NDF1, LLC v. EDWARD KITCHEN

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3725-20
NDF1, LLC,
Plaintiff-Respondent,
v.
EDWARD KITCHEN, his
heirs, devisees and personal
representatives and his or any
of their successors in right, title
and interest, KIMBERLY K.
KITCHEN, individually, and
as heir of EDWARD KITCHEN,
MR. KITCHEN, unknown spouse
of KIMBERLY K. KITCHEN,
individually, and as heir of
EDWARD KITCHEN,
Defendants-Appellants,
and
STATE OF NEW JERSEY and
UNITED STATES OF AMERICA,
Defendants.
_____________________________
Submitted December 14, 2022 – Decided August 8, 2023
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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Before Judges Accurso and Firko.
On appeal from the Superior Court of New Jersey,
Chancery Division, Mercer County, Docket No. F-
005640-20.
Steven D. Janel, attorney for appellants.
Stern & Eisenberg, PC, attorneys for respondent
(Salvatore Carollo, on the brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
In this contested residential mortgage foreclosure action, defendant
Kimberly K. Kitchen, individually and on behalf of her late husband's estate,
appeals from summary judgment striking her answer and from the subsequent
entry of final judgment in favor of plaintiff NDF1, LLC, the fifth holder of the
second mortgage on the home she has resided in since 2006. She contends the
trial court erred in entering summary judgment while discovery was ongoing,
as there are gaps in plaintiff's proofs, and in the face of genuine disputes over
material facts relating to her laches defense and the statute of limitations. She
also contends the court erred in entering final judgment on the amount plaintiff
claims was due, $131,091.64. Our review of the record convinces us that none
of those arguments is of sufficient merit to warrant extended discussion in a
written opinion. R. 2:11-3(e)(1)(E).
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The Chancery judge found the essential facts based on the certification
of plaintiff's asset manager Lauren Wilcox, and the facts admitted by
defendant in her answer and set forth in her certification. Defendant and her
late husband bought their home in 2006 with a $180,000 purchase-money
mortgage from Gateway Funding. She claims he wanted to take out a second
mortgage the following year. She agreed, and both signed a $70,000 fifteen-
year, fixed-rate promissory note to Yardville National Bank, secured by a
second mortgage on their home.
Wilcox averred, based on her personal knowledge attained from a review
of plaintiff's business records, which she certified were made at or near the
time of the events and maintained in the ordinary course of plaintiff's business,
that defendant and her husband defaulted on the Yardville note on August 28,
2008. Wilcox also averred the mortgage was subsequently assigned by PNC
Bank, NA, successor by merger to Yardville, to US Mortgage Resolution, LLC
in December 2018, as recorded in the Mercer County Clerk's Office. US
Mortgage thereafter assigned the mortgage in 2019 to New Day Funding, LLC,
which promptly assigned it to plaintiff, all as reflected in the Clerk's records.
On January 29, 2020, plaintiff sent defendant a notice of intent to
foreclose the mortgage based on the 2008 default, asserting a past due amount,
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without late fees, of $57,591.61. Defendant claims this was the first she knew
of the default. She averred her husband, who died in 2017, was secretive
about financial matters, and beyond signing the loan documents, she had "no
personal knowledge as to what payments were made, whether a default was
entered, or what the balance may be." She claimed she "certainly didn't see
any of the proceeds of the loan."
Plaintiff filed its foreclosure complaint in April 2020. Following the
setting aside of the entry of default, defendant filed her answer in October
2020, which plaintiff moved to strike the following January. Defendant
opposed the motion, arguing it was premature as discovery had not ended, and
the action was barred by the statute of limitations and laches, as the twelve-
year gap between the alleged default and the filing of the foreclosure
"significantly impaired" her ability to defend the action.
The Chancery judge rejected those arguments. He found no dispute that
plaintiff was the record holder of a valid assignment and could thus proceed to
foreclose the mortgage. He further found plaintiff had established a prima
facie right to foreclose based on Wilcox's certification, which fully complied
with the personal knowledge requirement of Rule 1:6-6 and Wells Fargo Bank,
N.A. v. Ford, 418 N.J. Super. 592, 599-600 (App. Div. 2011), and defendant
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had offered no proof of her own to put the facts Wilcox attested to in issue,
including that defendant and her husband missed the August 28, 2008
payment, causing the loan to go into default.
The judge found defendant's argument that the action was time-barred
under N.J.S.A. 2A:50-56.1 was simply wrong. Because the maturity date set
forth in the note was January 16, 2022, the judge ruled plaintiff had until 2028,
six years after the note matured, to file suit to foreclose the mortgage under
N.J.S.A. 2A:50-56.1, notwithstanding defendant's 2008 default. The judge
rejected defendant's subsequent objection to plaintiff's proof of amount due as
not comporting with the requirements of Rule 4:64-1(d)(3). He found
defendant had failed to make any specific objection to the amount due, but
only continued to assert the arguments she made in opposition to summary
judgment "as to the adequacy" of the proofs.
Defendant appeals, reprising the arguments she made to the trial judge.
We, of course, review "the grant of a motion for summary judgment de novo,
applying the same standard used by the trial court." Samolyk v. Berthe, 251
N.J. 73, 78 (2022). Doing so here provides us no basis to reverse the orders
defendant appeals.
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Defendant's main argument is that Wilcox's certification was inadequate
to support summary judgment, and plaintiff should have been made to produce
the records on which it relied in asserting the 2008 default. Although it is
certainly true our Supreme Court has cautioned trial courts against granting a
summary judgment motion before discovery has been concluded, Velantzas v.
Colgate-Palmolive Co., 109 N.J. 189, 193 (1988), we cannot find the court
erred in doing so here.
Critically, the court conducted a case management conference in this
matter shortly after defendant filed her answer, setting both a deadline for the
parties to propound written discovery as well as a discovery end date.
Defendant didn't send interrogatories or a request for production to plaintiff in
advance of that deadline. Indeed, she never sought discovery from plaintiff at
any time while the matter remained pending in the trial court. As we agree
with the trial judge that Wilcox's certification met the demands of both Rule
1:6-6 and Ford, we cannot find the court prematurely granted plaintiff
summary judgment striking defendant's answer based on discovery being
incomplete in view of defendant's failure to seek the documents she now
claims plaintiff should have produced.
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We likewise reject defendant's argument that the foreclosure was time-
barred by plaintiff's failure to have instituted suit within six years of the
default. As Judge Fisher explained in Deutsche Bank Trust Co. Americas as
Trustee for Residential Accredit Loans, Inc. v. Weiner, 456 N.J. Super. 546
(App. Div. 2018), until 2009 when N.J.S.A. 2A:50-56.1 became law, the
statute of limitations in a residential foreclosure was twenty years. Id. at 547.
On enactment, N.J.S.A. 2A:50-56.1 permitted a mortgagee to institute suit to
foreclose a residential mortgage from the earliest of three points:
• "Six years from the date fixed for the making of the
last payment or the maturity date set forth in the
mortgage or the note";
• Thirty-six years from the date the mortgage was
recorded or, if not recorded, from the date of
execution; and
• Twenty years from the date of a default that "has not
been cured."
[L. 2009, c. 105, § 1 (emphasis added).]
Here, the earliest date would be "[s]ix years from . . . the maturity date
set forth in the mortgage or the note . . . secured by the mortgage," ibid., that
is, January 16, 2022. Although the Legislature has since amended N.J.S.A.
2A:50-56.1 to shorten the statute of limitations in a residential foreclosure to
six years after date of default, L. 2019, c. 67, § 1 (codified at N.J.S.A. 2A:50-
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56.1(c)), section 2 of L. 2019, c. 67 provides: "[t]his act shall take effect
immediately and apply to residential mortgages executed on or after the
effective date." It is thus plainly inapplicable to this matter. See Johnson v.
Roselle EZ Quick LLC, 226 N.J. 370, 390 (2016) (explaining a decision on a
statute's retroactivity will be guided in the first instance by the plain language
of the statute).
We are sensitive to defendant's claims that the nearly twelve-year delay
in instituting the foreclosure action has made it difficult for her to recover
from her own records information about payments on this loan, particularly as
her husband, who apparently handled the family's finances, has passed away in
the interim.1 Our Supreme Court has, however, stressed the importance of
"statutes of limitations that have been fixed by the Legislature to create
defined and regularly applicable periods against which to determine
timeliness," and that it is "only the rarest of circumstances and only
overwhelming equitable concerns" where "laches might be applied so as to
1 There is no information in the record as to the reason for the delay.
Plaintiff's counsel speculates it likely had to do with this being a second
mortgage, and thus leaving aside the sums due on this mortgage, any purchaser
at sheriff sale, including the second mortgagee, would have to satisfy the
balance of whatever remained due on the first mortgage of $180,000 in order
to obtain clear title.
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shorten an otherwise permissible period for initiation of litigation." Fox v.
Millman, 210 N.J. 401, 422 (2012). Given that standard, we cannot find
plaintiff's foreclosure complaint barred by laches. Defendant's contention that
the court erred in entering final judgment in the amount due of $131,091.64 —
based on the same contentions underlying her arguments on summary
judgment — requires no further discussion. See R. 2:11-3(e)(1)(E).
Affirmed and remanded for further proceedings not inconsistent with
this opinion.2
2 The trial court granted defendant's motion to stay the sheriff's sale pending
resolution of this appeal. Given the writ of execution to the sheriff has likely
expired in the interim, we leave to the trial court the management of any
further proceedings, including the lifting of the stay on the sale.