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NOT FOR PUBLICATION WITHOUT THE 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 the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. 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. Jeanfreau, 

on the brief). 

PER CURIAM 

 Defendant, Marshall Anthony,1 appeals from an order dismissing 

defendants' cross-motion to dismiss the complaint for failure to state a cause of 

action pursuant to Rule 4:6-2(e), claiming plaintiff lacked standing to foreclose. 

Because we conclude defendants' motion was procedurally untimely, and 

plaintiff had standing to foreclosure, we discern no reason to disturb the trial 

court's order and affirm. 

I.

On December 29, 2006, Marshall Anthony and Tascha Anthony 

(defendants) executed a mortgage in favor of Bank of America, N.A. (BoA) in 

1

 Tascha Anthony did not join in this appeal. 
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the amount of $372,000 for property located in Scotch Plains, NJ 07076 (the 

property). To secure the mortgage, defendants executed and delivered a note to 

BoA the same day. The mortgage was recorded on January 10, 2007 in Union 

County, NJ. On March 29, 2007, BoA assigned the mortgage to Wells Fargo 

Bank, N.A., (plaintiff), in the care of Specialized Loan Servicing, LLC 

(Specialized Loan). Tron P. Nash, an authorized officer of BoA signed the 

assignment on behalf of BoA. The assignment was recorded in Union County 

on April 24, 2013. 

On January 11, 2018, defendants and Specialized Loan, plaintiff's 

mortgage loan servicer, entered into a loan modification 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 Notice of Intent to 

Foreclose (Notice) to defendants, alerting them they 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 amount of $27,622.20 by 

November 16, 2018, and providing notice of the lender's intention to file a 

foreclosure action. The Notice advised that plaintiff was the current owner of 

the loan and Specialized Loan, as the mortgage servicer, represented plaintiff. 
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On May 23, 2019, plaintiff filed a foreclosure complaint against 

defendants. Plaintiff's three-count complaint alleged defendants defaulted on 

the loan, failed to remit payment after default, and deprived plaintiff of its right 

to possession of the property. Plaintiff demanded acceleration of the whole 

unpaid principal amount, unpaid interest, advance fees and costs, and possession 

of the property. 

Defendants filed their answer and affirmative defenses as a selfrepresented litigants on April 14, 2020, denying all allegations and challenging 

plaintiff's ownership of the original note and mortgage. Defendants claimed 

plaintiff lacked standing to bring the foreclosure action because it could not 

prove it was the holder of the mortgage and note, did not have physical 

possession of the note, or had a valid mortgage assignment. 

On June 11, 2021, the trial court granted plaintiff's motion for summary 

judgment and transferred the matter to the Office of Foreclosure as uncontested. 

The court found the note was assigned to plaintiff on March 29, 2007 and 

recorded, plaintiff owned and controlled the underlying debt, and, as a result, 

plaintiff had standing to pursue the foreclosure action. 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, 
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the note was valid and recorded, plaintiff became the valid holder of the note by 

assignment, and plaintiff had the right to the property in satisfaction of the debt. 

On June 24, 2021, defendants filed a motion to vacate the June 11, 2021 

order, pursuant to R. 4:50-1, alleging the court failed to find BoA transferred 

physical possession of the note and mortgage to plaintiff, and failed to find the 

assignment was recorded before the foreclosure complaint was filed. The court 

denied defendants' motion to vacate. On August 5, 2021, defendants filed a 

motion for reconsideration, which the trial court denied on September 10, 2021. 

On May 2, 2022, plaintiff filed its motion for final 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, defendants 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 instrument, and continued to 

claim plaintiff failed to assert it had physical possession 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. 
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The court denied defendants' 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 judgment and final judgment. 

It reiterated plaintiff had standing to foreclose because it demonstrated it was 

the true holder of the note and mortgage, 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 satisfy 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 court 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. Borrus, Goldin, Foley, 

Vignuolo, Hyman and Stahl, P.C., 237 N.J. 91, 108 (2019)). We owe no 
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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. 2011). 

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 established policies, or rested 

on an impermissible basis.'" (quoting US Bank Nat. Ass’n v. Guillaume, 209 

N.J. 449, 467 (2012)). Defendant reiterates his arguments 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 instrument 

within the meaning of N.J.S.A. 12A:3-301. He continues to argue plaintiff 

failed to plead it was in possession of the original note and the current note was 

endorsed in blank. Additionally, he maintains plaintiff 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 must 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. We 
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have previously stated "the enumerated defenses that can be raised by motion 

may also be raised in an answer." Allstate N.J. Ins. Co. v. Cherry Hill Pain & 

Rehab. Inst., 389 N.J. Super. 130, 137 (App. Div. 2006). Defendant could have 

raised this defense, and did raise it, in his answer and again in opposition to 

summary judgment. Once he filed an answer containing 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 plaintiff lacked standing 

to foreclose is belied by the record. It is well established a party demonstrates 

standing to foreclose if it establishes it has physical possession of the note or an 

assignment of the mortgage that predated the original 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. Super. 214, 224-25 (App. Div. 

2011)). 

As the court noted, plaintiff had standing to commence the foreclosure 

action both because it attached a true copy of the note, endorsed by BoA, to its 

complaint, and because it had possession of the endorsed 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). Wells 
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Fargo Bank, N.A. v. Ford, 418 N.J. Super. 592, 597 (App. 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 assigned the note before it filed 

the original complaint." Ford, 418 N.J. Super. at 225. 

Here, BoA assigned all of its rights, title and interest in the mortgage, 

together with the note, to Wells Fargo, N.A. Plaintiff established a prima facie 

case for foreclosure because it demonstrated, through its certified true copy of 

the note and mortgage assignment, it had standing. The assignment was signed 

and recorded more than ten years before plaintiff filed 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.