In DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR HOME EQUITY MORTGAGE LOAN ASSET-BACKED TRUST SERIES INABS 2007-A, HOME EQUITY MORTGAGE LOAN ASSET-BACKED CERTIFICATES SERIES INABS 2007-A v. Keith Etling, Superior Court of New Jersey, Appellate Division decided April 22, 2021, 2021 WL 1569376, the Court answered the appeal question whether the trial court erred and abused its discretion by granting the plaintiff’s motion for summary judgment and denying defendant’s motion for reconsideration to vacate the summary judgment and dismiss because the record contained no evidence of mailing of the NOI to defendant.
In this case, MERS assigned the mortgage to IndyMac Bank, FSB, which recorded the mortgage assignment on August 4, 2008 and thereafter there were five separate loan modification agreements between 2008 and 2016. The defendant default on the last loan modification and on April 3, 2017, a notice of intent (NOI) to foreclose was mailed, return receipt requested, in accordance with the Fair Foreclosure Act. The record contained a copy of the NOI, which included the certified mail tracking number.
The mortgage was further assigned, and the plaintiff possessed the original note and mortgage at the time the complaint was filed. Defendant filed answer deny all allegations and raising various defenses, including lack of standing.
In the appeal, defendant did not dispute the plaintiff produced sufficient evidence to establish prima facie case of the right to foreclose. He contended that plaintiff failed to produce sufficient evidence of property service of an NOI, specifically that there was failure to produce any envelope certified mail receipt or tracking history for the NOI.
Under the FFA, a mortgagee must serve an NOI, “in writing, sent to the debtor by registered or certified mail, return receipt requested, at the debtor’s last known address, and, if different, to the address of the Property which is the subject of the residential mortgage” at least thirty days prior to commencing any foreclosure proceeding. N.J.S.A. 2A:50-56(a),(b).
On summary judgment, plaintiff provided (1) a photocopy of the NOI with the certified mail tracking number and (2) Hollis’ certification. Hollis certified that “[o]n April 3, 2017, [plaintiff’s loan servicer] mailed copies of the NOI to [defendant], at the mortgaged property … [in] JACKSON, NJ 08527-2427 via certified mail return receipt requested and regular mail.” The Court deemed this evidence is sufficient, particularly given defendant’s failure to oppose plaintiff’s summary judgement motion and defendant failed to identify any genuine issue of material fact to preclude summary judgment. Additionally, the denial for reconsideration was found to be within the sound discretion of the trial Court. Thus, the Appellate Court affirmed the decision.
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