., Defendant-Respondent.
Michael Confusione argued the cause for appellant (Hegge & Confusion, LLC, attorneys; Mr. Confusione, of counsel and on the brief). Kiera McFadden-Roan argued the cause for respondent U.S. Bank National Association (Parker McCay, P.A., attorneys; Ms. McFadden-Roan, of counsel; Stacy L. Moore, on the brief). Respondent Wells Fargo, N.A. has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-10040-10. Michael Confusione argued the cause for appellant (Hegge & Confusion, LLC, attorneys; Mr. Confusione, of counsel and on the brief). Kiera McFadden-Roan argued the cause for respondent U.S. Bank National Association (Parker McCay, P.A., attorneys; Ms. McFadden-Roan, of counsel; Stacy L. Moore, on the brief). Respondent Wells Fargo, N.A. has not filed a brief. PER CURIAM
In this contested mortgage foreclosure action, defendant Adriana G. Garofalo appeals from the entry of final judgment contending plaintiff TruCap Grantor Trust 2010-2, Series 2013-1 failed to establish that its predecessor in this action, Wells Fargo Bank, N.A., possessed the note and mortgage when it instituted this action by filing its foreclosure complaint. Because defendant does not dispute she borrowed the funds from and gave a mortgage to Wells Fargo and subsequently entered into a loan modification with the bank seven months before the filing of the complaint, and nothing in the title records or this record suggests Wells Fargo relinquished control of the note and mortgage before validly assigning it during the pendency of the case, we affirm.
Defendant Garofalo borrowed $417,000 from Wells Fargo in April 2006, executing a thirty-year note and a non-purchase money mortgage on her condominium. In July 2009, Garofalo and Wells Fargo entered into a loan modification agreement. Four months later, Garofalo failed to make the payment due November 1, 2009, and the loan went into default. In December, Wells Fargo sent Garofalo a notice of intention to foreclose. It filed its complaint sixty days later in February 2010.
Wells Fargo several months later sold the note to TruCap, L.L.C., and subsequently assigned the mortgage to TruCap Grantor Trust 2010-2, which filed an amended complaint noting the transfer in December 2011. Garofalo eventually answered the amended complaint, and Judge Velazquez heard the parties' initial cross-motions for summary judgment in June 2013. The judge was not satisfied with the certification submitted in support of the motion regarding the new plaintiff's acquisition of the note and mortgage prior to filing its amended complaint and refused to enter summary judgment for either party.
Following additional discovery, including the deposition of an officer of the new plaintiff's loan servicer, the parties again filed cross-motions for summary judgment. Following oral argument, Judge Velazquez issued a written opinion granting plaintiff's motion and denying defendant's. The judge explained that when a mortgagee proved execution, recording and non-payment of the note and mortgage, as plaintiff had on the undisputed facts, it established a prima facie right to foreclose. Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 (App. Div. 1952). A mortgagor opposing that prima facie case on summary judgment cannot simply rely on denials, accusations, or claims that additional discovery might reveal facts not yet known, but must instead present facts to controvert the mortgagee's prima facie case. See Spiotta v. William H. Wilson, Inc., 72 N.J. Super. 572, 581 (App. Div.), certif. denied, 37 N.J. 229 (1962); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 530 (1995).
Judge Velazquez thoroughly explored Garofalo's claim that plaintiff had failed to demonstrate TruCap's standing to file the amended complaint. The judge reviewed the original note produced at oral argument, the supplemental certifications he had required from plaintiff's loan servicer as well as her deposition transcript before concluding he was satisfied she could certify that "[p]laintiff came into ownership and possession of the subject Note on September 10, 2010," well before it filed the amended complaint in this case. See Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597-600 (App. Div. 2011).
The judge acknowledged in his written opinion that the loan had since been assigned to U.S. Bank National Association, as Trustee for Truman ACM Grantor Trust 2013, Series 2013-1, the plaintiff in the caption. --------
After a searching evaluation of the motion record, the judge found plaintiff had established "that TruCap was the holder of the subject [n]ote and a valid assignment of mortgage when it filed its amended foreclosure complaint, and has the right to maintain and prosecute this foreclosure action." See Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323, 327-28 (Ch. Div. 2010).
The judge rejected defendant's cross-motion to dismiss for failure to provide discovery, as he found plaintiff had provided all discovery requested and produced the officer of the servicer on whose certifications plaintiff relied in support of its motion. Further, the judge found defendant had not filed a motion to compel discovery or even identified what further discovery she deemed necessary.
On appeal, Garofalo has shifted the focus of her attack on plaintiff's prima facie case. She now claims that plaintiff did not establish that Wells Fargo, the lender from which she borrowed the money in 2006, and with whom she negotiated a loan modification agreement in July 2009, had possession of the note and mortgage between the time of those transactions and the time Judge Velazquez found the bank validly assigned the note and mortgage to TruCap.
In response to our question at oral argument, defendant's counsel conceded that Garofalo has no proof that Wells Fargo ever relinquished control of its note and mortgage at any time during that period and has no proof that the bank was not in possession of them when it filed its foreclosure complaint. Given that Wells Fargo, Garofalo's original lender, instituted the foreclosure and all the indications in the record reflect it only transferred the loan subsequent to the filing of the complaint, and our review of the summary judgment record does not disclose that defendant raised this argument in opposition to summary judgment, as opposed to asserting TruCap's lack of standing to file the amended complaint, we dismiss it as without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
We affirm plaintiff's motion for summary judgment and the subsequent final judgment of foreclosure substantially for the reasons expressed by Judge Velazquez in his careful and comprehensive written opinion of March 18, 2014. Defendant has offered no basis for us to question the original lender's standing to file the foreclosure complaint at this late date. Cf. Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315, 319-20 (App. Div. 2012) (rejecting a standing argument raised only after the mortgagor had obtained the advantage of many years' delay).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION