In U.S. Bank Trust National Association as Trustee of Cabana Series V Trust v. James L. McElwee, Jr., et al., Docket No. A-2395-23, the Superior Court of New Jersey, Appellate Division affirmed the trial court’s orders granting summary judgment in favor of the Plaintiff and denying Defendant Jerome McElwee’s application to dismiss the foreclosure action. The Court also upheld a February 2024 final judgment of foreclosure against McElwee. The trial-level decisions were issued by a judge of the Chancery Division in Morris County, following motion practice in mid-2023 and early 2024.

The case originated from a 2009 mortgage loan. The loan was later assigned to the Plaintiff, who began foreclosure proceedings in 2022. McElwee contested the foreclosure by claiming that he had not defaulted and had not received the required Notice of Intention to Foreclose. The trial court found that the Plaintiff established all necessary elements for foreclosure, including default, standing through possession of the original note, and proper service of notice. The Appellate Division reviewed these rulings de novo and found no error.

A central issue on appeal was whether the Plaintiff complied with the Fair Foreclosure Act (FFA), particularly concerning how the notice was mailed. The Court rejected McElwee’s arguments that the notice was invalid because it was sent by a third-party and that the certified mail receipt, signed “CV-19,” was insufficient. The Court clarified that nothing in the FFA precludes a lender from sending the notice through a third party mailer, the FFA does not require a specific signature and that mailing to the borrower’s address by both certified and regular mail is adequate, regardless of whether the notice is received by the borrower.

The Appellate Division concluded that McElwee failed to raise any material factual disputes and did not substantiate his claim that the foreclosure amount was incorrect. As a result, the rulings of the trial court were upheld in full. The decision reinforces that technical compliance with the FFA is sufficient for foreclosure to proceed and highlights the limited grounds available for borrowers to challenge notice and loan default once properly documented.

The Plaintiff was represented on appeal by Quenten E. Gilliam of Friedman Vartolo LLP.