U.S. BANK, N.A., ETC. VS. LUBICA VILCEKOVAÂ (F-047074-14, HUDSON COUNTY AND STATEWIDE)
A-5575-15T1
| N.J. Super. Ct. App. Div. | Oct 13, 2017Background
- In 2007 Lubica Vilcekova took a $225,600 adjustable-rate mortgage from World Savings Bank, signed the note/mortgage and a loan application representing sufficient income, and later executed a 2009 loan modification.
- The loan was subsequently serviced/assigned through Wachovia and Wells Fargo; Vilcekova defaulted in 2011 after losing employment.
- Plaintiff U.S. Bank (as legal title trustee for Truman 2013 SC4 Title Trust) acquired the mortgage/note and recorded an assignment before filing the foreclosure complaint on November 10, 2014.
- Vilcekova answered, asserting affirmative defenses including predatory lending under the New Jersey Consumer Fraud Act (CFA) and lack of standing based on alleged Pooling and Servicing Agreement (PSA) violations; she sought discovery including depositions of plaintiff’s representative.
- The trial court granted plaintiff’s motion for summary judgment, quashed the deposition notice, struck the answer with prejudice, and entered final judgment; Vilcekova appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Vilcekova’s CFA/predatory-lending defense defeats foreclosure | Plaintiff: defense is unsupported, time-barred, and does not create a triable issue | Vilcekova: loan was predatory and unconscionable, so CFA claim bars foreclosure | Held: CFA defense is time-barred and unsupported on the merits; summary judgment for plaintiff affirmed |
| Whether Vilcekova may challenge plaintiff’s standing by asserting PSA noncompliance | Plaintiff: it possessed the original note and had an assignment recorded before suit, so it had standing | Vilcekova: plaintiff violated the PSA and she, as third-party beneficiary, can challenge ownership/standing | Held: Borrower lacks standing to enforce PSA; plaintiff had possession of the note and a pre-suit assignment, so standing exists |
| Whether summary judgment was premature because discovery was incomplete | Plaintiff: produced note and documents; further discovery would not change standing/merits | Vilcekova: additional discovery (deposition) needed to develop defenses | Held: Trial court did not err; further discovery would not alter outcome; motion to quash deposition and grant of summary judgment proper |
| Whether the foreclosure judgment is void vs. voidable when standing is challenged | Plaintiff: standing established by possession/assignment; judgment valid | Vilcekova: asserted lack of standing based on securitization/PSA defects | Held: Standing is not jurisdictional in NJ courts; judgment would be voidable if lack of standing, but here plaintiff had possession and pre-suit assignment, so judgment stands |
Key Cases Cited
- Angland v. Mountain Creek Resort, Inc., 213 N.J. 573 (standard for viewing facts on summary judgment)
- Brill v. Guardian Life Ins. Co., 142 N.J. 520 (summary judgment standard explanation)
- Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189 (de novo review of summary judgment)
- United States Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94 (rejecting unsupported predatory-lending defense in foreclosure)
- Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. Super. 214 (ownership/possession requirement for foreclosure standing)
- Deutsche Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315 (possession of the note or pre-suit assignment confers standing)
- Yvanova v. New Century Mortg. Corp., 365 P.3d 845 (Cal. 2016) (discussed but not dispositive; addressed wrongful-foreclosure claims tied to void assignments)