Bank of New York v. Laks
27 A.3d 1222
| N.J. Super. Ct. App. Div. | 2011Background
- Defendants Laks and Einhorn mortgaged their Lakewood residence; MERS held the mortgage as nominee for the lender and later assignments placed the note with plaintiff Bank of New York as trustee.
- Countrywide Home Loans, as loan servicer, mailed a pre-complaint notice of intention to foreclose in August 2008 that did not name the lender or provide its address.
- The notice stated Countrywide acted on behalf of the owner but failed to identify the owner/lender, and it did not provide plaintiff’s address.
- Forty-two days after the notice, plaintiff filed a foreclosure complaint; defendants answered challenging the notice’s adequacy and standing.
- The trial court found the notice adequate and the plaintiff had standing; later, plaintiff produced a different note with additional indorsements, yet standing remained.
- The appellate issue is whether failure to identify the lender in the notice warrants relief and, if so, the appropriate remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the notice of intention identified the lender as required by N.J.S.A. 2A:50-56(c)(11). | Laks | Laks | Yes; notice violated c(11). |
| What remedy follows a violation of the notice requirement under the Fair Foreclosure Act. | Remedy should be dismissal with prejudice. | Remedy should be re-service of proper notice. | Dismissal without prejudice. |
| Whether plaintiff properly proved standing to foreclose. | Note ownership established by indorsements. | Standing not proved by record. | Remnant issue noted for potential future actions; guidance given. |
Key Cases Cited
- Cho Hung Bank v. Ki Sung Kim, 361 N.J. Super. 331 (App.Div. 2003) (remedial approach for act violations varied among panels)
- EMC Mortgage Corp. v. Chaudhri, 400 N.J. Super. 126 (App.Div. 2008) (dismissal without prejudice as remedy emphasized by some panels)
- Bank of N.Y. Mellon v. Elghossain, 419 N.J. Super. 336 (Ch. Div. 2010) (advocated dismissal without prejudice; notice defects)
- Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592 (App.Div. 2011) (standing evidence guidance for foreclosure actions)
- Sroczynski v. Milek, 197 N.J. 36 (2008) (judicial consideration of whether issues raised pre-judgment apply to judgments)
- Kim v. Cho Hung Bank, 361 N.J. Super. 331 (App.Div. 2003) (noting appellate division approaches to remedies for notice violations)