Failure To Properly Authenticate Paperwork Sinks Bank In Attempt To Establish Standing To Sue In NJ Foreclosure Action

A recent ruling by the New Jersey intermediate appellate court concluded that Wells Fargo Bank failed to properly authenticate paperwork submitted in an attempt to carry out a home foreclosure and accordingly, said that it failed to establish standing to maintain a foreclosure action.

The court found that the paperwork produced by the bank were enough to indicate that it could have standing, if properly authenticated, and then went on to say:

• However, the documents that Wells Fargo relied upon in support of its motion for summary judgment to establish its status as a holder were not properly authenticated.(1) A certification will support the grant of summary judgment only if the material facts alleged therein are based, as required by Rule 1:6-6, on "personal knowledge." See Claypotch v. Heller, Inc., 360 N.J. Super. 472, 489 (App. Div. 2003). Baxley's certification does not allege that he has personal knowledge that Wells Fargo is the holder and owner of the note. In fact, the certification does not give any indication how Baxley obtained this alleged knowledge. The certification also does not indicate the source of Baxley's alleged knowledge that the attached mortgage and note are "true copies."
  
  Furthermore, the purported assignment of the mortgage, which an assignee must produce to maintain a foreclosure action, see N.J.S.A. 46:9-9, was not authenticated in any manner; it was simply attached to a reply brief. The trial court should not have considered this document unless it was authenticated by an affidavit or certification based on personal knowledge. See Celino v. Gen. Accident Ins., 211 N.J. Super. 538, 544 (App. Div. 1986).
  
  For these reasons, the summary judgment granted to Wells Fargo must be reversed and the case remanded to the trial court because Wells Fargo did not establish its standing to pursue this foreclosure action by competent evidence. On the remand, defendant may conduct appropriate discovery, including taking the deposition of Baxley and the person who purported to assign the mortgage and note to Wells Fargo on behalf of Argent.

For the ruling, see Wells Fargo Bank, N.A. v. Ford, ___N.J. Super.___ (App. Div. January 28, 2011) (approved for publication) (when link expires, GO HERE).

Representing the homeowner in this case were Margaret Lambe Jurow (arguing) and Rebecca Schore (on brief) for Legal Services of New Jersey, Inc.(2)

For a discussion of a number of relevant issues to be addressed in this case, see New Jersey Appeals Court Shoots Down Foreclosure Over Bad Documents.

Thanks to Robert Napolitano for the heads-up on this ruling.

(1) The appeals court described the documents submitted to the court in this excerpt:

• This motion was supported by a certification of Josh Baxley, who identified himself as "Supervisor of Fidelity National as an attorney in fact for HomEq Servicing Corporation as attorney in fact for [Wells Fargo]." Baxley's certification stated: "I have knowledge of the amount due Plaintiff for principal, interest and/or other charges pursuant to the mortgage due upon the mortgage made by Sandra A. Ford dated March 6, 2005, given to Argent Mortgage Company, LLC, to secure the sum of $403,750.00." Baxley did not indicate the source of this purported knowledge. Baxley's certification also alleged that Wells Fargo is "the holder and owner of the said Note/Bond and Mortgage" executed by defendant and that the exhibits attached to his certification, which appear to be a mortgage and note signed by defendant, were "true copies." Again, the source of this purported knowledge was not indicated. The exhibits attached to the Baxley certification did not include the purported assignment of the mortgage.

(2) Legal Services of New Jersey, Inc. is an independent, non-profit organization that coordinates the statewide Legal Services system that provides free legal assistance to low-income people in civil matters in New Jersey.