SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-0395- 22 WELLS FARGO BANK, N.A. AS TRUSTEE FOR BANC OF AMERICA FUNDING CORPORATION MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007- 5, Plaintiff-Respondent,

v. MARSHALL ANTHONY, a/k/a MARSHALL C. ANTHONY, a/k/a MARSHALL COREY ANTHONY, Defendant-Appellant, and MRS. ANTHONY, SPOUSE OF MARSHALL ANTHONY, a/k/a MARSHALL C. ANTHONY, a/k /a MARSHALL COREY ANTHONY, TASCHA ANTHONY, MARINA DISTRICT DEVELOPMENT CO LLC, Defendants.

________________________________ NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 0395

- 22 Submitted January 22, 2024

– Decided May 17, 2024 Before Judges Gilson and Berdote Byrne. On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. F- 009606

- 19. Marshall Anthony, appellant pro se. Robertson, Anschutz, Schneid, Crane & Partners, PLLC, attorneys for respondent (Charles H. Jeanfrea u, on the brief).
PER CURIAM Defendant, Marshall Anthony, 1 appeals from an order dismissing defendants' cross-motion to dismiss the complaint f or failure to state a cause of action pursuant to Rule 4:6 -2(e), claiming plaintiff lacked standing to foreclo se. Because we conclude defendant s' motion was procedurally untimely, and plaintiff had standing to foreclosure, we discern n o reason to disturb the trial court's order and affirm.
I. On December 29, 2006, Marshall Anthony and Tascha A nthony (defendants) executed a mortgage in favor of Bank o f America, N.A. (BoA) in

1 Tascha Anthony did not join in this appeal.3 A- 0395

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the amount of $372,000 for property located in Scotch Plains, NJ 07076 (the property). To secure the mortgage, defendants exec uted and delivered a note to BoA the same day

. The mortgage was recorded on January 10, 2007 in U nion County, NJ. On March 29, 2007, BoA assigned the mortgage to Wel ls Fargo Bank, N.A., (plaintiff), in the care of Specialized Loan Servicing, LLC (Specialized Loan). Tron P. Nash, an authorized of ficer of BoA signed the assignment on behalf of BoA. The assignment was re corded in U nion County

on April 24, 2013.
On January 11, 2018, defendants and Specialized Loan, plaintiff's mortgage loan servicer, entered into a loan modific ation agreement. The loan modification agreement was also recorded in the Union County Clerk’s Office on January 30, 2018. On October 14, 2018, Specialized Loan delivered a N otice of Intent to Foreclose (Notice) to defendants, alerting them the y had failed to pay their monthly payments over the course of several months, advising them they could cure their default by making a payment in the amoun t of $27,622.20 by November 16, 2018, and providing notice of the lend er's intention to file a foreclosure action. The Notice advised that plaint iff was the current owner of the loan and Specialized Loan, as the mortgage serv icer, represented plaintiff.4 A- 0395

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On May 23, 2019, plaintiff filed a foreclosure comp laint against defendants. Plaintiff's three-count complaint alle ged defendants defaulted on the loan , fail ed to remit payment after default, and deprived plain tiff of its right to possession of the property. Plaintiff demanded acceleration of the whole unpaid principal amount, unpaid interest, advance f ees and costs, and possession of the property. Defendants filed their answer and affirmative defen ses as a selfrepresented litigants on April 14, 2020, den ying all allegations and challenging plaintiff's ownership of the original note and mort gage. Defendants claimed plaintiff lacked standing to bring the foreclosure action because it could not prove it was the holder of the mortgage and note, d id not have physical possession of the note, or had a valid mortgage ass ignment. On June 11, 2021, the trial court granted plaintiff 's motion for summary judgment and transferred the matter to the Office o f Foreclosure as uncontested. The court found the note was assigned to plaintiff on March 29, 2007 and recorded, plaintiff owned and controlled the underl ying debt, and, as a result, plaintiff had standing to pursue the foreclosure ac tion. It also found plaintiff was properly identified as the lender and holder of the note by assignment in the Notice. The court determined defendants defaulted on the note and mortgage,5 A- 0395

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the note was valid and recorded, plaintiff became t he valid holder of the note by assignment, and plaintiff had the right to the proper ty in satisfaction of the debt. On June 24, 2021, defendants filed a motion to vaca te the June 11, 2021 order, pursuant to R. 4:50 -1, alleg ing the court failed to find BoA transferred physical possession of the note and mortgage to pla intiff, and failed to find the assignment was recorded before the foreclosure comp laint was filed. The court denied defendant s' motion to vacate. On August 5, 2021, defendants f iled a motion for reconsideration, which the trial court den ied on September 10, 2021. On May 2, 2022, plaintiff filed its motion for fina l judgment with the Office of Foreclosure requesting entry of judgment in its favor and relief in the amount of $721,012.16. Seven days later, defendant s filed a cross-motion to dismiss plaintiff’s complaint for failure to state a claim upon which relief may be granted pursuant to R. 4:6 -2(e). Defendants argued plaintiff's complaint did not allege it was the holder of the original note i nstrument, and continued to claim plaintiff failed to assert it had physical po ssession of the underlying note. Defendants also alleged plaintiff failed to submit a certification based on personal knowledge and relevant admissible evidence , pursuant to R. 1:6 -6, to confirm it had "physical possession" of the note.6 A- 0395

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The court denied defendant s' motion to dismiss for failure to state a claim, finding defendants had filed an answer to plaintiff 's complaint on April 14, 2020, which barred defendants from belatedly filing a R. 4:6 -2(e) motion. The court also substantively noted plaintiff provided a true copy of the assignment of mortgage in support of its motions for summary judg ment and final judgment.
It re iterated plaintiff had standing to foreclose becaus e it demonstrated it was the true holder of the note and mortga ge , based on the valid and recorded assignment. The court entered final judgment against defendants on June 30, 2022, awarding Wells Fargo $721,012.76 plus interest and $7,360.12 in counsel fees, and directing a sheriff's sale of the property to s atisfy the debt. The court also barred and foreclosed defendants from all equity of redemption. Defendant Marshall Anthony filed this appeal on September 9, 2022, contending the trial court erred in denying the cross-motion.
II. We apply a de novo standard of review to a trial co urt order dismissing a complaint pursuant to Rule 4:6 -2(e). Baskin v. P.C. Richard & Son, LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulous v. Bo rrus, Goldin, Foley, Vignuolo, Hyman and Stahl, P.C. , 237 N.J. 91, 108 (2019)). We owe no7 A- 0395

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deference to the trial court's conclusions. Rezem Fam. Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 114 (App. Div. 2 011). On appeal, defendant argues the trial court abused its discretion in its review of his cross-motion to dismiss because its "decision was 'made without a rational explanation, inexplicably departed from es tablished policies, or rested on an impermissible basis.'" (quoting US Bank Nat. Ass’n v. Guillaume , 209 N.J. 449, 467 (2012)). Defendant reiterates his ar guments that plaintiff's May 23, 2019 complaint, motion papers, and proofs do not allege it had ownership or control of the note, or was an entity that was permitted to enforce the in strument within the meaning of N.J.S.A. 12A:3-301. H e continues to argue plaintiff failed to plead it was in possession of the origina l note and the current note was endorsed in blank. Additionally, he maintains plai ntiff failed to prove the note was negotiated by and transferred to plaintiff. Defendant appeals only from the trial court's denial of his motion to dismiss plaintiff's complaint pursuant to R. 4:6 -2(e). A party may move to dismiss a complaint pursuant to R. 4:6 -2(e) for failure to state a claim upon which relief can be granted. However, the motion m ust be made before a responsive pleading is filed. "If a motion is made raising . . . [this] defense[], it shall be made before pleading if a further pleading is to be made." R. 4:6 -2. We8 A- 0395

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have previously stated "the enumerated defenses tha t can be raised by motion may also be raised in an answer." Allstate N.J. In s. Co. v. Cherry Hill Pain & Rehab. Inst., 389 N.J. Super. 130, 137 (App. Div. 2 006). Defendant could have raised this defense, and did raise it, in his answe r and again in opposition to summary judgment. Once he filed an answer containi ng the same defense , defendant was precluded from filing a R. 4:6 -2(e) motion, as the trial court correctly concluded. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on
R. 4:6

– 2 (2024). Moreover, defendant's continued assertion that plai ntiff lacked standing to foreclose is belied by the record. It is well e stablished a party demonstrates standing to foreclose if it establishes it has physical p ossession of the note or an assignment of the mortgage that predated the origin al complaint. Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 ( App. Div. 2012) ( quoting Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. S uper. 214, 224- 25 (App. Div. 2011) ). As the court noted, plaintiff had standing to comme nce the foreclosure action both because it attached a true copy of the note, endors ed by BoA, to its complaint, and because it had possession of the end orsed note as the holder in due course pursuant to N.J.S.A. 12A:3-301 and N.J.S .A. 12A:3-205(b). Wells9 A- 0395

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Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (A pp. Div. 2011); Deutsche Bank Nat’l Trust Co. v. Mitchell , 422 N.J. Super. at 214. Wells Fargo recorded the assignment on April 24, 2013. An assignee can establish standing to foreclose by presenting a properly "authenticated assignment indicating that it was as signed the note before it filed the original complaint. " Ford, 418 N.J. Super. at 225. Here, BoA assigned all of its rights, title and int erest in the mortgage, together with the note, to Wells Fargo, N.A. Plaintiff established a prima facie case for foreclosure because it demonstrated, throu gh its certified true copy of the note and mortgage assignment, it had standing. The ass ignment was signed and recorded more than ten years before plaintiff f iled its foreclosure complaint. The trial court correctly denied defendant's motion to dismiss because it was not brought timely, and because it had already correctly found plaintiff had standing to bring this foreclosure action. Affirmed.