NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3029-16T4

INVESTORS BANK, 

Plaintiff-Respondent,

v.

JAVIER TORRES,

Defendant-Appellant,

and

MRS. JAVIER TORRES, his wife, 

and DORA M. DILLMAN,

Defendants.

______________________________

Argued September 13, 2018 – Decided

Before Judges Fuentes, Accurso and Moynihan.

On appeal from Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. F001463-15.

Adam L. Deutsch argued the cause for appellants 

(Northeast Law Group, LLC, attorneys; Adam L.

Deutsch, on the briefs). 

Joshua N. Howley argued the cause for respondent 

(Sills Cummis & Gross PC, attorneys; Joshua N. 

APPROVED FOR PUBLICATION

November 16, 2018

APPELLATE DIVISION

November 16, 2018
A-3029-16T4 2

Howley, of counsel and on the brief; Matthew L. 

Lippert, on the brief).

The opinion of the court was delivered by 

MOYNIHAN, J.A.D.

Defendant Javier Torres appeals from a final judgment of foreclosure 

entered following his February 1, 2010 default on a $650,000 promissory note; 

the note, alleged by plaintiff Investors Bank to be lost, was secured by a

mortgage on defendant's home. We are unpersuaded by defendant's arguments 

that the motion judge: (1) misapplied the summary judgment standard; 1(2) 

erred by failing to properly apply N.J.S.A. 12A:3-309 when considering the 

lost note issue – and accord the statute a textualist interpretation – and by 

inferring facts in favor of the party moving for summary judgment; (3) 

deferred the issue regarding the lost note to determination on final judgment; 

 

1 The summary judgment order entered on August 7, 2015 does not appear as 

an appealed order in defendant's notice of appeal or civil case information 

statement. It is well-settled that "only the judgments or orders or parts thereof 

designated in the notice of appeal . . . are subject to the appeal process and 

review." Campagna ex rel. Greco v. Am. Cyanamid Co., 337 N.J. Super. 530, 

550 (App. Div. 2001). See also R. 2:5-1(e)(3)(i). Furthermore, "an appellate 

tribunal always has the authority to question whether its jurisdiction has been 

properly invoked." Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 

126, 143 (2016). However, pursuant to Rule 2:2-4, we are satisfied that the 

interest of justice warrants that we grant leave to appeal nunc pro tunc and 

review the entry of the summary judgment. 
A-3029-16T4 3

and (4) erred by considering an inadmissible lost-note affidavit. 

Consequently, we affirm.

Summary judgment should be granted if the court determines "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). We review 

the motion judge's decision de novo and afford his ruling no special deference.

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016). We "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 nonmoving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 

(1995). 

Defendant challenges plaintiff's right to foreclose alleging plaintiff never 

owned or controlled the underlying debt. See Wells Fargo Bank, N.A. v. Ford, 

418 N.J. Super. 592, 597 (App. Div. 2011). Plaintiff's assignor CitiMortgage, 

Inc. (Citi) acquired the note and mortgage through its merger with ABN 

AMRO Mortgage Group, Inc., the originating lender. See Suser v. Wachovia 

Mortg., F.S.B., 433 N.J. Super. 317, 321 (App. Div. 2013) (recognizing the 

right to enforce a mortgage can arise by operation of ownership of the asset 
A-3029-16T4 4

through mergers or acquisitions). Citi later assigned the mortgage to plaintiff. 

The note was lost prior to the assignment. A Citi representative executed a 

lost-note affidavit which provided that the note "was misplaced, lost or 

destroyed" after execution by defendant and delivery to Citi, and "after a 

thorough and diligent search, which consisted of [searching] loan files and 

imaged documents," the original note could not be located.2 The affidavit was 

executed over a year prior to Citi's November 20, 2014 assignment of the

mortgage to plaintiff. Defendant contends the plain language of N.J.S.A. 

12A:3-309(a) prohibits plaintiff's enforcement of the note because plaintiff did 

not possess the note at the time it was lost. 

We follow our Supreme Court's statutory-interpretation cynosure:

In construing any statute, we must give words 

"their ordinary meaning and significance," recognizing 

that generally the statutory language is "the best 

indicator of [the Legislature's] intent." DiProspero v. 

Penn, 183 N.J. 477, 492 (2005); see also N.J.S.A. 1:1-

1 (stating that customarily "words and phrases shall be 

read and construed with their context, and shall . . . be 

given their generally accepted meaning"). Each 

statutory provision must be viewed not in isolation but 

"in relation to other constituent parts so that a sensible 

meaning may be given to the whole of the legislative 

scheme." Wilson ex rel. Manzano v. City of Jersey 

City, 209 N.J. 558, 572 (2012). We will not presume 

 

2

 Defendant acknowledged Citi's right "to enforce the terms of the [l]oan and 

to receive payments under the [n]ote" when he entered into a loan modification 

agreement with Citi in 2008.
A-3029-16T4 5

that the Legislature intended a result different from 

what is indicated by the plain language or add a 

qualification to a statute that the Legislature chose to 

omit. DiProspero, 183 N.J. at 493.

On the other hand, if a plain reading of the 

statutory language is ambiguous, suggesting "more 

than one plausible interpretation," or leads to an 

absurd result, then we may look to extrinsic evidence, 

such as legislative history, committee reports, and 

contemporaneous construction in search of the 

Legislature's intent. Id. at 492-93.

[Tumpson v. Farina, 218 N.J. 450, 467-68 (2014) 

(alterations in original).]

Inasmuch as our analysis involves more than subsection (a) of 3-309, we 

are mindful of the Court's prescription that

[s]tatutes must be read in their entirety; each part or 

section should be construed in connection with every 

other part or section to provide a harmonious whole. 

When reviewing two separate enactments, the Court 

has an affirmative duty to reconcile them, so as to give 

effect to both expressions of the lawmakers' will. 

Statutes that deal with the same matter or subject 

should be read in pari materia and construed together 

as a unitary and harmonious whole. 

[In re Petition for Referendum on Trenton Ordinance 

09-02, 201 N.J. 349, 359 (2010) (citations omitted).]

We have recognized that N.J.S.A. 12A:3-301 provides three categories 

of persons are entitled to enforce an instrument:

the holder of the instrument, a nonholder in possession 

of the instrument who has the rights of the holder, or a 

person not in possession of the instrument who is 

entitled to enforce the instrument pursuant to 12A:3-
A-3029-16T4 6

309 or subsection [(d)] of 12A:3-418. A person may 

be a person entitled to enforce the instrument even 

though the person is not the owner of the instrument 

or is in wrongful possession of the instrument.

[Deutsche Bank Nat'l Tr. Co. v. Mitchell, 422 N.J. 

Super. 214, 222-23 (App. Div. 2011) (citing N.J.S.A. 

12A:3-301).]

The only applicable avenue to enforce a note for a person not in 

possession is pursuant to N.J.S.A. 12A:3-309, which provides:

a. A person not in possession of an instrument is 

entitled to enforce the instrument if the person was in 

possession of the instrument and entitled to enforce it 

when loss of possession occurred, the loss of 

possession was not the result of a transfer by the 

person or a lawful seizure, and the person cannot 

reasonably obtain possession of the instrument 

because the instrument was destroyed, its whereabouts 

cannot be determined, or it is in the wrongful 

possession of an unknown person or a person that 

cannot be found or is not amenable to service of 

process.

b. A person seeking enforcement of an instrument 

under subsection [(a)] of this section must prove the 

terms of the instrument and the person’s right to 

enforce the instrument. If that proof is made, 12A:3-

308 applies to the case as if the person seeking 

enforcement had produced the instrument. The court 

may not enter judgment in favor of the person seeking 

enforcement unless it finds that the person required to 

pay the instrument is adequately protected against loss 

that might occur by reason of a claim by another 

person to enforce the instrument. Adequate protection 

may be provided by any reasonable means.
A-3029-16T4 7

Unlike defendant, we do not read N.J.S.A. 12A:3-309(a) as precluding 

enforcement by the assignee of a mortgage and the transferee of a lost note. 

We acknowledge that contrary holdings supporting defendant's position 

have been reached by other courts, most notably in Dennis Joslin Co., LLC v. 

Robinson Broadcasting Corp., 977 F. Supp. 491, 495 (D.D.C. 1997)

(determining the plain language of 3-309 "mandates that the plaintiff suing on 

the note must meet two tests, not just one: it must have been both in possession 

of the note when it was lost and entitled to enforce the note when it was lost "). 

But even the Joslin court recognized that "there does not appear to be a logical 

reason to distinguish between a person who was in possession at the time of 

the loss and one who later comes into possession of the rights to the note ." 

Ibid.

Indeed, the Joslin decision was followed by a 2002 amendment to 

section 3-309 of the Uniform Commercial Code (UCC) to make express that a 

person who "has directly or indirectly acquired ownership of the instrument 

from a person who was entitled to enforce the instrument when loss of 

possession occurred" is entitled to enforce the instrument – eliminating the 

possession requirement. U.C.C. § 3-309(a)(1)(B) (Am. Law Inst. & Unif. Law 

Comm'n 2002). Although the New Jersey Legislature has not adopted the 

amendment, we do not construe that inaction to signal a legislative intent to 
A-3029-16T4 8

preclude a transferee of a lost note from enforcing it. See Amerada Hess Corp. 

v. Director, Div. of Taxation, 107 N.J. 307, 322 (1987) (finding "the doctrine 

of probable legislative intent a more reliable guide than the so-called doctrine 

of legislative inaction. 'Legislative inaction has been called a "weak reed upon 

which to lean" and a "poor beacon to follow" in construing a statute.'" (quoting 

2A C. Sands, Sutherland Statutory Construction, § 49.10 (4th ed. 1984))).

 We thus determine that under New Jersey's version of 3-309 a person 

who was both in possession of a note and entitled to enforce it when the loss 

occurred may enforce that note and may transfer that right to another; a 

subsequent transferee need only prove "the terms of the instrument and the 

person's right to enforce the instrument" as required by subsection (b). This 

construction of the statutory language is grounded in both law and equity.

The legal community "almost universally" understands the assignment of 

a mortgage to include 

the transfer of the totality of the mortgagee's rights, 

that is, his right to the debt as well as to the lien 

securing it, and . . . that when one in terms assigns a 

mortgage, he intends, not an effective transfer of his 

rights as creditor against the land, but a transfer of his 

lien alone, which is an absolute nullity, not only 

ignores this ordinary use of the term "mortgage," but 

is also in direct contravention of the well[-]recognized 

rule that an instrument shall if possible be construed 

so as to give it a legal operation.
A-3029-16T4 9

[5 Tiffany on Real Property § 1451 (3d ed. 1939); see 

also 29 N.J. Practice, Law of Mortgages § 11.2, at 754 

(Myron C. Weinstein) (2d ed. 2001).]

The logical extension of that tenet was recognized by the former chief of the 

New Jersey Office of Foreclosure when he counselled that an assignee of a 

mortgage should "insist on receiving the note . . . because if the mortgagee has 

already transferred the mortgage note to another party, the mortgagee can no 

longer make a valid assignment of the mortgage." 29 N.J. Practice, Law of 

Mortgages § 11.2, at 761.

In keeping with the well-recognized principles regarding the assignment 

of mortgages, subsection (a) of 3-309 does not prohibit the transfer of a 

person's enforcement rights, as long as the person claiming to have lost a note 

possessed it and was entitled to enforce it when the loss occurred. That 

provision allows for a person to transfer the right to the debt under the lost 

note. Subsection (b) of 3-309 provides protection to an obligor if the claimedlost note was previously transferred to another entity which also attempts 

enforcement, prohibiting entry of a judgment on the note unless the court finds 

the obligor "is adequately protected against loss that might occur by reason of 
A-3029-16T4 10

a claim by another person to enforce the instrument."3 The statutory

framework, therefore, consonant with widely-accepted mortgage-assignment 

business practices, see, e.g., Sprint Commc'ns Co., v. APCC Servs., 554 U.S. 

269, 276 (2008) (explaining courts recognized as early as the seventeenth 

century that anti-assignment rules are inconsistent with commercial needs), 

allows the assignment of a mortgage even if the note is lost; and for an 

assignee's enforcement of the transferred-lost note.

Importantly, we note that the Legislature provided that a person seeking 

to enforce a note need only prove its terms "and the person's right to enforce" 

it. N.J.S.A. 12A:3-309(b). The Legislature did not require the person 

enforcing the note to prove its possession as it provided in subsection (a). The 

resultant plain reading of the combined provisions of the subsections is that a 

lost note may be transferred by a person who meets subsection (a)'s criteria, 

and that instrument may be enforced by a transferee who meets subsection 

(b)'s requirements.

This approach is in harmony with other New Jersey UCC provisions and 

the common-law principles of assignment recognized by courts for centuries. 

Pursuant to this "strong tradition" courts "have long found ways to allow 

 

3 The trial judge, in overruling defendant's objection to plaintiff's final 

judgment application, applied this provision and required plaintiff to 

"indemnify [d]efendant should another party attempt to enforce the lost note."
A-3029-16T4 11

assignees to bring suit." Sprint Commc'ns, 554 U.S. at 285. The common-law

principles of assignment are not preempted by our version of the UCC which 

makes no specific mention of the assignability of a lost note. In order to 

permit the widely-practiced assignment of obligations – especially those 

secured by mortgages – gap-filler provisions such as the doctrine of 

assignment are appropriate under N.J.S.A. 12A:1-103.

4

 In construing the 

statutes, we heed the Legislature's mandate that our UCC "be liberally 

construed and applied to promote its underlying purposes and policies," 

N.J.S.A. 12A:1-103(a), one of which is "to permit the continued expansion of 

commercial practices through custom, usage, and agreement of the parties," 

N.J.S.A. 12A:1-103(a)(2). Permitting the transfer of a lost note promotes the 

UCC's purpose of expanding commercial practices of contract-parties such as 

Citi and plaintiff, which intended the transfer of rights to enforce the lost note 

along with the assignment of defendant's mortgage. Application of commonlaw assignment principles to the protections afforded obligors by the 

requirements of 3-309, therefore, properly supplements the UCC provisions.

 

4 N.J.S.A. 12A:1-103(b) provides: "Unless displaced by the particular 

provisions of the [UCC], the principles of law and equity, including the law 

merchant and the law relative to capacity to contract, principal and agent, 

estoppel, fraud, misrepresentation, duress, coercion, mistake, bankruptcy, and 

other validating or invalidating cause supplement its provisions."
A-3029-16T4 12

Our reading of both sections of 3-309 is also consistent with equitable 

principles that guard against unjust enrichment. "[T]he doctrine of unjust 

enrichment . . . rests on the equitable principle that a person shall not be 

allowed to enrich himself unjustly at the expense of another." Callano v. 

Oakwood Park Homes Corp., 91 N.J. Super. 105, 108 (App. Div. 1966). "A 

cause of action for unjust enrichment requires proof that '[a] defendant

received a benefit and that retention of that benefit without payment would be 

unjust.'" Cty. of Essex v. First Union Nat'l Bank, 373 N.J. Super. 543, 549-50 

(App. Div. 2004) (quoting VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 

(1994)). 

Adoption of defendant's argument would not only deprive plaintiff of the 

benefit of its bargain with Citi, it would also allow defendant to stay in the 

mortgaged premises and continue to ignore his obligations to pay principal, 

interest, taxes and insurance premiums, adding to a debt that already exceeds 

$900,000. It would be unjust to preclude enforcement of the obligations 

defendant has disregarded since February 2010. Like the common-law

assignment principles, the doctrine of unjust enrichment does not displace 3-

309 or any other provision of our UCC. It supplements those provisions in the 

same manner as do the assignment principles. 
A-3029-16T4 13

We also reject defendant's argument that 3-309 precludes plaintiff's 

enforcement of the note because such argument produces an absurd result –

allowing the defaulted defendant to remain in possession of a house 

obligation-free. See Turner v. First Union Nat'l Bank, 162 N.J. 75, 84 (1999)

(holding "where a literal interpretation [of a statute] would create a manifestly 

absurd result, contrary to public policy, the spirit of the law should control").

We reject as meritless defendant's argument that the lost-note affidavit 

was inadmissible as presented because it was not properly authenticated. The 

affidavit, signed by the Citi representative before a notary public, was proved 

prima facie genuine; that is the only requirement to establish authenticity 

under N.J.R.E. 901. N.J.S.A. 2A:82-17; Konop v. Rosen, 425 N.J. Super. 391, 

411 (App. Div. 2012). The testimony of the subscribing notary was not 

required to authenticate the document. N.J.R.E. 903. 

Further, the circumstances surrounding the document sufficiently 

authenticated it. The affidavit sets forth: the actions taken to find the lost note; 

Citi's status as the note's lawful owner; and that Citi, as the note's seller, did 

not cancel, alter, assign or hypothecate the note. There was no reason for a 

representative of Citi – considering the terms of 3-309 – to make the 

statements set forth in the affidavit, if said statements were not true. If Citi did 
A-3029-16T4 14

not lose the note, it would have been easier to attach it. Instead, it admitted 

the note was lost, leaving the door ajar for defendant's arguments. 

The lost-note affidavit was also properly qualified as a business record. 

A Citi vice-president reviewed the lost-note affidavit, a standard document 

effectively required by 3-309, and, as a person familiar with the business 

records Citi maintained, certified that the pre-requisites under N.J.R.E. 

803(c)(6) to qualify it as a business record were met.5 See State v. 

Matulewicz, 101 N.J. 27, 29 (1985) (recognizing the three well-established 

requirements for admitting evidence pursuant to the predecessor of N.J.R.E. 

803(c)(6), the business record exception to the hearsay rule: "First, the writing 

must be made in the regular course of business. Second, it must be prepared 

within a short time of the act, condition or event being described. Finally, the 

source of the information and the method and circumstances of the preparation 

of the writing must justify allowing it into evidence."). The judge did not 

abuse his discretion by considering the lost-note affidavit. See Hisenaj v. 

Kuehner, 194 N.J. 6, 12 (2008) ("In reviewing a trial court's evidential ruling, 

an appellate court is limited to examining the decision for abuse of 

discretion."). 

 

5 The affidavit was attached to her certification in support of plaintiff's motion 

for summary judgment.
A-3029-16T4 15

We do not agree with defendant's contention that the summary judgment 

standard was misapplied. When the moving party in a summary judgment 

motion satisfies its burden of proof, the burden shifts to the non-moving party 

to present evidence that there is a genuine issue for trial. Globe Motor Co. v. 

Igdalev, 225 N.J. 469, 479-80 (2016); Brill, 142 N.J. at 529. The non-moving 

party may not satisfy its burden by merely making allegations or denials in its 

pleading, but must produce sufficient evidence to reasonably support a verdict 

in its favor. R. 4:46-5(a); G.D. v. Kenny, 205 N.J. 275, 304 (2011). The nonmoving party cannot defeat a summary judgment motion by the identification 

of a disputed fact of an insubstantial nature. Brill, 142 N.J. at 529-30. 

"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) (citations omitted), aff'd, 273 N.J. Super. 542, 

545 (App. Div. 1994). A lender's right to foreclose is an equitable right 

inherent in a mortgage, triggered by a borrower's failure to comply with the 

terms and conditions of the associated loan. S.D. Walker, Inc. v. Brigantine 

Beach Hotel Corp., 44 N.J. Super. 193, 202 (Ch. Div. 1957).

Defendant did not present any evidence of a genuine issue for trial. He 

did not challenge that plaintiff possessed the recorded assignment of mortgage 
A-3029-16T4 16

at the time it filed its complaint. See Deutsche Bank Tr. Co. Ams. v. Angeles, 

428 N.J. Super 315, 318 (App. Div. 2012). He did not assert that he has been 

paying plaintiff or any other person on the outstanding note obligation; or that 

payment has been demanded from any other person; or that foreclosure has 

been commenced or threatened by any person. Further, no evidence was 

presented demonstrating that the note was transferred or the mortgage was 

assigned to a party other than plaintiff. 

We also reject defendant's argument that the discrepancy between two 

answers to interrogatories provided by a processor employed by Citi as 

plaintiff's servicer presented a genuine issue of fact. The processor answered 

one interrogatory, "[p]laintiff is unaware of any . . . destruction or 

misplacement of documents pertinent to this matter," when asked to give 

details about "any correspondence, documents, memoranda, policies of 

insurance, contracts, reports or writings of any kind which in any way pertain 

to the subject matter of this lawsuit [that were] destroyed and/or misplaced." 

The processor referred to that same answer, replying, "[s]ee response . . . 

above," when asked to "set forth a detailed description of the investigation 

and/or search process conducted" before deeming the note lost. When asked to 

set forth the location of the note, the processor then answered that plaintiff was 

not in possession of the original note and referred to the lost-note affidavit. 
A-3029-16T4 17

These arguably disputed facts are insubstantial in nature. Defendant has not 

offered any evidence that the note was not lost. The obviously mistaken 

answers are insufficient to support a finding in his favor. The balance of 

defendant's arguments is without sufficient merit to warrant discussion. R.

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

The grant of summary judgment and entry of the final judgment of 

foreclosure were therefore proper.

Affirmed.