Professional Documents
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FORECLOSURE UPDATE
2011 Seminar Material
The New Jersey Institute for Continuing Legal Education was created in 1961 to help lawyers and judges
increase their general professional competence, keep abreast of developments in the law, and become more
proficient in selected areas of practice. Since 1961, ICLE has served the educational needs of the New Jersey
bench and bar and continually strives to respond to their many and varied concerns.
A non-profit, completely self-supporting organization, ICLE is the joint venture of the New Jersey State Bar
Association, Rutgers - The State University of New Jersey, and Seton Hall University. Representing a merger
of the practicing bar and the academic community, the Institute is governed by an autonomous Board of
Trustees, which includes representatives of the State Bar Association, deans of the law schools and officers of
the participating universities.
The Institute presents more than 250 seminars each year throughout the State, offers audio and video
cassettes of seminars, markets software programs especially designed for the practicing attorney, and
publishes comprehensive practice manuals and lecture handbooks. Its programs and publications must be
financially self-supporting since ICLE is not subsidized in any way. The professional staff of attorneys and
other professionals, aided by a dedicated support staff, is headquartered at the New Jersey Law Center in
New Brunswick, along with the State Bar Association, the State Bar Foundation, and IOLTA.
The ingredients which contribute most to the stature of the Institute are the talent, time and effort expended by
the very best of New Jersey attorneys, representing every field of specialization and every type of practice.
The voluntary participation of practicing lawyers and judges as ICLE lecturers, authors, and advisors is
appreciated and encouraged, for without their assistance, and the continued support of those we serve, high
quality continuing legal education would not be possible.
The material contained in this publication is for educational purposes only and is not intended as a
substitute for the professional services an attorney would normally provide to a client, including up to the
minute legal research
Rosemarie Diamond is a Member of Phelan Hallinan & Schmieg, LLP with offices in
Mount Laurel, New Jersey, and Philadelphia, PA. Her practice areas include creditors’
rights, foreclosures, bankruptcy law, real estate law and collections.
Ms. Diamond is admitted to practice in New Jersey, Pennsylvania and New York.
She received her B.S. from Mary Washington College and her J.D. from Temple
University School of Law.
Bruce Levitt is a Founding Partner of Levitt & Slafkes, P.C. in South Orange, New
Jersey, a firm which practices almost exclusively in bankruptcy, commercial litigation and
residential real estate transactions. He handles both consumer and commercial
bankruptcy matters.
Admitted to practice in New Jersey, Mr. Levitt served for twelve years as a panel
bankruptcy trustee for the Office of the United States Trustee, where he administered
chapter 7 and 11 cases. He also served for six years on the Lawyers’ Advisory
Committee of the United States Bankruptcy Court for the District of New Jersey, where
he helped draft rules for bankruptcy law in the New Jersey Bankruptcy Courts. Mr. Levitt
serves on the Supreme Court of New Jersey District V-B Fee Arbitration Committee and
is a member of the National Association of Consumer Bankruptcy Attorneys. A Master
in the Bankruptcy American Inn of Court, he frequently lectures on bankruptcy topics and
his articles have appeared in the New Jersey Law Journal.
Mr. Levitt received his B.A., magna cum laude, from Fairleigh Dickinson University and
his J.D. from Emory University School of Law, where he served on the Board of Editors
of the Emory Law Journal. He served as a law clerk to a three-judge panel of the
Eleventh Circuit Court of Appeals.
A Superior Court Judge for 18 years, Judge McVeigh has served in Special Civil Part,
the Family Division and the Civil Division. She is Chair of the Probate Part Judges
Committee, Chair of the Special Committee to Study Guardianship Monitoring and a
member of the Judiciary Surrogates Liaison Committee. Judge McVeigh is a founding
member of the Robert Clifford American Inns of Court and serves on its Board of
Directors. She was an Adjunct Professor at Montclair State University.
Judge McVeigh is a graduate of Mary Washington College and Seton Hall Law School.
FORECLOSURE CASE SUMMARIES (April 2011)
Honorable Margaret M. McVeigh, P.J.Ch.
Kevin M. Wolfe, Esq.
Rosemarie Diamond, Esq.
Bruce Levitt, Esq.
Deutsche Bank National Trust Company, as Trustee v. Geeta P. Kollory, Unpublished Appellate
Division Opinion; DOCKET No. A‐1199508T2‐‐‐DECIDED JANUARY 7, 2010
The appellate court upheld the lower court’s summary judgment in favor of the plaintiff,
holding the lower court created a sufficient record of an undisputed default in forbearance
payments, leaving no doubt that the defendant was in default of the terms of the forbearance
agreement. Defendant had argued there was evidence that the payments were current and the
foreclosure was improper. The record includes a court transcript of oral argument during which
the court reviewed the payment history in detail to confirm the existence of the default.
Greenpoint Mortgage Funding, Inc. v. Doris Odoemene, et. al., Unpublished Appellate Division
Opinion; DOCKET NO. A‐4438‐08T2‐‐‐DECIDED JANUARY 28, 2010
The appellate court upheld the lower court’s denial of defendant’s motion to vacate summary
judgment. Defendant claimed the plaintiff lacked standing because the assignment of mortgage
from MERS into the plaintiff was not recorded until after the foreclosure complaint was filed.
The lower court rejected this argument because the plaintiff clearly illustrated that it was the
lender at origination and held the note at the time for foreclosure complaint was filed. MERS
had functioned as its nominee on the original mortgage. Moreover, MERS assigned the
mortgage into plaintiff prior to the entry of final judgment. Thus, plaintiff was the correct party
in interest at the time the foreclosure complaint was filed.
Emmanuel Odoemene v. Greenpoint Mortgage Funding, Inc., Unpublished Appellate Division
Opinion; DOCKET NO. A‐2659‐08T3‐‐‐DECIDED JANUARY 28, 2010
The appellate court upheld the lower court’s determination, on defendant’s motion for
summary judgment, that no private cause of action exists under the Fair Credit Reporting Act;
and, that even viewing the facts in the light most favorable to the plaintiff, there was no
evidence that the defendant had acted willfully of negligently in erring on the plaintiff’s credit
report. Also, the error had been corrected.
U.S. Bank, National Association as Trustee for CSMC Mortgage‐Backed Pass‐Through
Certificates, Series 2006‐4 v. Verna Thomas, et. al., Unpublished Appellate Division Opinion;
DOCKET NO. A‐3640‐08T2; DECIDED MARCH 23, 2010
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The Appellate Division upheld the lower court’s rejection of the defendants’ claim that they
were misled by the mortgage broker about the applicable interest rate for the loan. The court
found that the interest rate was clearly listed in the TILA disclosure statement and the note
itself; and, no evidence was presented to contradict the closing documents. Moreover, the
defendants made payments for two years without raising the issue of an erroneous interest rate.
The court also rejected the defendants’ argument that the property cannot be foreclosed because
the husband signed only the mortgage and not the promissory note. To the contrary, the
husband’s signature secures the property as collateral for the loan.
Ronald Patetta v. Wells Fargo Bank, N.A.; Unpublished Federal District Court Opinion, 2010
U.S. Dist. LEXIS 47233, DECIDED‐‐‐MAY 12, 2010
The district court applies the Rooker‐Feldman Doctrine in dismissing the plaintiff’s complaint.
Acknowledging that many of the plaintiff’s allegations could have served as defenses in the
foreclosure action, attempts to now rescind the mortgage transaction in the present matter are
barred because the claims are inextricably intertwined with the foreclosure judgment. Plaintiffs
had alleged that they did not receive a loan they originally bargained for, despite being
represented by counsel at closing, and that Argent, as lender and Dana Capital, as mortgage
broker, failed to make disclosures under the TILA, 15 U.S.C. Section 1601 and HOEPA, 15
U.S.C. Section 1639.
Avelo Mortgage, LLC v. Rodney Jeffery, Unpublished Appellate Division Opinion, DOCKET
NO. A‐0765‐08T1, DECIDED‐ JULY 15, 2010
The appellate court reversed the lower court’s voiding of the plaintiff’s mortgage, and
remanded the matter for further proceedings to determine the appropriate terms of a modified
mortgage that will restore the parties to their appropriate status. Defendants had rescinded the
plaintiff’s mortgage, but failed to return the proceeds. The court acknowledged that rescission
is a defense to foreclosure; however, the consumer must return the proceeds of the loan. If the
consume cannot do so, the court can judicially modify the mortgage and allow its enforcement.
One West Bank, FSB v. Maria Capo, et. al and Marva Coleman v. Maria Capo, et. al.,
Unpublished Trial Court Opinion, Docket No: F ‐5952‐09, Bergen County; DECIDED‐‐JULY 19,
2010
This case involves a mortgage rescue scan. Marva Coleman, the former owner, was able to
prove unequivocally that she was the victim of fraud by Maria Capo and other parties. The
court also acknowledged that the plaintiff was an innocent victim of the fraud but rejected the
assertion that the plaintiff was entitled to holder in due course status. The court declared that
the plaintiff’s mortgage, which was obtained through fraud, was void ab initio. Instead, the
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court granted the plaintiff an equitable mortgage on the property, in the name of the Marva
Coleman. The court fashioned the principal balance and interest rate for the equitable mortgage.
HSBC Bank, USA, National Association for the benefit of ACE Securities Corp. Home Equity
Loan Trust, Series 2006‐NC2 v. Lamiaa Gouda. et. al., Unpublished Appellate Division Opinion,
DOCKET NO. A‐1983‐09T2; DECIDED‐‐DECEMBER 17, 2010
The appellate court affirmed the lower court’s grant of summary judgment in favor of the
plaintiff, rejecting defendants’ arguments that (1) the note is non‐negotiable because it imposes
an obligation on defendants, in addition to payment, to notify lender of pre‐payment, in
violation of N.J.S.A. 12A:3‐104(a); (2) the plaintiff was not a holder in due course because it
knew or should have known about irregularities in the closing documents. The court finds no
legal authority in defendants’ argument that the note is not a negotiable instrument; and, the
circumstances of the closing do not imply a lack of good faith by the plaintiff sufficient to
overcome holder in due course status.
In the Matter of Kemp/John Kemp v. Countrywide Home Loans, Case No, 08‐18700‐JHW;
Adversary Number 08‐2448, (Bankruptcy Ct. D. N.J.) DECIDED NOVEMBER 16, 2010
Debtor filed an adversary action in bankruptcy court, challenging creditorʹs ability to enforce its
obligation because (1) the promissory note executed by the debtor was not properly endorsed to
the creditor; and (2) the creditor was not in possession of the note. The court expunged the
creditor’s secured claim. The court cited the New Jersey Uniform Commercial Code (“NJUCC”)
to define both what constitutes a negotiable instrument and what parties may exercise rights
under the negotiable instrument. The promissory note identified Countrywide Home Loans,
Inc. as the original lender. The note attached an unsigned allonge and was not endorsed to
Bank of New York. The loan was sold into a pool of loans with Bank of New York as Trustee
and Countrywide Home Loans Servicing LP as the master servicer. The pooling and servicing
agreement contained terms for endorsement of a note entering the pool. The mortgage was
assigned to Bank of New York as Trustee. The court determined that the note, a negotiable
instrument governed the NJ UCC, was not properly endorsed, nor in the physical custody of
the Bank of New York at the time the proof of claim was filed. Consequently, the creditor had
no basis on which to enforce the note.
Bank of New York, as Trustee for Home Mortgage Investment Trust 2004‐4 Mortgage Backed
Notes, Series 2004‐4 v. Michael J. Raftogianis, 418 N.J. Super. 323 (Ch. Div. 2010)., DECIDED
June 29, 2010
The court dismissed the foreclosure complaint without prejudice, holding that the plaintiff
failed to prove it had physical possession of the note and was the holder as defined under the
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New Jersey Uniform Commercial Code, at the time the foreclosure complaint was filed. In
refilling the complaint, the plaintiff must certify the facts as to when it took possession of the
note and its status as holder. The plaintiff was the trustee under a pooling and servicer
agreement; and, the pooling and servicing agreement contained specific instructions for
endorsement of the note. The decision contains extensive commentary on the securitization of
mortgages and the requirements for establishing a party as holder of the note. The court
rejected the argument that the presence of MERS as a nominee caused a separation of the note
and mortgage, rendering the mortgage unenforceable.
U.S. Bank National Association v. Mark Williams, Unpublished Appellate Division Opinion,
A‐6185‐08T2, LEXIS 175, DECIDED August 25, 2010
The trial court denied defendant’s motion to stay redemption. Defendant alleged he was
denied a meaningful opportunity to participate in New Jerseyʹs residential mortgage
Foreclosure Mediation Program (FMP) because he was unrepresented and not assisted by a
housing counselor. The appellate court ruled that Defendant did have an opportunity to
participate in mediation, including assistance of housing counselor as outlined by the FMP.
Defendant did not demonstrate the financial ability to qualify for a mortgage modification and
was not approved. The court noted that an agreement resulting in a loan modification is not a
requirement of the FMP if the borrower is not qualified. Participating in mediation translates
into a meaningful opportunity.
U.S. Bank Natʹl Assʹn v. Berg, Unpublished Appellate Division Opinion., A‐4696‐08T2, LEXIS
2413, DECIDED October 5, 2010
Defendant filed a motion to vacate default, Final Judgment, Sheriffʹs Sale, to void deed and stay
eviction approximately five months after the Sheriffʹs Sale. Defendant argued that Plaintiff
lacked standing to foreclose because it did not possess the note at the time the complaint was
filed. The lower court held that Plaintiff need only gain possession of the note before entry of
Final Judgment and denied the motion. The Appellate Division ruled that: (1) the Plaintiff had
possession of the note when the complaint was filed; (2) the Defendant acknowledged the
validity of the note/mortgage at various times; (3) Defendant did not move to vacate judgment
sale within a reasonable time.
Bank of America, NA, as successor by merger to LaSalle Bank, NA as Trustee for WaMu
Mortgage Pass‐Through Certificate Series 2006 ‐AR11 Trust v. Janett Alvarado, Unpublished
Trial Court Opinion, Docket: F‐47941‐08, DECIDED January 7, 2011
The court granted summary judgment in favor of the plaintiff, rejecting the defendant’s
argument that the plaintiff cannot enforce the note because the note was lost prior to its transfer
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to plaintiff. The court found that common law principles of unjust enrichment preclude the
borrower from receiving the windfall that would be created by a failure to deem the note
enforceable. The original note was certified as lost by the original lender. Also, the pass‐
through trust was intended to include acquisition of Defendantʹs note; and, Bank of America, as
successor has the right to enforce the obligation represented by the Lost Note. Also, Bank of
America is the assignee of the rights possessed by Washington Mutual, and the common law of
assignments is broad enough to encompass the circumstances set forth in this case.
Allen v. LaSalle Bank, N.A., 629 F.3d. 364 (2011) DECIDED January 12, 2011
Plaintiff filed a class action lawsuit against multiple parties alleging violation of 15 U.S.C.
§1692f(1) because the servicer’s attorney sent the borrower’s attorney a payoff letter which
contained allegedly excessive fees in connection with the foreclosure of her home. The district
court dismissed the complaint holding that communication from a debt collector to a
consumerʹs attorney should be analyzed under the standard of a competent attorney, and
because a competent attorney would have recognized the charges as being excessive, the
complaint failed to state a cause of action. The Third Circuit reversed the decision finding that
§1692f (1) was a strict liability statute which did not depend upon the nature of the recipient,
and that the letter to the consumerʹs attorney constituted an indirect communication with the
consumer herself.
Deutsche Bank National Trust Company as Trustee v. Wilson, Unpublished Appellate Division
Opinion Docket Number A‐1384‐09T1, Decided January 19, 2011
Appellate Division reversed summary judgment in favor of the foreclosing plaintiff. The
Appellate Division found the affidavits submitted in support of plaintiff’s motion for summary
judgment failed to establish the criteria for the admission of business records as exceptions to
the hearsay rule; the affidavits failed to attach the computer printouts in support of the
affidavit; and, the party executing the affidavit was employed by a company other than the
servicer, but signed under corporate authority, as an officer of the plaintiff.
U.S. Bank National Association, as Trustee for JP Morgan Acquisition Corp. 2006‐FRE2, Asset
Backed Pass‐Through Certificates, Series 2006‐FRE2 v. Arthur Spencer, et.al, Docket No. BER‐
10591‐10, Unpublished Trial Court Opinion, DECIDED March 22, 2011
The court dismissed plaintiff’s foreclosure complaint on defendant’s motion for summary
judgment because the plaintiff failed to prove it had physical possession of the note and
standing to pursue the foreclosure under the requirements of the New Jersey Uniform
Commercial Code; failed to present a prima facie case with evidence from a competent witness;
and, the Defendant raised defenses which would have required further exploration. The
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property was destroyed by fire and the proper application of insurance proceeds was disputed
between the parties, although the default of the mortgage was not in dispute.
Wells Fargo Bank, N.A., as Trustee v. Sandra A. Ford, ___ N.J. Super ___ (App. Div. 2011)
Docket No: A‐3627‐06T1, Approved for Publication; DECIDED January 28, 2011
The Appellate Division reversed the trial court’s grant of summary judgment in favor of the
plaintiff. The defendants challenged the plaintiff’s standing to bring the foreclosure action and
whether the plaintiff was the holder, as well as the holder in due course. The Appellate
Division found that the documents relied on in plaintiff’s motion for summary judgment were
not properly authenticated and did not support the grant of summary judgment. If properly
authenticated, the documents presented may support summary judgment. Once the plaintiff
presents adequate evidence that it is the holder, the question of whether it is the holder in due
course, and therefore not subject to certain defenses pertaining to origination, can be addressed.
U.S. Bank v. Gleason, Unpublished Trial Court Opinion, Docket No: F ‐5319‐08, Passaic
County; DECIDED March 15, 2011
The trial court dismissed the foreclosure because the plaintiff failed to prove standing, as
defined in the New Jersey Uniform Commercial Code, at trial. The plaintiff did not present a
witness qualified to testify as to whether the loan was properly secured into the trust, in
accordance with the terms of the pooling and servicing agreement, by delivery of possession of
the note. Nor could the witness explain why documents, specifically a series of executed
assignments, contradicted the documents previously presented to the Court. The contradictory
assignments raised questions about the chain of title. Given the inadequacy of the evidence,
despite the existence of an undisputed default, the complaint was dismissed.
The Bank of New York Mellon‐F/K/A The Bank of New York Trustee Under The Pooling and
Servicing Agreement Series 2004‐24 CB v. George C. Elghossain, __ N.J. Super ___ (Ch. Div.
2010) Docket No: F‐13402‐10, Decided December 23, 2010; Approved for Publication April 4,
2011 (J. Berman)‐‐DECIDED
The Court dismissed the foreclosure complaint without prejudice for failure to comply with the
Fair Foreclosure Act’s requirements pertaining to the pre‐foreclosure notice of intention to
foreclose. The Court viewed the statute as requiring strict compliance with its provisions.
Specifically, court found that the notice sent by the plaintiff’s servicer did not comply with the
statute because it listed only the servicer and the servicer’s address, omitting the name of the
lender and the lender’s address. The court pondered the question of whether the lender must
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also be the party to mail the notice, but concluded that the issue of who may mail the notice was
not before the court.
US Bank NA, as Trustee v. Guillaume, Unpublished Appellate Division Opinion, A‐
0376‐10T3 DECIDED April 20, 2011
The Appellate Division upheld the trial courtʹs denial of application to vacate default
judgment. The defendants alleged that they had a meritorious defense because the
plaintiff violated the Fair Foreclosure Act, specifically; the NOI listed the servicerʹs
address and not the lenderʹs address. The Appellate Division setout N.J.S.A. 2A:50‐56c,
to wit, the FFA notice (NOI) requires “[t]he name and address of the lender and the
telephone number of a representative . . . ”, but stated, ʺ[t]he NOI satisfied the purpose
of the FFA because ASC (the servicer) is the appropriate party for the Guillaumes to
contact to cure their default.”
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McVeigh Presiding Judge of the Chancery
•The Honorable Margaret M. McVeigh, Presiding Judge of the Chancery
•The Honorable Margaret M
Court for the County of Passaic
Kevin M. Wolfe, Esquire, Assistant Director, Administrative Office of the
•Kevin M. Wolfe, Esquire, Assistant Director, Administrative Office of the
Courts for the Civil Practice Division
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•Rosemarie Diamond, Esquire, Phelan Hallinan & Schmieg
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•Bruce Levitt, Esquire, Levitt & Slafkes, P.C.
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MORTGAGE FORECLOSURE
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