NATIONSTAR MORTGAGE, LLC VS. IRINA IUDINAÂ (F-4401-14, MIDDLESEX COUNTY AND STATEWIDE)
A-2993-15T1
| N.J. Super. Ct. App. Div. | Aug 4, 2017Background
- Nationstar Mortgage sued Irina Iudina for foreclosure after she defaulted on a 2007 mortgage; Nationstar received an assignment recorded June 21, 2013.
- Defendant stopped payments in 2011; plaintiff sent a Notice of Intent to Foreclose in August 2013 and filed the complaint in February 2014.
- At trial the only disputed issue was who held the note; the court credited plaintiff’s evidence that Freddie Mac assigned the mortgage to Nationstar and that Nationstar obtained the original note before filing.
- The trial court struck Iudina’s answer and counterclaims, entered final judgment of foreclosure July 14, 2015, and returned the matter to the Foreclosure Unit.
- The court granted Iudina relief and dismissed the complaint on November 20, 2015, but later vacated that order after plaintiff moved to set it aside; after argument the court denied Iudina’s motion to vacate the July 14, 2015 judgment on February 18, 2016.
- Appellate court affirmed all orders except it remanded to correct a clerical error: the denial date should be February 18, 2016 (not January 22, 2016).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing/possession to foreclose | Nationstar had a valid assignment and possessed the original note before filing, so it had standing to foreclose | Nationstar lacked valid assignment/standing; newly produced Freddie Mac Form 1036 shows problems with plaintiff’s proof | Nationstar had either possession of the note or a valid assignment predating the complaint; Form 1036 was irrelevant to standing; judgment proper |
| Timeliness / right to vacate November 20, 2015 order | Plaintiff moved to vacate the November 20 order (not for reconsideration) and timely sought relief after counsel change | Iudina argued plaintiff’s motion was untimely and court improperly enlarged reconsideration period | Plaintiff’s motion was a proper motion to vacate; the timeliness objection lacked merit |
| Procedural fairness / disposition date error | Court properly vacated the November 20 order, rescheduled argument, and eventually denied Iudina’s motion after oral argument | Iudina contended the court signed an order denying relief on January 22, 2016 before argument, depriving her of due process | Appellate court found the January 22 date was clerical error; corrected order must reflect denial on February 18, 2016; no reversible due-process violation shown |
| Relevance of newly discovered evidence (Form 1036) | Evidence of assignment and physical possession of the original note at trial established standing; Form 1036 is unrelated to proof of possession for foreclosure | Iudina asserted Form 1036 undermined Nationstar’s entitlement to foreclose | Trial court correctly concluded Form 1036 was not relevant to foreclosure standing; denial of vacatur was proper |
Key Cases Cited
- Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214 (App. Div. 2011) (possession of the note or an assignment predating the complaint confers standing to foreclose)
- Wells Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592 (App. Div. 2011) (party must own or control the debt to foreclose)
- Deutsche Bank Trust Co. Americas v. Angeles, 428 N.J. Super. 315 (App. Div. 2012) (reaffirming that either possession of the note or a timely assignment establishes standing)
- Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323 (Ch. Div. 2010) (discussing ownership/control requirement in foreclosure matters)