SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3745-16T3

U.S. BANK, N.A., SUCCESSOR

TRUSTEE TO BANK OF AMERICA,

N.A., SUCCESSOR IN INTEREST TO 

LASALLE BANK, N.A., AS TRUSTEE,

ON BEHALF OF THE HOLDERS OF

THE WASHINGTON MUTUAL

MORTGAGE PASS-THROUGH 

CERTIFICATES, WMALT SERIES 2007-2,

Plaintiff-Respondent,

v.

YAKOV RYCHIK and ERIKA RYCHIK,

his wife,

Defendants-Appellants, 

and

613 CONSULTING LLC, and

AMERICAN EXPRESS BANK FSB, 

Defendants. 

_____________________________________

Argued January 29, 2019 – Decided March 5, 2019

NOT FOR PUBLICATION WITHOUT THE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-3745-16T3

Before Judges Yannotti and Gilson.

On appeal from Superior Court of New Jersey, 

Chancery Division, Bergen County, Docket No. F002363-15.

Michael M. Cohen argued the cause for appellants (Law 

Offices of Michael M. Cohen, attorneys; Michael M. 

Cohen, on the brief).

Charles W. Miller, III, argued the cause for respondent 

(Parker Ibrahim & Berg, LLC, attorneys; Charles W. 

Miller, III, Ben Z. Raindorf, and Robert D. Bailey, on 

the brief).

PER CURIAM

Defendants Yakov Rychik and Erika Rychik appeal from an order entered 

by the Chancery Division on October 13, 2015, which struck their answer, and 

denied their cross-motion to dismiss the complaint. We affirm.

 On November 2, 2006, Yakov Rychik borrowed $1,280,000 from 

Greenpoint Mortgage Funding (Greenpoint) and executed a note, promising to 

repay that sum with interest, in monthly installments commencing on January 1, 

2007. On November 2, 2006, defendants executed and delivered a purchase 

money mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as 

nominee for Greenpoint, which granted MERS a security interest in certain real 

property on Mountain Road in Englewood. 
3

A-3745-16T3

On October 29, 2009, MERS and U.S. Bank, N.A. (plaintiff) executed and 

notarized an "Assignment of Mortgage." The assignment grants plaintiff both 

the note and mortgage to have and to hold. Margaret Dalton signed the 

assignment on behalf of MERS. On the document, Dalton is identified as Vice 

President of MERS. 

On November 16, 2009, the mortgage and the assignment were recorded 

in the Office of the Clerk of Bergen County. In May 2013, plaintiff granted 

mortgage servicing rights to JPMorgan Chase Bank, N.A. (JPMorgan) by way 

of limited power of attorney, and in August 2013, JPMorgan transferred those 

rights to Select Portfolio Servicing, Inc. (SPS). 

Defendants failed to make the installment payment due July 1, 2009, and 

they have not made any payments since that date. On November 6, 2014, notices 

of intention to foreclose were sent to defendants, and on January 21, 2015, 

plaintiff filed a foreclosure complaint in the trial court. Defendants filed an 

answer on April 27, 2015. 

On July 21, 2015, plaintiff filed a motion for summary judgment. In 

support of that motion, plaintiff submitted a certification by Karter Nelson, 

document control officer for SPS. Copies of the note, mortgage, and assignment 

document were attached to Nelson's certification. 
4

A-3745-16T3

In the certification, Nelson stated that his employer, SPS, is "the 

[p]laintiff's authorized agent for the subject loan" and that he is "familiar with 

business records maintained by [SPS] for the purpose of servicing mortgage 

loans." He also stated that he "personally examined these business records 

reflecting data and information as of the date of this [c]ertification." 

Defendants opposed the motion and filed a cross-motion for summary 

judgment. Defendants asserted that there was a genuine issue of material fact

as to whether plaintiff had standing to foreclose. They contended that because 

plaintiff failed to establish standing, the court should dismiss the complaint. By

order dated October 13, 2015, the trial court granted plaintiff's motion and 

denied defendants' cross-motion for summary judgment. 

In an accompanying statement of reasons, the motion judge stated that 

plaintiff had established it has possession of both the note and the assignment 

of the mortgage. The judge stated that Nelson's certification established that he 

had sufficient personal knowledge to certify the authenticity of the note and the

mortgage. 

On February 7, 2017, the court entered a final judgment of foreclosure, 

which stated that plaintiff was entitled to a sum of $2,059,106.93, which 

consisted of the principal amount in default, and advances plaintiff made 
5

A-3745-16T3

through the date of the judgment, with interest on all sums due, as well as 

attorney's fees. The order further provided that the mortgaged premises would 

be sold to raise the sums of money due. The order directed the Sheriff of Bergen 

County to make the sale according to law, and to disburse the proceeds of sale 

in accordance with the court's directions. On April 21, 2017, defendants filed a 

notice of appeal. 

According to plaintiff, in May 2017, defendants filed a motion in the trial 

court to vacate the final judgment and stay the execution of the final judgment. 

The trial court entered an order in July 2017, denying the motion to vacate. The 

trial court also denied a motion for a stay of execution of the judgment. 

Defendants thereafter filed a motion in this court to stay the execution of the 

judgment. By order dated August 23, 2017, we denied the motion. 

It appears that a sheriff's sale was scheduled for February 16, 2018. 

Defendants filed a motion in this court seeking, among other relief, a stay of the 

execution of the judgment pending disposition of the appeal. By order dated 

February 1, 2018, we denied the motion. The sheriff's sale was re-scheduled for 

March 16, 2018. It appears that the sale did not take place on that date because 

defendants filed a bankruptcy petition. 
6

A-3745-16T3

On June 7, 2018, we dismissed the appeal without prejudice, but allowed 

defendants to seek reinstatement upon completion of the bankruptcy 

proceedings. In September 2018, defendants filed a motion to reinstate the 

appeal. We granted the motion. The sheriff's sale was re-scheduled for February 

8, 2019. The trial court denied defendants' motion to stay the sale. 

On appeal, defendants argue that the trial court erred by granting 

plaintiff's motion for summary judgment. They maintain there are genuine 

issues of material fact as to whether plaintiff has standing to foreclose. 

When reviewing a trial court's order granting summary judgment, we 

apply the same standard that the trial court applies when ruling on a summary 

judgment motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 

162, 167 (App. Div. 1998). Therefore, we must consider whether there are any

genuine issues of material fact and the moving party is entitled to judgment as a 

matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 

520, 523 (1995). 

"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." R. 4:46-2(c). In a foreclosure 
7

A-3745-16T3

proceeding, the only material issues of fact "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); see also Central Penn Nat'l Bank v. Stonebridge Ltd., 185 N.J. 

Super. 289, 302 (Ch. Div. 1982); Thorpe v. Floremoore Corp., 20 N.J. Super. 

34, 37 (App. Div. 1952).

Here, defendants argue that plaintiff failed to submit sufficient evidence 

to establish it had standing to foreclose on the subject property. A party may 

establish standing to foreclose by showing it is either (1) a holder of the 

instrument, (2) a non-holder in possession of the instrument with the rights of 

the holder, or (3) a person not in possession but nonetheless entitled to enforce 

the instrument. N.J.S.A. 12A:3-301. A party who establishes it is the holder of 

the note or mortgage at the time it files the complaint has standing to foreclose 

on the subject property. Deutsche Bank Nat'l Trust Co. v. Mitchell, 422 N.J. 

Super. 214, 224-25 (App. Div. 2011). 

A person other than the person to whom the instrument is made payable 

may become a "holder" if there is proof of a "negotiation." Wells Fargo Bank, 

N.A. v. Ford, 418 N.J. Super. 592, 598 (App. Div. 2011) (citing N.J.S.A. 12A:3-

201(a)). "Negotiation" occurs when there is both (1) "transfer of possession of 
8

A-3745-16T3

the instrument" and (2) "its indorsement by the holder." Mitchell, 422 N.J. 

Super. at 223 (quoting N.J.S.A. 12A:3-201(b)). 

In this case, plaintiff established it was a "holder" of the subject note and 

mortgage because a valid "negotiation" took place. Plaintiff presented evidence 

showing that MERS, acting as Greenpoint's nominee, transferred possession of 

the note and mortgage to plaintiff. Moreover, MERS indorsed the assignment 

documents. 

Plaintiff's proofs were sufficient to show that it had standing to foreclose 

on the subject property. Rule 4:64-2 states that in a foreclosure action, a party 

seeking to foreclose must produce either the original mortgage document "and 

any other original document upon which the claim is based" or "a legible copy," 

if recorded or filed, "certified as a true copy by the recording or filing officer or 

by a New Jersey attorney, or a copy of an original document, if unfiled or 

unrecorded, certified as a true copy by a New Jersey attorney." R. 4:64-2(a). 

Here, plaintiff submitted copies of the original note, mortgage, and 

assignment documents to the trial court, and plaintiff's attorney certified that all 

three of these documents were true copies of the original documents. The 

certification complied with Rule 4:64-2(a). Furthermore, plaintiff provided the 
9

A-3745-16T3

court with Nelson's certification, in which he states that the documents are 

authentic.

Rule 4:64-2(c), which governs the use of affidavits in foreclosure actions, 

states: 

[t]he affidavit prescribed by this rule . . . shall be made 

either by an employee of the plaintiff, if the plaintiff 

services the mortgage, on the affiant's knowledge of the 

plaintiff's business records kept in the regular course of 

business, or by an employee of the plaintiff's mortgage 

loan servicer, on the affiant's knowledge of the 

mortgage loan servicer's business records kept in the 

regular course of business.

[Emphasis added.]

Rule 4:64-2(c) also states that the person providing the affidavit must confirm: 

(1) that he or she is authorized to make the affidavit on 

behalf of the plaintiff or the plaintiff's mortgage loan 

servicer; (2) that the affidavit is made based on a 

personal review of business records of the plaintiff or 

the plaintiff's mortgage loan servicer, which records are 

maintained in the regular course of business; (3) that 

the financial information contained in the affidavit is 

accurate; and (4) that the default remains uncured. 

In addition, Rule 4:64-2(c) states, "[t]he affidavit shall also include the 

name, title, and responsibilities of the individual, and the name of his or her 

employer," and "[i]f the employer is not the named plaintiff in the action, . . . a 

description of the relationship between the plaintiff and the employer." Ibid.
10 A-3745-16T3

Nelson's certification satisfies these requirements. A certification is 

permissible under Rule 1:4-4, in lieu of an affidavit. As noted previously, 

Nelson states that he is a document control officer for SPS, and is plaintiff's 

"authorized agent for the subject loan." Nelson also states that he is familiar 

with the records and is authorized to make the certification.

He "personally examined" the record of the assignment, which is 

maintained in the regular course of SPS's business. He states that the

information set forth in the certification is true and accurate, and that defendants' 

default remained uncured. 

Rule 4:64-2(d) also requires attorneys representing foreclosing plaintiffs 

to annex to every motion to enter judgment an "affidavit of diligent inquiry" 

stating: 

(1) that the attorney has communicated with an 

employee or employees of the plaintiff or of the 

plaintiff's mortgage loan servicer who (A) personally 

reviewed the affidavit of amount due and the original 

or true copy of the note, mortgage and recorded 

assignments, if any, being submitted and (B) confirmed 

their accuracy; (2) the date and mode of communication 

employed; (3) the name(s), title(s) and responsibilities 

in those titles of the plaintiff's employee(s) or the 

employee(s) of the plaintiff's mortgage loan servicer 

with whom the attorney communicated pursuant to this 

rule; and (4) that the aforesaid documents comport with 

the requirements of [Rule] 1:4-8(a).
11 A-3745-16T3

Here, plaintiff's attorney completed a certification of diligent inquiry and 

accuracy of foreclosure, dated January 10, 2017. Plaintiff's attorney certified 

that she communicated with the document control officer of SPS, who confirmed 

to her that he "personally reviewed" the "true copy of the note, mortgage and 

recorded assignments, [and] . . . the accuracy of those documents." The 

attorney's certification meets the requirements of Rules 4:64-1 and 4:64-2. 

Defendants argue, however, that the trial court erred by relying upon 

Nelson's certification. They note that in his certification, Nelson stated that he 

had examined records, which include "data compilations" and "electronically 

imaged documents." Defendants maintain Nelson was required to attest that he 

inspected, verified, or copied the original documents. 

Defendants further argue that Nelson's certification was deficient because 

he failed to state that he personally inspected the original note, and failed to 

provide the factual basis for his assertion that the copies of the documents 

provided to the court were "true and correct." In addition, defendants contend 

Nelson failed to establish that MERS had authority to assign the note and 

mortgage to plaintiff. We are not persuaded by these arguments. 

Nelson was not required to attest that he had inspected, verified, or copied 

the original documents. He stated that plaintiff is the holder of the note. He 
12 A-3745-16T3

also stated that on October 29, 2009, MERS, acting as nominee for Greenpoint, 

assigned the mortgage to plaintiff. Nelson stated that he made these assertions, 

after having personally examined records maintained by SPS. Thus, Nelson 

established that he had personal knowledge of the relevant records. We 

therefore reject defendants' contention that the trial court erred by relying on 

Nelson's certification.

Defendants further argue that the trial court should not have granted 

plaintiff's motion for summary judgment because there was a genuine issue of 

material fact as to whether Dalton had authority to sign the assignment on behalf 

of MERS. In support of this contention, defendants rely upon what appears to 

be a compilation of copies of parts of documents, which Dalton signed as Vice 

President of various other entities. 

Defendants have not, however, submitted an affidavit or certification 

identifying or authenticating the documents upon which they rely. Defendants 

have only provided the signature sections of the documents. They have not 

identified the documents involved, the dates the documents were signed, or the 

circumstances under which they were executed. 

We conclude the portions of the documents provided to the trial court did 

not create a genuine issue of material fact as to whether Dalton had authority to 
13 A-3745-16T3

execute the assignment at issue here. The evidence on the issue of standing was 

so "one-sided" that defendant was entitled to "prevail as a matter of law." Brill, 

142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 

(1986)).

In addition, defendants argue that their cross-motion for summary 

judgment should have been granted. They argue that once they raised the issue 

of standing, the burden shifted to plaintiff to prove by a preponderance of the 

evidence that it had standing to foreclose. Defendants contend plaintiff failed 

to establish that it had standing on the day it filed its complaint, and plaintiff 

failed to oppose its cross-motion. We are convinced these arguments lack

sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). 

Affirmed.