THE BANK OF NEW YORK MELLON, ETC. VS. JEFFREY L. DAVIS(F-027418-15, BURLINGTON COUNTY AND STATEWIDE)
A-1006-16T1
| N.J. Super. Ct. App. Div. | Oct 16, 2017Background
- In 2007 the Davises borrowed $347,000 from Decision One, secured by a mortgage on their Mount Laurel home; they defaulted in 2010.
- In November 2011 MERS purportedly assigned the mortgage to The Bank of New York Mellon (plaintiff); recording was noted in the county clerk.
- Plaintiff filed a notice of intent to foreclose in February 2015 and a foreclosure complaint in August 2015; defendants answered and counterclaimed.
- Plaintiff moved for summary judgment supported by a certification from Rebecca Anderson of Ditech, who identified Ditech as plaintiff’s attorney-in-fact but did not produce a power-of-attorney or describe the note’s physical location or transfer history.
- The trial court granted summary judgment and struck defendants’ pleadings; the Appellate Division reviewed whether plaintiff established standing to foreclose through competent, authenticated evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to foreclose (ownership/control of the note) | Anderson’s certification and business‑record review show plaintiff acquired the note and mortgage before filing and is holder or non‑holder in possession | Certification lacks personal knowledge details, power of attorney, note location, delivery/transfer history; assignment/authentication deficient | Vacated summary judgment; plaintiff did not prove standing as a matter of law; remand for further proof/discovery |
| Sufficiency of Anderson’s certification under R. 1:6‑6 and N.J.R.E. 803(c)(6) | Anderson reviewed business records and had authority to certify records under business‑records exception | Certification fails to establish Anderson’s personal knowledge, identify records reviewed, or show Ditech’s written power of attorney | Certification insufficient—material facts not shown to be based on Anderson’s personal knowledge; documents not properly authenticated |
| Validity/authentication of MERS assignment | Assignment recorded; plaintiff relied on it to show transfer | Assignment not authenticated by affidavit based on personal knowledge; Decision One ceased operations in 2007 raising doubt whether MERS remained nominee when assignment occurred in 2011 | Assignment was not properly authenticated; trial court must determine whether MERS remained nominee or successor had authority to assign |
| Entitlement to summary judgment given evidentiary gaps | Endorsement in blank and business records demonstrate holder status; alternative non‑holder‑in‑possession theory asserted | Defendants entitled to discovery and depositions (Anderson, Dominique Johnson) to contradict plaintiff’s incomplete proof | Summary judgment inappropriate; factual issues remain and discovery permitted on standing/authentication |
Key Cases Cited
- Wells Fargo Bank v. Ford, 418 N.J. Super. 592 (App. Div. 2011) (requires affidavit/certification based on personal knowledge to authenticate transfer/possession for standing to foreclose)
- Bank of N.Y. v. Raftogianis, 418 N.J. Super. 323 (Ch. Div. 2010) (endorsement in blank permits transfer by delivery; possession issues and proof of delivery are material)
- Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995) (summary judgment standard—view facts most favorably to nonmoving party)
- Celino v. Gen. Accident Ins., 211 N.J. Super. 538 (App. Div. 1986) (trial court should not consider unauthenticated documents absent an affidavit based on personal knowledge)