SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3732-16T4

U.S. BANK NATIONAL

ASSOCIATION, as Trustee

for the LXS 2005-9N,

Plaintiff-Respondent,

v.

STANLEY F. FENNER,

Defendant-Appellant,

and 

MRS. FENNER, IRIS C. DIPASALEGNE,

a/k/a IRIS DIPASALEGNE-BLACK,

Defendants.

___________________________________

Submitted May 22, 2018 – Decided July 26, 2018

Before Judges Sumners and Moynihan.

On appeal from Superior Court of New Jersey, 

Chancery Division, Atlantic County, Docket No. 

F-010215-12.

Stanley F. Fenner, appellant pro se.

Phelan Hallinan Diamond & Jones, PC, attorneys 

for respondent (Brian J. Yoder, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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-3732-16T4

In this residential mortgage foreclosure action, defendant 

Stanley F. Fenner appeals a September 20, 2013 order granting 

summary judgment to U.S. Bank National Association, as trustee for 

the LXS 2005-9N (U.S. Bank) and denying his cross-motion for 

summary judgment, and a March 23, 2017 final judgment in favor of 

U.S. Bank in the amount of $170,544.34. We affirm.

We glean the following facts from the record. On November 

30, 2005, Fenner executed a non-purchase money mortgage to Mortgage 

Electronic Registration Systems, Inc. (MERS) as nominee for 

IndyMac Bank, and its successors and assigns, to secure an 

adjustable interest rate promissory note for $106,800 payable to 

IndyMac Bank, F.S.B. Both documents were properly recorded. On 

December 7, 2011, U.S. Bank was assigned the mortgage, which was 

recorded on March 7, 2012.

Due to Fenner's default on the loan, U.S. Bank initiated 

foreclosure proceedings by serving Fenner with a notice of 

intention to foreclose. After Fenner failed to cure the default, 

U.S. Bank filed a foreclosure complaint on June 12, 2012, resulting 

in the entry of default on September 24, 2012, because Fenner 

failed to file an answer. About five months later, Fenner's motion 

to vacate default was granted.

U.S. Bank subsequently moved for summary judgment; Fenner 

cross-moved for summary judgment dismissal of the complaint. On 
3 A-3732-16T4

September 20, 2013, after oral argument, Judge James E. Isman 

granted U.S. Bank summary judgment and denied Fenner's crossmotion. In his oral decision, the judge found that U.S. Bank 

perfected its right to foreclose; U.S. Bank proved "by a 

preponderance of the evidence the validity of the loan documents, 

the existence of a default here by . . . Fenner . . . as well as 

the right to foreclose." Determining Fenner's opposition to 

summary judgment and proofs in support of his cross-motion were 

insufficient, Judge Isman reasoned, "[U.S. Bank] has provided 

sufficient proof to satisfy its preponderance of the evidence 

burden[,]" and that "there is no issue whatsoever presented to 

this [c]ourt in any meaningful fashion other than supposition, 

conjecture, and speculation[.]"

Thereafter, the parties engaged in loss mitigation efforts, 

which prompted U.S. Bank to withdraw its two motions for final 

judgment of foreclosure. Eventually deciding a resolution was not 

likely, U.S. Bank filed a third motion for entry of final judgment 

in February 2017. Fenner did not object to the motion, and on 

March 23, 2017, the Office of Foreclosure granted U.S. Bank final 

judgment of foreclosure for $170,544.34. Fenner's two subsequent 

motions to vacate judgment without prejudice pending this appeal 

were denied.
4 A-3732-16T4

A trial court must grant a summary judgment motion if "the 

pleadings, depositions, answers to interrogatories and admissions 

on file, together with the affidavits, if any, show that there is 

no genuine issue as to any material fact challenged and that the 

moving party is entitled to a judgment or order as a matter of 

law." R. 4:46-2(c). "An issue of fact is genuine only if, 

considering the burden of persuasion at trial, the evidence 

submitted by the parties on the motion, together with all 

legitimate inferences therefrom favoring the non-moving party, 

would require submission of the issue to the trier of fact." 

Ibid.; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995). On appeal, we apply the same standard that governs the 

trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015).

A mortgagee's "right to foreclose is an equitable right 

inherent in the mortgage." Chase Manhattan Mortg. Corp. v. Spina, 

325 N.J. Super. 42, 50 (Ch. Div. 1998). The mortgagee has the 

right to insist upon strict observance of the obligations that are 

contractually owed to it, including timely payment. See Kaminski 

v. London Pub, Inc., 123 N.J. Super. 112, 116 (App. Div. 1973). 

"The only material issues in a foreclosure proceeding are the 

validity of the mortgage, the amount of the indebtedness, and the 

right of the mortgagee to resort to the mortgaged premises." Great 

Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993). 
5 A-3732-16T4

When there is proof of execution, recording and non-payment of the 

note and mortgage, a mortgagee has established a prima facie right 

to foreclose. Thorpe v. Floremoore Corp., 20 N.J. Super. 34, 37 

(App. Div. 1952). A mortgagor opposing summary judgment has a 

duty to present facts controverting the mortgagee's prima facie 

case. Spiotta v. William H. Wilson, Inc., 72 N.J. Super. 572, 581 

(App. Div. 1962). Unexplained conclusions and "[b]ald assertions 

are not capable of . . . defeating summary judgment." Ridge at 

Back Brook, LLC v. Klenert, 437 N.J. Super. 90, 97-98 (App. Div. 

2014).

Fenner argues:

[POINT I]

A. STANDARDS OF REVIEW

1. THE APPELLATE DIVISION MUST DECIDE –

WHETHER A GENUINE ISSUE OF MATERIAL FACT WAS 

IN DISPUTE THAT SHOULD HAVE PRECLUDED SUMMARY 

JUDGMENT, AND IF NOT, WHETHER THE TRIAL COURT 

RULE[D] CORRECTLY ON THE LAW.

2. THE APPELLATE DIVISION MUST DECIDE –

WHETHER PLAINTIFF'S PROOF[S] WERE SUFFICIENT 

TO SUPPORT ENTRY OF JUDGMENT.

[POINT II]

B. PLAINTIFF[] U.S. BANK NATIONAL 

ASSOCIATION['S] OWN PROOF[S] ESTABLISHED THAT 

BANK OF AMERICA, N.A. IS NOT THE HOLDER OF THE 

NOTE, AND THEREFORE LACKS STANDING TO 

FORECLOSE.
6 A-3732-16T4

1. IN ORDER FOR FINAL JUDGMENT TO BE GRANTED, 

PLAINTIFF HAS TO SATISFY THE REQUIREMENTS AS 

TO PROOFS, AS "CLARIFIED BY THE NEW JERSEY 

SUPREME COURT IN U.S. BANK NATIONAL 

ASSOCIATION V. GUILLUAME, 209 N.J. 449[,] 38 

A. 3D 570[, (2012)] REGARDING [RULE] 4:64-2, 

[RULE] 4:64-2(a)[, RULE] 4:64-2(c)[,] AND 

[RULE] 4:64-2(d).

2. IN ORDER TO HAVE STANDING TO FORECLOSE, A 

PLAINTIFF MUST SHOW BOTH (1) THAT THE 

DEFENDANT OWES A DEBT TO THE PLAINTIFF AND (2) 

THAT THE PLAINTIFF HAS A SECURITY INTEREST IN 

THE PROPERTY.

3. TRANSFER OF A NEGOTIABLE INSTRUMENT IS 

GOVERNED BY THE UNIFORM COMMERCIAL CODE, 

[WHICH] REQUIRES PHYSICAL POSSESSION AND 

INDORSEMENT OF A NOTE PAYABLE TO [HOLDER].

4. INDYMAC BANK DID NOT [TRANSFER] THE NOTE 

TO U.S. BANK NATIONAL ASSOCIATION BEFORE (OR 

AFTER) THE COMPLAINT WAS FILED; AND U.S. BANK 

NATIONAL ASSOCIATION DID NOT HAVE POSSESSION 

OR CONTROL OR HOLDER OF THE NOTE AND OR 

MORTGAGE BEFORE THE COMPLAINT WAS FILED; OR 

AFTER THE COMPLAINT WAS FILED.

5. PLAINTIFF'S ALLEGED POSSESS[ORY] INTEREST 

IN THE NOTE, SUPPORTED ONLY BY AN ASSIGNMENT 

OF MORTGAGE FAILS TO MEET THE REQUIREMENTS OF 

THE UNIFORM COMMERCIAL CODE AND DOES NOT GIVE 

RISE TO A CLAIM OF RELIEF AGAINST THE MAKER 

OF THE NOTE.

6. PLAINTIFF[] U.S. BANK NATIONAL[]

ASSOCIATION['S] CLAIM OF ASSIGNMENT WAS 

UNSUPPORTED BY COMPETENT EVIDENCE, AND 

THEREFORE [IT] FAILED EVEN TO SHOW AN 

OWNERSHIP INTEREST IN THE NOTE.

7. AS PLAINTIFF, U.S. BANK NATIONAL 

ASSOCIATION FAILED TO SHOW THAT IT WAS THE 

HOLDER OF THE NOTE THE ASSIGNEE OF THE 

MORTGAGE IT IS NOT A PROPER PARTY TO THE 
7 A-3732-16T4

FORECLOSURE ACTION AND LACKS STANDING TO 

[FORECLOSE].

Considering Fenner's arguments in light of the record and 

applicable legal principles, we conclude that they are without 

sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E). We affirm substantially for the reasons 

expressed in Judge Isman's well-reasoned oral decision.

Affirmed.