The New Jersey Appellate Division recently denied a homeowner’s argument that a lender’s final judgment of foreclosure submission was improper because the lender submitted certifications of amount due and of diligent inquiry, rather than affidavits.  See Wells Fargo Bank, NA, v. Owens, 2019 WL 4184096 (N.J. Super. Ct. App. Div. Sept. 4, 2019).  In the case, the lender obtained a final judgment of foreclosure and went to sale.  The borrower then brought a motion to vacate the sale, arguing that the lender’s final judgment of foreclosure submission failed to comply with the requirements of Rule 4:64-2(b) and (d), which require an “affidavit of amount due” and an “affidavit of diligent inquiry.”  The borrower argued that the lender’s submission was insufficient because the lender submitted certifications rather than affidavits.  The trial court denied the motion.

On appeal, the Court affirmed.  In addition to the fact that vacating the judgment or sale would be a “futile proceeding” because the lender could just refile with affidavits, the Court found that there was no merit to the borrower’s arguments.  Under Rule 1:4-4(b), an affiant is permitted to submit a certification in lieu of any affidavit “required by these rules.”  Although the Court acknowledged that the Rules were recently amended to permit “a certificate or affidavit” under Rules 4:64-2(a) and (c)—but not 4:64-2(b) or (d)—“[w]e do not read the change in (a) and (c) to imply that certifications are not permitted under subsection (b) and (d).”  Additionally, the Court found that “the Supreme Court’s Special Committee on Residential Foreclosures, whose recommendations prompted the rule change, did not expressly discuss these amendments.  Had the Committee intended a substantive change in the Rule, we suspect it would have commented on it.”

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com or Dylan Goetsch at dgoetsch@riker.com.