US BANK TRUST, NATIONAL ASSOCIATION, ETC. VS. ROBERT A. BARD (F-009222-18, OCEAN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4371-18T4
US BANK TRUST, NATIONAL
ASSOCIATION, AS TRUSTEE
FOR BLUEWATER INVESTMENT
TRUST 2018-1,
Plaintiff-Respondent,
v.
ROBERT A. BARD,
Defendant-Appellant,
and
MRS. ROBERT A. BARD,
ELEANOR H. BARD, and MR.
BARD, husband of ELEANOR
H. BARD,
Defendants.
_______________________________
Submitted April 1, 2020 – Decided April 28, 2020
Before Judges Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. F-
009222-18.
Robert A. Bard, appellant pro se.
Michael Evan Eskenazi (Friedman Vartolo LLP),
attorney for respondent.
PER CURIAM
In this foreclosure action, defendant Robert A. Bard appeals from
February 15 and April 26, 2019 orders striking defendants' answer and granting
summary judgment in favor of plaintiff US Bank Trust NA. We affirm.
In 2008, defendants Robert and Eleanor H. Bard purchased a Long Beach
Township residence and executed a promissory note in favor of Wachovia
Mortgage, FSB in the amount of $634,000. The loan was modified in 2014 and
the modification agreement was recorded in 2015. Beginning in September
2017, defendants ceased paying the note and plaintiff filed a foreclosure
complaint in 2018. Defendants' answer contained several defenses, including
that plaintiff lacked standing to foreclose, and violated the New Jersey Fair
Foreclosure Act and the Consumer Fraud Act.
In December 2018, plaintiff moved for summary judgment and to strike
defendants' answer and defendants cross-moved to dismiss the complaint.
Plaintiff's motion attached proof of the following: the note, the modification
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agreement, assignment of the note to plaintiff in August 2018, and defendants'
default. Defendants filed opposition to the motion, repeating the defenses in
their answer, and also claimed there was no default because the terms of the note
permitted them the option to forego monthly installment payments and instead
pay the note in one lump sum on its maturity date, March 1, 2054.
The trial judge granted plaintiff's motion, denied defendants' cross-
motion, and made the following findings:
The defendants defaulted on . . . payment [of]
the mortgage by failing to make payments on
September 1st 2017. And remain[] in default having
failed to make the payments since that time.
The mortgage was assigned to plaintiff by
assignment dated August 16, 2018 and recorded that
same day. I'll note also that the plaintiff has certified
to possession of the note . . . prior to the filing . . . of
the complaint.
Notice of intent in [a] form compliant with the
Fair Foreclosure Act was sent to the defendants by
regular and certified mail . . . more than [thirty] days
prior to filing of the complaint in this matter . . . .
The defendants have not submitted any
certification opposing the summary judgment motion,
but ha[ve] filed a cross motion to dismiss the
foreclosure action. . . .
....
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In this case the [c]ourt is satisfied that the
plaintiff has established its prima facie right to
foreclose. It is an absolute right of the mortgagee to
foreclose and accelerate against a defaulting
mortgagor. Right to foreclose, the equity of
redemption arises when there is a default. . . . This
right is derived from the contract between the
mortgagor and the mortgagee.
....
The [c]ourt is satisfied that the plaintiff has
established its contractual rights through [its]
certification . . . attaching the mortgage and note.
....
I'll also note that plaintiff has established
default. The defendant has acknowledged failure to
pay, although he has asserted that he believed in his
interpretation of the note that he could just wait and
pay it all at the maturity date. The [c]ourt is satisfied
in reading the note that that is not an option. That the
note generally provides for monthly payments and
provides for a default upon failing to make the
monthly [payment].
In reading the note para materia it is clear that it
is contemplated that monthly payments would be
made. Those monthly payments include escrow
amounts, taxes and insurance that are required to be
paid. And the payments are made on a monthly basis
until the loan is amortized or fully paid, at which time,
. . . plaintiff may seek any balances that are due and
owing.
....
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The defendant's arguments . . . are without
support. I'll note that . . . the mortgage contract . . .
provides for monthly payments [in] paragraph [three],
payments [on] the first of each month. Further
paragraph [seven defines] defaults [as] failure to pay
within [fifteen] calendar days. Paragraph (b) talks
about default. The [c]ourt is satisfied that there's no
basis in applying contract law and the plain reading of
the agreement for anyone to conclude that you could
wait until the end and pay the mortgage.
On appeal, defendant argues the trial court erred in granting summary
judgment because there was a material dispute in fact as to whether defendants
defaulted as the alleged default did not occur unless they failed to pay the note
by its maturity date. Defendant argues plaintiff did not provide the trial court
with evidence it furnished defendants with notices pursuant to the Truth in
Lending Act (TILA) when the loan was modified. He also argues he was not
served with the notice of intent to foreclose.
Our review of an order granting summary judgment is de novo. Graziano
v. Grant, 326 N.J. Super. 328, 338 (App. Div. 1999). "[W]e review the trial
court's grant of summary judgment . . . under the same standard as the trial
court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,
224 N.J. 189, 199 (2016). The court considers all of the evidence submitted "in
the light most favorable to the non-moving party" and determines if the moving
party is entitled to summary judgment as a matter of law. Brill v. Guardian Life
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Ins. Co. of Am., 142 N.J. 520, 540 (1995). The court may not weigh the
evidence and determine the truth of the matter. Ibid. If the evidence presented
"show[s] that there is no real material issue, then summary judgment should be
granted." Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J. Super. 255, 258
(App. Div. 1987) (citing Judson v. Peoples Bank & Tr. Co. of Westfield, 17 N.J.
67, 75 (1954)).
The right to foreclose arises upon proof of execution, recording of a
mortgage and note, and default on payment of the note. Thorpe v. Floremoore
Corp., 20 N.J. Super. 34, 37 (App. Div. 1952). We affirm the judge's finding
defendants were in default and rejection of their unsupported assertion they had
until 2054 to pay the note. As the judge noted, the plain language of the note
and the modification agreement provided no support for defendants' theory,
clearly required regular monthly payments, and set a fifteen-day deadline before
defendants were considered in default. Defendants' unsupported theory did not
create a material dispute in fact thwarting the entry of summary judgment.
"[C]onclusory and self-serving assertions by one of the parties are insufficient
to overcome [summary judgment]." Puder v. Buechel, 183 N.J. 428, 440-41
(2005) (citations omitted).
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We reject defendants' argument relating to plaintiff's alleged failure to
furnish the trial judge with evidence of TILA compliant disclosures related to
the loan modification. This argument was not presented to the trial judge and
we decline to consider it on appeal. See Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234-35 (1973).
Finally, defendants' arguments relating to the sufficiency of the notice of
intent to foreclose do not constitute grounds for reversal. The record
demonstrates plaintiff sent each defendant notice by certified mail at their
residence, which was also the mortgaged property, and the address noted on
defendants' pleadings throughout these proceedings.
Affirmed.
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