                NOT FOR PUBLICATION WITHOUT THE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,
                                      APPROVED FOR PUBLICATION
v.
                                           November 16, 2018

JAVIER TORRES,                           APPELLATE DIVISION


      Defendant-Appellant,

and

MRS. JAVIER TORRES, his wife,
and DORA M. DILLMAN,

     Defendants.
______________________________

           Argued September 13, 2018 – Decided November 16, 2018

           Before Judges Fuentes, Accurso and Moynihan.

           On appeal from Superior Court of New Jersey,
           Chancery Division, Bergen County, Docket No. F-
           001463-15.

           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.
            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.



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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 non-

moving 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



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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.


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            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-


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           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.




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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



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                                        7
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.




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                                        8
            [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 claimed-

lost 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




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                                       9
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."


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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 ord er 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 common-

law 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."


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      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.




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      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




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                                        13
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 prepa ration

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.


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      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 non-

moving 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



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                                       15
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.



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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.




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