New Jersey’s Appellate Division recently affirmed a trial court’s order granting a lender summary judgment on its foreclosure action and holding that the lender was not required to resend a notice of intention to foreclose (“NOI”) after being assigned the mortgage. See U.S. Bank Trust, N.A., as Trustee for LSF9 Master Participation Trust v. Thomas, 2018 WL 4924377 (N.J. Super. Ct. App. Div. Oct. 11, 2018). In the case, the defendant borrower defaulted on his loan in 2012, and in 2013, the loan servicer for the mortgagee at the time sent an NOI. The mortgage was later assigned to plaintiff, who commenced the foreclosure action in December 2015. The trial court granted plaintiff’s motion for summary judgment and defendant appealed, arguing, among other things, that plaintiff was required to send its own NOI before foreclosing and could not rely on one sent by its assignor. After the Appellate Division remanded to make additional factual findings, the trial court again found that plaintiff was entitled to summary judgment, and defendant appealed.
On appeal, the Appellate Division affirmed the trial court’s decision. The Fair Foreclosure Act (the “FFA”) requires that a residential mortgage lender send an NOI to a debtor before bringing a foreclosure action, and the NOI must include the lender’s name, address, and telephone number in case the debtor “disagrees with the lender’s assertion that a default has occurred or the correctness of the mortgage lender’s calculation of the amount required to cure the default.” Defendant argued that plaintiff’s failure to reissue an NOI with plaintiff’s contact information meant it could not foreclose under the FFA. The Court disagreed. Although the FFA “is silent as to whether a subsequent assignee lender may rely upon an NOI sent by a predecessor lender,” the Court found that plaintiff was entitled to rely on its assignor’s NOI based on “the unique factual circumstances of this case.” Specifically, the Court noted that more than two years had passed since the NOI in 2013, during which defendant made no attempt to either cure his default or seek a modification. Thus, “the NOI did not pose a barrier to defendant curing, or attempting to cure, his default. Defendant had ample notice of an impending foreclosure action and simply failed to act.”