SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0031-15T4

NATIONSTAR MORTGAGE, LLC,

Plaintiff-Respondent,

v.

DEAN MARCIANO,

Defendant-Appellant,

and

CHRISTINE MARCIANO, a/k/a

CHRISTINE M. MARCIANO,

THE PLASTIC SURGERY CENTER;

DISCOVERY BANK; and MIDLAND 

FUNDING LLC,

Defendants.

_______________________________________________

Submitted March 21, 2017 – Decided

Before Judges Yannotti, Gilson, and SappPeterson.

On appeal from Superior Court of New Jersey, 

Chancery Division, Monmouth County, Docket No. 

F-027407-14.

Dean Marciano, appellant pro se.

NOT FOR PUBLICATION WITHOUT THE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.

April 18, 2017
2 A-0031-15T4

Sandelands Eyet LLP, attorneys for respondent 

(Kathleen Cavanaugh, of counsel and on the 

brief).

PER CURIAM

In this foreclosure matter, defendant Dean Marciano appeals 

from an order entered by the Chancery Division on March 9, 2015, 

striking his answer, and an order entered on June 12, 2015, which 

denied his motion to vacate the final judgment and dismiss the 

complaint. We affirm. 

I. 

We briefly summarize the relevant facts and procedural 

history. Christine M. Marciano borrowed $417,000 from Countrywide 

Home Loans, Inc. (Countrywide) and executed a note dated October 

20, 2006, promising to repay that amount, with interest, in monthly 

installments. The obligation to repay the note was secured by a 

mortgage issued to Countrywide that was executed on October 20, 

2006, by Ms. Marciano and defendant, on certain property in 

Manalapan, New Jersey. The mortgage was recorded in the Office of 

the Monmouth County Clerk (MCC) on November 14, 2006. Ms. Marciano 

defaulted on the payments due on the note on May 1, 2011. 

On September 22, 2011, Mortgage Electronic Registration 

Systems, Inc. assigned the mortgage to Bank of America, N.A. The 

assignment was recorded in the Office of the MCC on September 30, 

2011. A corrected assignment, dated April 2, 2013, was executed 
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and duly recorded. On March 6, 2014, Bank of America, N.A. assigned 

the mortgage to plaintiff Nationstar Mortgage, LLC, and that 

assignment was duly recorded on March 18, 2014. 

Plaintiff commenced its foreclosure action on July 3, 2014. 

Ms. Marciano did not contest the foreclosure, but defendant filed 

an answer disputing liability. Defendant did not, however, appear 

at the case management conference held on December 15, 2014. In 

addition, defendant did not respond to plaintiff's requests for 

admissions regarding the authenticity and validity of the note and 

mortgage, the default, or plaintiff's status as holder of the note 

and mortgage. 

On February 2, 2015, plaintiff filed a motion to strike 

defendant's answer. Although defendant filed a response to the 

motion, he did not appear at the oral argument on that motion, 

which had been scheduled for March 6, 2015, at his request. The 

court entered an order dated March 9, 2015, granting plaintiff's 

motion. In ruling on the motion, the judge noted that plaintiff 

had established a prima facie case in support of foreclosure, and 

defendant had not pled specific facts to support any defense.

Plaintiff then filed a motion for entry of the final judgment 

of foreclosure. Defendant did not oppose the motion. The final 

judgment was entered on April 21, 2015. 
4 A-0031-15T4

In May 2015, defendant filed a motion pursuant to Rule 4:50-

1 to vacate the final judgment and dismiss the complaint. The 

judge considered the motion on June 11, 2015, and placed her 

decision on the record that day. The judge stated that defendant 

was raising the same issues he had raised when plaintiff sought 

to strike his answer. 

The judge noted that she had previously found that plaintiff 

had standing to foreclose, the assignments of the mortgage were 

valid, and the notice of intent to foreclose was valid. The judge 

also noted that plaintiff's business records established default, 

and there was no basis for defendant's claim that plaintiff 

committed fraud. The judge entered an order dated June 12, 2015,

denying the motion. This appeal followed.

On appeal, defendant argues: (1) plaintiff failed to 

establish that it had possession of the original note during the 

foreclosure action; (2) the assignment of the mortgage to plaintiff 

is invalid; (3) without possession of the note or valid assignment 

of the mortgage, plaintiff did not have standing to foreclose; (4) 

the notice of intent to foreclose misidentifies plaintiff as the 

lender; and (5) the court abused its discretion and erred by 

ignoring defendant's evidence in failing to dismiss the complaints 

pursuant to the "unclean hands" doctrine.
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II.

Defendant argues that the trial court erred by granting 

plaintiff's motion to strike his answer, which was essentially a 

motion for summary judgment pursuant to Rule 4:46-2(c). The rule 

provides that a court may grant summary judgment if the moving 

party shows that there is no genuine issue of material fact and 

the moving party is entitled to judgment as a matter of law. Ibid.

When deciding a summary judgment motion, the trial court 

considers "whether the competent evidential materials presented, 

when viewed in the light most favorable to the non-moving party, 

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, 540 (1995). We 

apply the same standard when reviewing an order granting summary 

judgment. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405

(2014). 

In support of its motion to strike defendant's answer,

plaintiff presented the trial court with several certifications 

and supporting evidence establishing default under the note and 

standing to foreclose. Defendant argues, however, that the trial 

court should have rejected the certification of Eboney Jones, one 

of plaintiff's employees, which sets forth facts concerning 
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plaintiff's possession of the note and the assignment of the 

mortgage. 

Defendant asserts that Ms. Jones does not have personal 

knowledge of the facts in her certification. However, in her 

certification, Ms. Jones stated that her statements were based 

upon records maintained by plaintiff, with which she is familiar. 

Defendant also asserts that Ms. Jones only stated that plaintiff 

maintained the subject records in its capacity as plaintiff's 

servicer, but according to Ms. Jones, plaintiff also possessed 

the original note and an assignment of the mortgage. The trial 

court did not err by accepting Ms. Jones's certification and 

relying upon the facts stated therein. 

Defendant further argues that plaintiff's statement of the 

amount of taxes it paid was not accurate. Plaintiff's certification 

refers to tax payments made in 2012 and 2013. Defendant claims 

that only four payments would have come due during that period. 

However, defendant did not submit any evidence or certification 

in support of his assertion. He failed to show that there were no 

past-due tax payments that would account for the fifth payment 

referred to in plaintiff's statement. 

Defendant's remaining arguments regarding the order striking 

his answer are without sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E). We note, however, that plaintiff established that 
7 A-0031-15T4

it possessed the original note and had a valid assignment of the 

mortgage before it filed its foreclosure complaint. Standing to 

foreclose may be established by either possession of the note or 

a valid assignment that predates the foreclosure complaint. 

Deutsche Bank Tr. Co. Ams. v. Angeles, 428 N.J. Super. 315, 318 

(App. Div. 2012). Therefore, plaintiff established standing to 

foreclose. 

We conclude that the trial court correctly found that 

defendant had not presented evidence raising a genuine issue as 

to any issue of fact pertaining to plaintiff's right to foreclose. 

The court did not err by granting plaintiff's motion to strike 

defendant's answer.

III.

We next consider defendant's contention that the trial court 

erred by denying his motion to vacate the final judgment of 

foreclosure pursuant to Rule 4:50-1. 

The rule provides that the court may relieve a party from a 

judgment for the following reasons:

(a) mistake, inadvertence, surprise, or 

excusable neglect; (b) newly discovered 

evidence which would probably alter the 

judgment or order and which by due diligence 

could not have been discovered in time to move 

for a new trial under [Rule] 4:49; (c) fraud 

(whether heretofore denominated intrinsic or 

extrinsic), misrepresentation, or other 

misconduct of an adverse party; (d) the 
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judgment or order is void; (e) the judgment 

or order has been satisfied, released or 

discharged, or a prior judgment or order upon 

which it is based has been reversed or 

otherwise vacated, or it is no longer 

equitable that the judgment or order should 

have prospective application; or (f) any other 

reason justifying relief from the operation 

of the judgment or order.

[R. 4:50-1.]

A trial court's decision on a Rule 4:50-1 motion is entitled 

to "substantial deference, and should not be reversed unless it 

results in a clear abuse of discretion." US Bank Nat'l Assoc. v. 

Guillaume, 209 N.J. 449, 467 (2012) (citations omitted). An abuse 

of discretion may be found when a decision lacks a "rational 

explanation," represents an inexplicable "departure from 

established policies," or rests "on an impermissible basis." Ibid. 

In this matter, defendant argues that he was entitled to 

relief under Rules 4:50-1(c) and (f). Defendant contends he 

submitted evidence to the trial court which shows that plaintiff 

did not have possession of the original note at any time during 

the foreclosure proceedings. Defendant asserts that plaintiff 

improperly relied upon a faxed copy of the original note. Defendant 

suggests that, since plaintiff submitted a faxed copy of the note, 

plaintiff did not have possession of the original. 

We find no merit in these arguments. As noted previously, Ms. 

Jones stated in her certification that plaintiff was in possession 
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of the original note when it filed its foreclosure complaint. 

Defendant did not submit any credible evidence to refute Ms. 

Jones's statement. The use of a faxed copy does not establish that 

plaintiff did not have the original note, or that plaintiff 

obtained the judgment as a result of a fraud or forgery. 

In any event, as we have explained, plaintiff established 

that it had a valid assignment of the mortgage. This was sufficient

to give plaintiff standing to foreclose. Angeles, supra, 428 N.J. 

Super. at 318. 

In addition, defendant suggests that the assignments may have 

been forged or otherwise unauthorized. In support of this 

assertion, defendant relies upon information apparently obtained 

from the internet website for Federal Home Loan Mortgage 

Corporation (Freddie Mac), in which Freddie Mac states it is the 

"owner" of defendant's mortgage and note. It is, however, unclear 

what Freddie Mac meant by its statement that it was the "owner" 

of the mortgage and note. 

We note that in the information obtained by defendant on the 

internet, Freddie Mac also states that the borrower should contact 

his "lender," which it defines as the company to which the borrower 

makes payments. Freddie Mac's general characterization of itself 

as the "owner" is insufficient to rebut plaintiff's assertion that 

it is the holder of the note and assignee of the mortgage. 
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We therefore conclude that defendant failed to establish any 

basis for relief under either Rules 4:50-1(c) or (f). Defendant 

presented insufficient evidence to show that plaintiff obtained 

the foreclosure judgment by means of a fraud or forgery. He also 

failed to show that there was any reason that would justify 

granting defendant relief from the judgment. 

We have considered defendant's other arguments and conclude 

that they are without sufficient merit to warrant discussion in 

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

Affirmed.