SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0008-18T4

WELLS FARGO BANK,

NATIONAL ASSOCIATION AS 

TRUSTEE FOR MORGAN STANLEY

ABS CAPITAL I INC. TRUST 2007 

HE-4 MORTGAGE PASS-THROUGH 

CERTIFICATES, SERIES 2007-HE4,

Plaintiff-Appellant,

v.

NJ PROPERTY GROUP, LLC,

JOHN D. FLOOD, LAVALLET 

CAPITAL, LLC, DANIEL E. STRAFFI,

and SM FINANCIAL SERVICES

CORPORATIONS,

Defendants.

________________________________

Submitted October 28, 2019 – Decided June 12, 2020

Before Judges Moynihan and Mitterhoff.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Morris County, Docket No. F031547-15.

NOT FOR PUBLICATION WITHOUT THE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.
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A-0008-18T4

Stradley Ronon Stevens & Young, LLP, attorneys for 

appellant (Dustin Peter Mansoor, on the briefs).

Finestein & Malloy, LLC, attorneys for respondents 

Raymond Cooper and Dara Ofner (Russell M. 

Finestein, on the brief).

PER CURIAM

Plaintiff Wells Fargo Bank, National Association as Trustee for Morgan 

Stanley ABS Capital 1 Inc. Trust 2007-HE4 Mortgage Pass-Through 

Certificates, Series 2007-HE4 (Wells Fargo) appeals the July 20, 2018 order for 

summary judgment entered by the trial court in favor of defendants Raymond 

Cooper and Dara Offner. Plaintiff had filed a complaint seeking to foreclose on 

real property, as to which it had previously possessed a mortgage. Prior to 

plaintiff filing its complaint, ownership of the property had changed hands 

several times after an allegedly fraudulent assignment and discharge of 

plaintiff's mortgage. Title to the property was eventually deeded to defendants, 

who executed a separate mortgage on the property. Defendants intervened in 

the foreclosure action. The court granted summary judgment in favor of 

defendants on the basis that plaintiff's claim was precluded by the doctrine of 

laches. Having reviewed the record, and in light of the applicable law, we 

affirm.
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I.

We discern the following facts from the record. Defendants Raymond 

Cooper and Dara Offner acquired title to the subject property by deed dated 

September 24, 2014 from NJ Property Group, LLC. Defendants obtained 

purchase money financing from Weichert Financial Services in order to 

purchase the property. Approximately one year after defendants purchased the 

property, Plaintiff commenced this action to foreclose a mortgage that had been 

discharged of record in 2013. 

By way of background, on October 6, 2006, codefendant John D. Flood 

executed an adjustable rate note in favor of WMC Mortgage Corp., securing a 

loan for $304,000. Flood executed a corresponding mortgage, which 

encumbered the subject property located on Pleasant Hill Road in Flanders in 

favor of Mortgage Electronic Registration (MERS) as nominee for WMC 

Mortgage. The mortgage was recorded on October 13, 2006. On September 12, 

2007, MERS as nominee for WMC assigned the mortgage to plaintiff, and the 

assignment was recorded on November 26, 2007.1 

1

 A corrective assignment to plaintiff was executed on December 22, 2011 and 

was recorded on January 3, 2012. 
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On August 30, 2007, plaintiff through its counsel Zucker, Goldberg & 

Ackerman commenced an action to foreclose its mortgage.

On August 2, 2012, plaintiff assigned its mortgage to JAMM Holdings 

and Investments, LLC (JAMM), which assignment was recorded on January 2, 

2013. Also on January 2, 2013, JAMM executed and recorded a discharge of its 

mortgage. One month later, on February 4, 2013, plaintiff voluntarily dismissed 

the 2007 foreclosure complaint without prejudice. The notice of dismissal 

indicated that "[its] foreclosure action will be restarted."

After plaintiff's 2012 assignment of its mortgage to JAMM, ownership of 

the property was transferred three times in less than six months. Flood deeded 

the subject property to Zia Property Acquisitions, LLC on August 8, 2012, which 

deed was recorded on December 28, 2012. Next, Zia deeded the subject property 

to Floaters, LLC on November 12, 2012, which deed was recorded on January 

23, 2013. Floaters deeded the subject property to NJ Property Group, LLC on 

February 7, 2013, which deed was recorded on February 13, 2013. Finally, NJ 

Property Group deeded the subject property to defendants on September 24, 

2014 for a purchase price of $329,000, which deed was recorded on September 

30, 2014. Defendants executed a corresponding purchase money mortgage with 

Weichert Financial Services for $322,954. 
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On September 16, 2015, more than eight years after it filed its initial 

foreclosure complaint in 2007, and over two-and-a-half years after the voluntary 

dismissal of its 2007 complaint, plaintiff filed the instant action to foreclose its 

mortgage on the subject property.

It is indisputable that the mortgage as to which plaintiff seeks redress was 

assigned and discharged of record on January 2, 2013. Plaintiff nonetheless 

contends that both the assignment of its mortgage to JAMM and JAMM's 

discharge of the mortgage were fraudulent.2 Plaintiff argues that summary 

judgment was inappropriate because there are issues of material fact concerning 

whether it knew about the assignment and discharge prior to defendants' 

intervention in the instant foreclosure. 

The record reveals, however, that on October 17, 2013, almost a year 

before defendants acquired the subject property, Stephen Flatow of Vested 

2

 Plaintiff points to certain irregularities in connection with the assignment, 

which it claims raise material issues of fact that would support its fraud 

allegations. First, plaintiff notes that although the assignment was executed in 

August 2012, the notarizing signature was dated "August 2010." Moreover, the 

notarization does not indicate the specific day on which the assignment was 

executed. In addition, there was a minor discrepancy between the listed assignor 

for the JAMM assignment and the assignor listed in the prior assignment of the 

mortgage. We do not find these alleged discrepancies to be material in light of 

our conclusion that plaintiff knew or should have known of both the JAMM 

assignment and discharge long before the property was conveyed by deed to 

defendants.
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Title, the title insurer for NJ Property Group, sent an e-mail to Michael 

Ackerman of Zucker, Goldberg & Ackerman, plaintiff's counsel in the first 

foreclosure action. The e-mail stated that, as per the Morris County Clerk's 

records, the mortgage was discharged of record. Ackerman responded on 

October 18, 2013 that his firm was "showing the discharge," and "waiting to 

hear back from [plaintiff] as to why the referral [was made]." Plaintiff argues, 

without any supporting certification from a Wells Fargo representative, that this 

knowledge by its attorney should not be imputed to Wells Fargo because it was 

unclear if Ackerman was representing plaintiff in 2013.

Regardless, in June 2014, almost four months before the property was 

conveyed to defendants, Phelan, Hallinan & Schmieg, LLP, then-acting counsel 

for plaintiff, obtained a foreclosure information report from Altisource dated 

June 4, 2014. This report indisputably disclosed the assignment of plaintiff's 

mortgage from plaintiff to JAMM, as well as the various transfers of title that 

followed. Notwithstanding its June 2014 receipt of documentation of the 

assignment that plaintiff now claims was fraudulent, plaintiff failed to take any 

action to vacate the assignment, and it delayed filing a new foreclosure action 
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until September 16, 2015, more than fifteen months after learning of the JAMM 

assignment.3

On March 1, 2018, defendants moved for summary judgment. In 

response, plaintiff did not supply a certification from a representative of Wells 

Fargo to counter plaintiff's statement of undisputed material facts. 

On July 20, 2018, the motion judge entered an order granting defendants' 

motion for summary judgment and dismissing plaintiff's complaint with 

prejudice. The judge determined that Flood's mortgage had been discharged and 

was thus null and void. The judge applied the doctrine of laches and determined 

that records contained in the Registrar's Office of Morris County definitively 

showed that "plaintiff's mortgage was officially discharged of record prior to 

[defendants'] purchase of the subject property." The motion judge found that 

although the signatory on the August 10, 2012 discharge, Earl David, was later 

disbarred and pled guilty to fraud, "there [was] no evidence that the discharge 

3

 Plaintiff's counsel filed a certification in support of its February 7, 2017, 

"Motion to Fix Terms of Lost Assignment," which was filed during the 

pendency of this action. In the certification in support of the motion, plaintiff's 

counsel certified that plaintiff had assigned the mortgage to JAMM Holdings 

and Investments, LLC, and that it was plaintiff's intent that JAMM would assign 

the mortgage back to plaintiff. By order dated April 3, 2017, the motion was 

denied. On the same date of April 3, 2017, the court granted defendant's motion 

to intervene in the matter. 
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was forged . . . no evidence that the signatory was not in fact a bona fide 

representative of [plaintiff] . . . [and] no evidence that JAMM intended to reassign the mortgage back to [plaintiff]." 

The motion judge considered that plaintiff had "dismissed its foreclosure 

suit without prejudice one month after the mortgage was discharged of record 

and never took any action to challenge the alleged fraudulent discharge until 

after [defendants] acquired the property." The judge concluded that plaintiff's 

inaction "substantially prejudiced [defendants]," and applied the doctrine of 

laches "to prevent further injury to [defendants]." Thus, summary judgment was 

granted in favor of defendants. This appeal ensued. 

On appeal, plaintiff raises the following arguments:

I. THIS COURT SHOULD REVERSE THE 

SUMMARY JUDGMENT ORDER.

A. STANDARD OF REVIEW. 

B. THE TRIAL COURT IGNORED EVIDENCE 

CREATING TRIABLE ISSUES OF FACT 

REGARDING THE APPLICATION OF 

LACHES. 

1. [PLAINTIFF] DID NOT HAVE 

KNOWLEDGE OF THE FRAUDULENT 

DISCHARGE UNTIL [DEFENDANTS]

ATTEMPTED TO INTERVENE IN THE 

SECOND FORECLOSURE ACTION. 
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2. THERE WAS NO UNREASONABALE 

DELAY BY WELLS FARGO.

3. [DEFENDANTS] HAVE NOT BEEN 

PREJUDICED. 

II.

"[W]e review the trial court's grant of summary judgment de novo under 

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l 

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). 

[W]hen deciding a motion for summary judgment under 

Rule 4:46–2, the determination whether there exists a 

genuine issue with respect to a material fact challenged 

requires the motion judge to consider whether the 

competent evidential materials presented, when viewed 

in the light most favorable to the non-moving party in 

consideration of the applicable evidentiary standard, 

are sufficient to permit a rational factfinder to resolve 

the alleged disputed issue in favor of the non-moving 

party. 

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 

523 (1995).] 

In reviewing a grant of summary judgment, we consider "whether the evidence 

presents a sufficient disagreement to require submission to a jury or whether it 

is so one-sided that one party must prevail as a matter of law." Id. at 536 

(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). If 

there is no issue of fact, we give no special deference to the trial court's rulings 
10 A-0008-18T4

on matters of law. Templo Fuente, 224 N.J. at 199 (citing Manalapan Realty, 

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). 

"[C]onclusory and self-serving assertions by one of the parties are 

insufficient to overcome [a summary judgment] motion." Puder v. Buechel, 183 

N.J. 428, 440-41 (2005); see R. 4:46-5(a) ("an adverse party may not rest upon 

the mere allegations or denials of the pleading . . . [to show] that there is a 

genuine issue for trial."). "[W]here the party opposing summary judgment 

points only to disputed issues of fact that are 'of an insubstantial nature,' the 

proper disposition is summary judgment." Brill, 142 N.J. at 529 (quoting Judson

v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954)). "Competent 

opposition requires 'competent evidential material' beyond mere 'speculation' 

and 'fanciful arguments.'" Hoffman v. Asseenontv.com, Inc., 404 N.J. Super. 

415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun 

Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)). 

The doctrine of laches "[denies] a party enforcement of a known right 

when the party engages in an inexcusable and unexplained delay in exercising 

that right to the prejudice of the other party." Knorr v. Smeal, 178 N.J. 169, 

180-81 (2003). "Laches may only be enforced when the delaying party had 

sufficient opportunity to assert the right in the proper forum and the prejudiced 
11 A-0008-18T4

party acted in good faith believing that the right had been abandoned." Id. at 

181. "Generally speaking, laches is not imputed to one who had no knowledge, 

or means of acquiring knowledge, of the facts giving rise to his cause of action." 

Heagen v. Borough of Allendale, 42 N.J. Super. 472, 485 (App. Div. 1956) 

(emphasis added).

"The time constraints of laches, unlike the periods prescribed by the 

statute of limitations, are not fixed but are characteristically flexible."4 Lavin v. 

Bd. of Educ., 90 N.J. 145, 151 (1982). Whether a delay is unreasonable depends 

upon the circumstances of a particular case. Allstate Ins. Co. v. Howard Sav. 

Inst., 127 N.J. Super. 479, 489 (Ch. Div. 1974). "The length of delay, reasons 

for delay, and changing conditions of either or both parties during the delay are 

the most important factors that a court considers and weighs. The length of the 

delay alone or in conjunction with the other elements may result in laches." Fed. 

4

 At the time plaintiff filed its second foreclosure complaint in September 2015, 

the statute of limitations for foreclosing on residential mortgages was twenty 

years from the date of default. N.J.S.A. 2A:50-56.1. Because this action arises 

in equity, however, we are free to evaluate whether laches applies to bar 

plaintiff's claim. See Fox v. Millman, 210 N.J. 401, 420 (2012) ("if the subject 

matter in controversy in a Court of Chancery is of an equitable nature, not 

cognizable in a court of law, statutes of limitations although not ignored have 

no obligatory application, but the court will instead apply the doctrine of 

laches." (quoting Hyland v. Simmons, 152 N.J. Super. 569, 576 (Ch. Div. 1977), 

aff'd, 163 N.J. Super. 137 (App. Div. 1978))).
12 A-0008-18T4

Deposit Ins. Corp. v. Rosen, 188 N.J. Super. 230, 237 (App. Div. 1983). 

"Implicit in the concept of inexcusable delay is the ability of the party against 

whom laches is asserted to . . . previously assert the claim which is now alleged 

to be barred. The party . . . cannot assert ignorance of the facts if such ignorance 

is a result of his own culpable neglect." Talcott Fromkin Freehold Assocs. v. 

Freehold Tp., 383 N.J. Super. 298, 320 (Law Div. 2005). 

With these governing principles in mind, we agree with the trial court's 

conclusion that, even setting aside the issue of laches, plaintiff failed to raise an 

issue of material fact for trial. In that regard, plaintiff's claim that its assignment 

to JAMM and JAMM's subsequent discharge were fraudulent is utterly 

unsupported by anything other than bald assertions. See Puder, 183 N.J. at 440. 

In that regard, plaintiff failed to provide a rebutting certification from a Wells 

Fargo representative in opposition to summary judgment in support of its claims 

of fraud. In fact, the only certification submitted by its counsel in this action 

averred that plaintiff volitionally assigned its interest to JAMMS in 2012 with 

the expectation that JAMMS would reassign its interest to plaintiff at an 

unspecified date in the future. The judge correctly concluded that "there [was] 

no evidence that the discharge was forged . . . no evidence that the signatory was 

not in fact a bona fide representative of [plaintiff] . . . [and] no evidence that 
13 A-0008-18T4

JAMM intended to re-assign the mortgage back to [plaintiff]." Thus, the 

mortgage having been discharged in 2013, plaintiff's mortgage was null and void 

and it lacked standing to foreclose. Regardless, we also affirm the trial court's 

holding that plaintiff's action is barred by the doctrine of laches. There was a 

significant delay between the voluntary dismissal of plaintiff's 2007 foreclosure 

action in 2013 (one month after the JAMM discharge) and its reinstitution of the 

action in 2015. In the interim, the property had been sold to defendants, who 

obtained financing for the purchase and thereafter made improvements to the 

property. The records contained in the Registrar's Office of Morris County 

definitively showed that "plaintiff's mortgage was officially discharged of 

record prior to [defendants'] purchase of the subject property." Thus, defendants 

had no notice of any defect in title. On the other hand, plaintiffs exercising due 

diligence between the 2012 discharge of the mortgage and its 2015 renewal of 

its foreclosure certainly knew or should have known of the JAMM assignment. 

 

Defendants' baseless assertions of ignorance do not excuse them from the 

laches bar. Talcott, 383 N.J. Super. at 320. In that regard, it is well settled that 

"knowledge on the part of the attorney for a purchaser of land, or a judgment 

creditor, of a defect in title is imputed to the client." Colegrove v. Behrle, 63 
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N.J. Super. 356, 364 (App. Div. 1960). The imputation doctrine, derived from 

the common law, rests upon the premise that "a principal is deemed to know 

facts that are known to its agent." NCP Litig. Tr. v. KPMG LLP, 187 N.J. 353, 

366 (2006). The Restatement (Third) of Agency [Restatement] 5.03 (2006) sets 

forth the common law rule: "For purposes of determining a principal's legal 

relations with a third party, notice of a fact that an agent knows or has reason to 

know is imputed to the principal if knowledge of the fact is material to the 

agent's duties to the principal[.]" Ibid. 

At the very latest, we conclude that plaintiff was on notice of the 

fraudulent assignment on June 4, 2014, when Phelan Hallinan & Schmieg, its 

then-attorneys, received the results of a title search indicating that plaintiff had 

assigned the mortgage to JAMM. See Colegrove, 63 N.J. Super. at 364; KPMG, 

187 N.J. at 366; Cox, 164 N.J. at 496. Notwithstanding, plaintiff never took 

action to challenge the assignment. Plaintiff never filed a lis pendens. It took 

no legal action until it filed its second complaint to foreclose on the property on 

September 16, 2015. In the interim, defendants purchased the property on 

September 24, 2014 for $329,000, and executed a mortgage for $322,954. Had 

plaintiff timely sought to enforce its rights, defendants would have been on 

notice of an alleged defect in title. 
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We also reject plaintiff's claim that defendants have not been prejudiced 

by plaintiff's inexplicable delay in challenging the allegedly fraudulent 

assignment and discharge. "The primary factor to consider when deciding 

whether to apply laches is whether there has been a general change in condition 

during the passage of time that has made it inequitable to allow the claim to 

proceed." Nw. Covenant Med. Ctr. v. Fishman, 167 N.J. 123, 141 (2001). 

"Inequity, more often than not, will turn on whether a party has been misled to 

his harm by the delay." Rosen, 188 N.J. Super. at 237 (quoting Lavin, 90 N.J. 

at 152-53). 

In this case, there is no question that equity demands plaintiff's claim be 

barred. At the time defendants purchased the property, the discharge was filed 

as of record in 2013. Contrary to plaintiff's claims, defendants had no reason to 

know of any alleged defect in title. Defendants obtained financing to purchase 

the property and thereafter spent money to improve the property. Plaintiff, who 

had constructive knowledge of the fraudulent mortgage in June 2014, failed to 

take any action until after defendants had already assumed significant financial 

commitments. As the trial court found, the dismissal of plaintiff's claims was 

warranted to avoid further prejudice to defendants.
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To the extent that we have not addressed the parties' remaining arguments, 

we conclude that they lack sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E). 

Affirmed.