THE BANK OF NEW YORK MELLON FKA THE BANK OF NEW YORK, AS SUCCESSOR TRUSTEE TO JPMORGAN CHASE BANK, NA, AS TRUSTEE FOR THE HOLDERS OF SAMI II TRUST 2006-AR6, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES v. WALCH et al

Filing 24

MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 5/3/2017. (seb)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THE BANK OF NEW YORK MELLON, :
:
:
Plaintiff,
:
:
v.
:
:
PETER WALCH, et al.,
:
:
Defendants.
:
__________________________________ :

CIVIL ACTION NO. 15-724 (MLC)
MEMORANDUM OPINION

COOPER, District Judge
Plaintiff Bank of New York Mellon filed this foreclosure action in New Jersey
Superior Court, Monmouth County, alleging that Defendants Peter Walch and Patricia
Walch1 had defaulted on their mortgage loan by failing to make their required mortgage
payments. (Dkt. 1-1.) 2 Defendants removed the matter to the United States District Court for
the District of New Jersey. (Dkt. 1.)
Plaintiff has moved for summary judgment against Defendants, moved to strike
Defendants’ Answer and Affirmative Defenses, moved to enter default against Defendants,
and moved to remand the matter to New Jersey Superior Court to proceed as an uncontested
foreclosure action, or alternatively, to allow the matter to proceed as an uncontested action
1

Bank of America, N.A. is also a named defendant in this matter, but these motions are directed
solely at Peter Walch and Patricia Walch. When using “Defendants,” we refer only to Peter Walch
and Patricia Walch, and not to Bank of America.
2

The Court will cite to the documents filed on the Electronic Case Filing System (“ECF”) by the
designation of “dkt.” Pincites reference ECF pagination.

before this Court. (Dkt. 20.) Plaintiff filed a brief in support of its motions. (Dkt. 20-1.)
Defendants filed a brief in opposition to the motions. (Dkt. 22.) Plaintiff filed a reply brief.
(Dkt. 23.)
We have considered all these filings, and will resolve the matter without oral
argument. See L.Civ.R. 78.1(b).
For the following reasons, we will grant Plaintiff’s motion for summary judgment, and
we will deny Plaintiff’s other motions.
BACKGROUND
Defendants Peter Walch and Patricia Walch (“Defendants”) purchased property
located at 20 Corso Reale, Morganville, New Jersey (“the Property”) on May 18, 2006. (Dkt.
20-2 at 1; dkt. 20-3 at 2–3; dkt. 20-4 at 21–27, 29–45.) On the same day, Defendants
executed a promissory note (“the Note”) and agreed to repay a loan from Countrywide Bank,
N.A. in the amount of $1,470,000.000. (Dkt. 20-2 at 1; dkt. 20-3 at 2; dkt. 20-4 at 21–27.)
Defendants also executed a mortgage (“the Mortgage”) that secured the Note with the
Property in favor of Mortgage Electronic Registration Systems, Inc. (“MERS”), as Nominee
for Countrywide Bank. (Dkt. 20-2 at 2; dkt. 20-3 at 3; dkt. 20-4 at 29–45.) The Mortgage
was recorded with the Monmouth County Clerk’s Office. (Dkt. 20-2 at 2; dkt. 20-3 at 3; dkt.
20-4 at 29.)
The Note contains a section pertaining to the borrower’s failure to pay as required:
(A) Late Charges for Overdue Payments
If the Note Holder has not received the full amount of any
Minimum Payment by the end of fifteen (15) calendar days after
the date it is due, I will pay a late charge to the Note Holder. The
amount of the charge will be 5.000 % of the Minimum Payment.
2

I will pay this late charge promptly but only once on each late
payment.
(B) Default
If I do not pay the full amount of each Minimum Payment on the
date it is due, I will be in default.
(C) Notice of Default
If I am in default, the Note Holder may send me a written notice
telling me that if I do not pay the Minimum Payment by a certain
date, the Note Holder may require me to pay immediately the
full amount of Principal that has not been paid and all the interest
that I owe. The date must be at least 30 days after the date on
which the notice is mailed to me or delivered by other means.
(D) No Waiver by Note Holder
Even if, at a time when I am in default, the Note Holder does not
require me to pay immediately in full as described above, the
Note Holder will still have the right to do so if I am in default at
a later time.
(E) Payment of Note Holder’s Costs and Expenses
If the Note Holder has required me to pay immediately in full as
described above, the Note Holder will have the right to be paid
back by me for all of its costs and expenses in enforcing this
Note to the extent not prohibited by applicable law. These
expenses included, for example, reasonable attorneys’ fees.
(Dkt. 20-4 at 24.)
In an Assignment of Mortgage dated June 13, 2011 (“the Assignment”), MERS
assigned the mortgage to Plaintiff The Bank of New York Mellon f/k/a the Bank of New
York, as Successor Trustee to J.P. Morgan Chase Bank, N.A., as Trustee for the Holders of
SAMI II Trust 2006-AR6, Mortgage Pass-Through Certificates, Series 2006-AR6
(“Plaintiff”). (Dkt. 20-2 at 2; dkt. 20-3 at 4; dkt. 20-4 at 90–92.) The Assignment was
recorded with the Monmouth County Clerk’s Office. (Dkt. 20-2 at 2; dkt. 20-3 at 4; dkt. 20-4
at 90.)
3

A corrective assignment of mortgage (“the Corrective Assignment”) was issued on
July 9, 2012 to correct a scrivener’s error in the original Assignment. (Dkt. 20-2 at 2; dkt. 203 at 4; dkt. 20-4 at 94–95.) The Corrective Assignment was recorded with the Monmouth
County Clerk’s Office. (Dkt. 20-2 at 2; dkt. 20-3 at 4; dkt. 20-4 at 95.)
Defendants failed to make the mortgage payment on July 1, 2010 and defaulted under
the terms of the mortgage loan. (Dkt. 20-2 at 2; dkt. 20-3 at 3; dkt. 20-4 at 24, 97.)
Defendants have not subsequently made a payment or otherwise cured the default. (Dkt. 20-2
at 2–3; dkt. 20-3 at 3; dkt. 20-4 at 57–88.)
Plaintiff, pursuant to the terms of the Note, elected to call due the entire amount of the
principal on the loan. (Dkt. 20-2 at 3; dkt. 20-3 at 3; dkt. 20-4 at 57–88.) On June 19, 2014,
Plaintiff, through its agent Nationstar Mortgage LLC, individually sent each Defendant a
notice of intent to foreclose upon the Property. (Dkt. 20-2 at 3; dkt. 20-3 at 3; dkt. 20-4 at
59–60, 75–76.) As of September 9, 2016, the unpaid principal balance, including interest
from July 1, 2010, was $1,627,897.33. (Dkt. 20-3 at 5; dkt. 20-4 at 97.)
Plaintiff filed a foreclosure action in the Superior Court of New Jersey, Chancery
Division, Monmouth County on January 22, 2015, naming Peter Walch, Patricia Walch, and
Bank of America, N.A. as defendants. (Dkt. 1-1.) On February 2, 2015, Defendants Peter
Walch and Patricia Walch filed a Notice of Removal to the United States District Court for
the District of New Jersey, 28 U.S.C. § 1441, on the basis of diversity jurisdiction, 28 U.S.C.
§ 1332(a). (Dkt. 1.)

4

Plaintiff moved for summary judgment3; to strike the Answer and Affirmative
Defenses filed by Defendants; to enter default against all defendants; and to remand this
matter to the Superior Court of New Jersey, Monmouth County to be referred to the Office of
Foreclosure to proceed as an uncontested matter, or, alternatively, to allow this matter to
proceed as uncontested in this Court. (Dkt. 20.)
DISCUSSION
I.

Motion for Summary Judgment
A.

Parties’ Arguments

Plaintiff argues that summary judgment is proper because there is no genuine issue of
material fact that they have made a prima facie case demonstrating their right to foreclose
under New Jersey law. (Dkt. 20-1 at 10–12.) Plaintiff further argues that Defendants are
unable to rebut this presumption of prima facie entitlement to summary judgment because
their affirmative defenses do not create any disputed issues of material fact. (Id. at 12–20.)
Plaintiff contends that it has standing to foreclose on the Property. (Id. at 13–16; dkt. 23 at 3–
5.)
Defendants contend that Plaintiff is not entitled to summary judgment. Defendants
argue that the evidence that Plaintiff relies upon is inadmissible, and thus cannot support an
entry of summary judgment. (Dkt. 22 at 9–10.) They also dispute that Plaintiff has the right
to foreclose because, according to them, Plaintiff does not own or control the Note. (Id. at 2–

3

This is a renewed motion for summary judgment. Plaintiff previously filed a motion for summary
judgment (dkt. 11), and we terminated that motion and granted leave for Plaintiff to file the motion
anew (dkts. 16, 19).

5

4.) Defendants further contend that the Assignment of the Mortgage to Plaintiff was invalid,
and that they have standing to challenge that assignment. (Id. at 4–9.)
B.

Legal Standard
1.

Summary Judgment

Summary judgment is proper “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). The non-movant must then present evidence that raises a genuine dispute of
material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Material facts
are those “that could affect the outcome” of the proceeding, and “a dispute about a material
fact is genuine if the evidence is sufficient to permit a reasonable jury to return a verdict for
the non-moving party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) (internal
citation and quotation omitted). This evidence may include “citing to particular parts of
materials in the record” or a “showing that the materials cited do not establish the absence or
presence of a genuine dispute, or that an adverse party cannot produce admissible evidence
to support the fact.” Fed. R. Civ. P. 56(c).
2.

Foreclosure

“The purpose of a foreclosure action is to determine the right to foreclosure and the
amount due on the mortgage, and to give the purchaser at the foreclosure sale the title and
estate acquired by the mortgagee, as well as the estate of the mortgagor at the time the
mortgage was executed, free from subsequent encumbrances.” Central Penn Nat’l Bank v.
Stonebridge, Ltd., 448 A.2d 498, 504 (N.J. Super. Ct. Ch. Div. 1982) (citations omitted).

6

When a foreclosure action is initiated, we generally apply the laws of the state where
the property is located. See Business Loan Ctr., L.L.C. v. Nischal, 331 F. Supp. 2d 301, 305–
06 (D.N.J. 2004) (applying New Jersey law when the property was located in New Jersey);
see also Ioselev v. Schilling, No. 09-6039, 2010 U.S. Dist. LEXIS 44425, at *10 (D.N.J. May
4, 2010) (applying Florida law because the property was located in Florida). The parties do
not dispute that this matter is governed by New Jersey law because the property at issue is
located in New Jersey.
“A mortgagee establishes a prima facie right to foreclosure when there is proof of
execution, recording, and non-payment of the mortgage.” Wells Fargo Bank, N.A. v. Bertea,
No. 13-7232, 2016 U.S. Dist. LEXIS 40191, at *7 (D.N.J. Mar. 28, 2016) (citing Thorpe v.
Floremoore Corp., 89 A.2d 275, 276 (N.J. Super. Ct. App. Div. 1952)). The “essential
elements” necessary for a foreclosure judgment to be granted in New Jersey are “the validity
of the note and mortgage; the alleged default; and the Bank’s right to foreclose.” Thomas v.
Jersey Mortg. Co., No. 13-648, 2016 U.S. Dist. LEXIS 121624, at *19 (D.N.J. Sept. 8, 2016)
(citing Great Falls Bank v. Pardo, 622 A.2d 1353, 1356 (N.J. Super. Ct. Ch. Div. 1993), aff’d
o.b., 642 A.2d 1037, 1039 (N.J. Super. Ct. App. Div. 1994)); see also Bertea, 2016 U.S. Dist.
LEXIS 40191, at *7 (noting these three elements are the “only material issues” in a
foreclosure proceeding). A bank’s right to foreclose includes its standing by assignment.
Siljee v. Atl. Stewardship Bank, No. 15-1762, 2016 U.S. Dist. LEXIS 63257, at *10–11
(D.N.J. May 12, 2016); Fraize v. Ginnie Mae, No. 14-7152, 2016 U.S. Dist. LEXIS 32489, at
*12 (D.N.J. Mar. 14, 2016). A mortgagor opposing summary judgment in a foreclosure
proceeding “has a duty to present facts to controvert a mortgagee’s prima facie case.” Bertea,
7

2016 U.S. Dist. LEXIS 40191, at *7 (citing Spiotta v. William H. Wilson, Inc., 179 A.2d 49,
54 (N.J. Super. Ct. App. Div. 1962), certif. denied, 181 A.2d 12 (N.J. 1962)).
C.

Analysis

Federal Rule of Civil Procedure 56(c)(2) requires evidence considered at the summary
judgment stage to be admissible at trial. At the outset, Defendants argue that Plaintiff relies
on inadmissible evidence to demonstrate its right to foreclose. (Dkt. 22 at 9–10.) Defendants
object to consideration of certain documents, claiming that that they would be inadmissible at
trial because there would no employee with personal knowledge available to authenticate
them. (Id. at 10.)
Evidentiary objections must be specifically made. Fed. R. Evid. 103(a)(1)(B).
Although Defendants do not cite a legal basis for their objection, we assume that their
argument rests in Federal Rule of Evidence 901. Rule 901(a) requires that evidence be
properly authenticated or identified. We reject Defendant’s argument that the various
mortgage documents cannot be authenticated. Rule 902 contains a list of evidence that
“require no extrinsic evidence of authenticity in order to be admitted.” We find that the
Mortgage, the Assignment of Mortgage, and Corrective Assignment of Mortgage are selfauthenticating documents. See Fed. R. Evid. 902(4) (“Certified Copies of Public Records”);
Fed. R. Evid. 902(9) (“Commercial Paper and Related Documents”).
We will next address Plaintiff’s prima facie case for its right to foreclosure, and then
we will turn to Defendants’ affirmative defenses.
Defendant does not challenge the first two elements of foreclosure—the validity of the
Note and Mortgage and that Defendants are in default. There is no factual dispute that these
8

elements are met. The Note and Mortgage are valid. Defendants executed and delivered the
Note to Countrywide Bank in the amount of $1,470,000 on May 18, 2006. (Dkt. 20-2 at 1;
dkt. 20-3 at 2; dkt. 20-4 at 21–27.) Defendants granted the Mortgage to MERS against the
Property in the same amount, and the Mortgage was properly recorded. (Dkt. 20-2 at 2; dkt.
20-3 at 3; dkt. 20-4 at 29–45.) Defendants defaulted by failing to make mortgage payments
beginning on July 1, 2010 and have not cured the default. (Dkt. 20-2 at 2–3; dkt. 20-3 at 3.)
The only element challenged here is whether Plaintiff has a right to foreclose on the
property. Defendants contest this right, as part of a challenge to Plaintiff’s standing to
foreclose. They argue that Plaintiff does not own or control the Note and thus cannot
foreclose. (Dkt. 22 at 2–4.) Defendants further contend that Plaintiff could not have legally
acquired mortgage loans after 2006. (Id. at 4–6.) Defendants also challenge the validity of
the Assignment of Mortgage. (Id. at 7–9.)
We find that there is no genuine issue of material fact Plaintiff has standing and a right
to foreclose on the Property.
“As a general proposition, a party seeking to foreclose a mortgage must own or control
the underlying debt.” Deutsche Bank Nat’l Trust Co. v. Mitchell, 27 A.3d 1229, 1234–35
(N.J. Super. Ct. App. Div. 2011). “It is well established in New Jersey that either possession
of the note or an assignment of the mortgage that predated the original complaint confers
standing on a party.” Grant-Covert v. Wells Fargo Bank, N.A., No. 15-6018, 2016 U.S. Dist.
LEXIS 30233, at *6–7 (D.N.J. Mar. 9, 2016) (citing Deutsche Bank Trust Co. Americas v.
Angeles, 53 A.3d 673, 675 (N.J. Super. Ct. App. Div. 2012)).

9

Defendants focus on 2006, but the relevant date for standing is the day that the
Complaint was filed—January 22, 2015. See dkt. 1-1 at 1; Mitchell, 27 A.3d at 1234–35.
There is no material dispute that Plaintiff had been assigned the Mortgage by that date.
MERS assigned the Mortgage to Plaintiff in an Assignment of the Mortgage dated June 13,
2011. (Dkt. 20-2 at 2; dkt. 20-4 at 90–92.) Subsequently, a Corrective Assignment of
Mortgage was issued July 9, 2012. (Dkt. 20-2 at 2; dkt. 20-4 at 94–95.) Both documents
were properly recorded. (Dkt. 20-4 at 90–92, 94–95.)
To the extent that Defendants seek to challenge the validity of the Assignment of
Mortgage, we agree with Plaintiff that they are unable to do so. Defendants are neither a
party nor a third-party beneficiary of the Pooling and Service Agreement, and they therefore
lack standing to challenge the Pooling and Service Agreement or the Assignment of
Mortgage. See Kin Wong v. Wells Fargo Bank N.A., No. 14-5204, 2015 U.S. Dist. LEXIS
142518, at *5–6 (D.N.J. Oct. 20, 2015); Eun Ju Song v. Bank of Am., N.A., No. 14-3204,
2015 U.S. Dist. LEXIS 6204, at *6 (D.N.J. Jan. 20, 2015).4
Defendants also cite potential tax consequences for Plaintiff arising from its status as a
Real Estate Mortgage Investment Conduit (“REMIC”) as a reason that Plaintiff cannot
foreclose. But those consequences are not relevant to the issues presented in this summary
judgment motion. Whether or not Plaintiff will face tax consequences does not impact the
underlying question of whether Plaintiff has a right to foreclose on the property.

4

Because we find there is no factual dispute that Plaintiff was assigned the Mortgage prior to the
filing of the Complaint, we need not alternatively address whether Plaintiff is in possession of the
Note.

10

In their Answer, Defendants averred four additional affirmative defenses other than
standing: (1) Plaintiff has failed to mitigate its damages, if any; (2) Plaintiff’s claims are
barred by the doctrine of estoppel; (3) Plaintiff’s claims are barred by the doctrine of unclean
hands; and (4) Plaintiff has failed to comply with the Fair Foreclosure Act of New Jersey,
N.J.S.A. 2A:50-53, et seq. (Dkt. 2 at 2.) In their opposition brief, Defendants do not develop
or argue any of these four affirmative defenses. Nor do Defendants ask for additional time to
complete discovery to obtain any necessary facts to support their affirmative defenses. See
Fed R. Civ. P. 56(d). Defendants have “a duty to present facts to controvert a mortgagee’s
prima facie case.” Bertea, 2016 U.S. Dist. LEXIS 40191, at *7 (citing Spiotta, 179 A.2d at
54). We find that Defendants have not met their burden for any of these four affirmative
defenses.
Defendants have not alleged any facts or presented any evidence in support of their
affirmative defenses of mitigation, estoppel, and unclean hands in either their Answer, (dkt.
2), or their opposition to the motion for summary judgment, (dkt. 22). See United States
Small Business Admin. v. Herbst, 2011 U.S. Dist. LEXIS 97059 at *14 & nn.3 & 4 (D.N.J.
Aug. 24, 2011). We thus find no genuine issue of material facts that rebuts the Plaintiff’s
prima facie right to foreclosure. See Bertea, 2016 U.S. Dist. LEXIS 40191, at *7.5
We also conclude that Defendants have not demonstrated how Plaintiff has failed to
comply with the Fair Foreclosure Act of New Jersey, nor how such a failure would negate

5

Additionally, with respect to mitigation, a bank’s alleged failure to mitigate its damage does not
negate the bank’s right to foreclose on the property, and is thus not a valid defense to liability. Wells
Fargo Bank, N.A. v. CCC Atl., LLC, No. 12-521, 2013 U.S. Dist. LEXIS 167325, at *9 (D.N.J. Nov.
21, 2013) (noting that failure to mitigate defense fails as a matter of law).

11

Plaintiff’s right to foreclosure. Defendants have alleged no facts—let alone evidence
supporting those facts that would create a genuine issue of material fact.
For the foregoing reasons, we find that Plaintiff has met its prima facie burden of
demonstrating a right of foreclosure and that none of the affirmative defenses put forth by
Defendants controvert this. We therefore conclude that there are no genuine issues of
material fact, and we will grant Plaintiff’s motion for summary judgment.
II.

Motion to Strike Answer and Affirmative Defenses and Motion for Entry of
Default
Plaintiff moves to strike Defendants’ Answer and Affirmative Defenses. Plaintiff also

moves to enter default against Defendants. We will deny both motions.
Plaintiff’s motion to strike was untimely. Defendants’ Answer was filed on February
2, 2015. (Dkt. 2.) Plaintiff filed its first motion to strike the Answer and the Affirmative
Defenses on April 7, 2016. (Dkt. 11.) This was past time under Rule 12(f)(2), which allows a
court to strike a defense “on motion made by a party either before responding to the pleading
or, if a response is not allowed, within 21 days after being served with the pleading.” Because
we grant summary judgment in favor of Plaintiff, we also decline to strike Defendants’
Answer and Affirmative Defenses on our own under Rule 12(f)(1). Motions to strike are a
“drastic remedy” and are “not favored and usually will be denied unless the allegations have
no possible relation to the controversy and may cause prejudice to one of the parties, or if the
allegations confuse the issues.” Tonka Corp. v. Rose Art Indus., 836 F. Supp. 200, 217
(D.N.J. 1993) (quotations omitted). “An affirmative defense can be stricken only if the
defense asserted could not possibly prevent recovery under any pleaded or inferable set of

12

facts.” Id. at 218 (quotation omitted). We have already adjudged that none of the affirmative
defenses present a genuine issue of material fact, and we see no need to sua sponte strike the
defenses at this point. Therefore, we will deny Plaintiff’s motion to strike Defendants’
Answer and Affirmative Defenses.
We will also deny Plaintiff’s motion to enter default against Defendants. Rule 55
provides that “[w]hen a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the
clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). These requirements are not met
here. Defendants have not failed to plead or otherwise defend. They have removed the
matter to federal court (dkt. 1), filed an Answer (dkt. 2), and opposed the initial motion for
summary judgment (dkt. 13) and this renewed motion for summary judgment (dkt. 22).
Further, even if we had granted Plaintiff’s motion to strike, Plaintiff cites no authority that
striking an answer and affirmative defenses under Rule 12(f) is grounds for the entry of
default.
III.

Motion for Remand to New Jersey Superior Court
Plaintiff moves to remand the matter to the Superior Court of New Jersey, Monmouth

County to proceed as an uncontested matter before the Foreclosure Office. (Dkt. 20-1 at
20–21.) Alternatively, Plaintiff requests that this matter proceed as uncontested before this
Court. (Id. at 21–22.)
Plaintiff bases its remand motion on its motions to strike and enter default being
granted. As discussed, supra, we will deny Plaintiff’s motion to strike and motion to enter

13

default. Thus, Plaintiff’s foundation for remand is moot, and there are no grounds for us to
remand the matter. Therefore, we will deny Plaintiff’s motion to remand.6
Plaintiff alternatively asks us to allow the matter to “proceed as an uncontested
foreclosure action such that a sale of the Property could ultimately be held by the United
States Marshals Service.” (Dkt. 20-1 at 21–22.) Plaintiff argues that this was the result
reached by the court in Bertea. (Id. at 22.) Plaintiff also notes that if both of its proposed
forms of relief were denied, then Plaintiff would be without any viable options to foreclose on
the Property, thereby creating an undue windfall for Defendants who have lived in the
Property since July 2010 without making any mortgage payments. (Id.) Defendants did not
respond to this alternate argument in their opposition brief.
Because this matter is not uncontested, we must deny Plaintiff’s requested relief. We
cannot allow the matter to proceed uncontested as Defendants are still actively opposing
Plaintiff’s foreclosure action.
We also disagree with Plaintiff’s reading of Bertea as allowing the bank to pursue the
matter as an uncontested foreclosure action leading to a foreclosure sale by the Marshals
Service. In Bertea, the bank’s motion for summary judgment went unopposed by the
defendants, who had “stopped participating in the case.” Bertea, 2016 U.S. Dist. LEXIS
40191, at *3–4, *9–10. The court granted summary judgment to the bank, but denied the
bank’s motion to remand the matter to New Jersey state court to let the bank pursue the matter
6

Even if we were to grant Plaintiff’s motions to strike and enter default, we could not remand the
matter for the reasons previously given. See dkt. 16 at 2–3. Additionally, absent Defendants Peter
Walch and Patricia Walch, this Court would still nonetheless have jurisdiction given the diverse
citizenship between Plaintiff and Defendant Bank of America, N.A., which remains a party to this
action.

14

as an uncontested foreclosure. Id. at *8–9. Instead, the court ordered “that Plaintiff shall
submit an appropriate form of foreclosure final judgment for the Court to consider.” Id. at
*10. The court order does not mention a potential foreclosure sale by the Marshals Service.
See id. There is also no indication whether the bank would have sought to enforce such an
order in federal court or in state court.7 If Plaintiff wishes this Court to consider issuing a
foreclosure final judgment order—as proposed in Bertea—then it may seek to do so, and
Defendants shall have the opportunity to respond.
We deny Plaintiff’s motion to remand the matter to state court. We also deny
Plaintiff’s alternative proposal to permit the matter to proceed uncontested before this Court.
The parties remain free to move for any other relief that they may believe proper or
necessary.8
CONCLUSION
For the reasons stated above, we (1) grant Plaintiff’s motion for summary judgment as
to Defendants Peter Walch and Patricia Walch; (2) deny Plaintiff’s motion to strike
Defendants’ Answer and Affirmative Defenses; (3) deny Plaintiff’s motion to enter default
against Defendants; and (4) deny Plaintiff’s motion to remand the matter to the Superior
Court of New Jersey, Monmouth County Office of Foreclosure to proceed as an uncontested
matter, or, alternatively, to allow this matter to proceed as uncontested in this Court.
We will enter an appropriate order and judgment.
7

It appears that the plaintiff has yet to file such a proposed order on the docket. See Docket, Wells
Fargo Bank, N.A. v. Bertea, Case No. 13-cv-7232.
8

If Plaintiff moves for a court-ordered foreclosure sale by the Marshals Service, then we advise
Plaintiff to provide legal support for a federal court’s authority to do so because, as discussed, we are
not persuaded that Bertea granted such relief.

15

s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge

Dated: May 3, 2017

16