WELLS FARGO BANK, N.A. VS. TABITHA HASSANÂ (F-6136-15, ESSEX COUNTY AND STATEWIDE)
A-4611-15T3
| N.J. Super. Ct. App. Div. | Aug 8, 2017Background
- 2011: American Bank made a $289,143 loan to Tabitha Hassan secured by a Newark mortgage; MERS was named as nominee. The note was later endorsed and the mortgage assigned to Wells Fargo.
- Hassan defaulted on payments (first missed payment Sept. 1, 2014). MERS assigned the mortgage to Wells Fargo; assignment recorded Nov. 20, 2014. The note was also assigned to Wells Fargo.
- Wells Fargo filed a foreclosure complaint Feb. 20, 2015. Multiple attempts at personal service failed; process servers investigated tax records, USPS, phone directory, surrogate records, and spoke with occupants at two addresses.
- Because personal service was unsuccessful, Wells Fargo published notices in six newspapers and mailed notices to the Newark property. The clerk entered default June 11, 2015; the court entered final judgment and ordered sale Nov. 13, 2015 (amount due determined).
- Hassan moved to vacate the default judgment (Mar. 29, 2016), arguing (1) lack of personal service and (2) Wells Fargo lacked standing because it did not possess the mortgage when it filed. The motion was denied June 13, 2016; Hassan appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of service by publication | Wells Fargo conducted diligent inquiry at multiple sources and addresses, then published and mailed notices as permitted | Hassan contends plaintiff failed to effect personal service and thus publication was improper | Court held service by publication was proper after diligent efforts to find Hassan; trial court not an abuse of discretion |
| Standing to foreclose | Wells Fargo had standing because the mortgage assignment was recorded before the complaint and the note was endorsed/assigned to Wells Fargo | Hassan argued Wells Fargo lacked standing because it did not possess the mortgage at time of filing | Court held Wells Fargo had standing: mortgage assignment recorded Nov. 20, 2014 and complaint filed Feb. 20, 2015; allonge/endorsement showed possession of the note |
Key Cases Cited
- US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449 (2012) (standard of review and deference to trial court in default-judgment/service determinations)
- M & D Assocs. v. Mandara, 366 N.J. Super. 341 (App. Div. 2004) (service by publication is disfavored and requires a carefully scrutinized affidavit of diligent inquiry)
- Deutsch Bank Trust Co. Ams. v. Angeles, 428 N.J. Super. 315 (App. Div. 2012) (standing to foreclose requires possession of the note or a pre-complaint assignment of the mortgage)