This opinion shall not "constitute precedent or be binding upon any court. Mortgageit , and both defendants contemporaneously executed a mortgage in favor of Mortgage Electronic Registration Systems, Inc. MERS , as nominee for Mortgageit. Defendants entered into unrecorded loan payment agreements with plaintiff in , and They ultimately failed to make the required monthly payments and were in default as of July 1, Defendants filed an answer, asserting various affirmative defenses, including the statute of limitations SOL , and a counterclaim alleging violation of the Consumer Fraud Act, N.
Shortly thereafter, plaintiff moved for summary judgment striking the answer as insufficient as a matter of law, and seeking transfer to the foreclosure unit as an uncontested case. Plaintiff relied upon the affidavit of Arlene Lieberman, a portfolio manager who was familiar with plaintiff's business records. Lieberman explained in detail the terms and conditions of the various loan modification agreements, which were attached to her affidavit.
Defendants' payments made pursuant to the two initial loan modification agreements were applied only to interest. Defendants cross-moved to dismiss the complaint relying on Michele's certification in support. Michele did not contradict the prior procedural history or facts alleged in the complaint, noting a foreclosure judgment was entered in March causing defendants to file for bankruptcy.
She acknowledged the bankruptcy petition was discharged in October Michele claimed plaintiff's loan modification agreements were "confusing," and she and her husband "did not fully understand" them. Michele asserted plaintiff's complaint was barred by the applicable SOL because it was not filed within six years of the original default declared by TCIF in Defense counsel relied upon an unpublished Bankruptcy Court decision, Washington v.
Plaintiff filed a reply certification from Lieberman that further explained the history of defendants' loan. She noted that defendants made payments under the original loan for less than one year before defaulting, and TCIF accelerated the maturity date for the loan as permitted by the promissory note. TCIF obtained a final judgment in foreclosure in , which was never vacated. TCIF assigned the mortgage, note and judgment to plaintiff, but the bankruptcy court's stay in effect at the time prevented plaintiff from executing on the judgment.
When defendants were discharged from bankruptcy, they agreed to modify the loan in lieu of plaintiff executing on the foreclosure judgment.
After two temporary modifications in and , the parties executed a permanent modification in that kept defendants "in their home" and recast the terms of the note, reducing the interest rate and fully amortizing the loan in monthly payments, but extending the term of the loan. Defendants made payments under this agreement from December through May , but again defaulted, resulting in plaintiff's foreclosure complaint.
Judge David F. Bauman heard oral argument on the motion and cross-motion. Defendants argued their interest-only payments made for three years under the loan modification agreements denied them any accumulation of equity in their home. Noting it was early in the litigation and there had been no discovery, defense counsel asserted plaintiff had engaged in an "unconscionable practice" under the CFA, and also reiterated that the complaint was barred by the SOL. Judge Bauman entered an order on May 12, , granting plaintiff's motion and denying defendants' cross-motion.
In a written statement of reasons, the judge cited N. Although the Bankruptcy Court in Washington concluded acceleration upon default advances the "maturity date" of the note, thereby commencing the limitations period, Bankr. He reasoned there were no modification agreements executed in Washington, whereas defendants had executed three of them, most recently in December The judge found "[t]his new agreement re-sets the statute of limitations from [the] initial default in Defendants contend the judge erred in granting plaintiff's motion to strike pursuant to Rule e because it relied upon "matters outside the pleading.
We have considered these contentions in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Bauman.
We add only the following. Defendants' procedural argument overlooks the express terms of Rule , which provides:. Plaintiff's motion was expressly denominated as a summary judgment motion, and defendants were given a full and fair opportunity to rebut Lieberman's factual claims.
However, Michele's certification, filed in support of defendants' cross-motion, failed to do so. Judge Bauman properly rejected defendants' claim that the lack of discovery forestalled the grant of summary judgment. Quinn, N. Lawson-Bell, N. The motion record in this case was quite extensive, containing every important document and certifications from both sides that established the uncontested facts.
Defendant has failed to identify what further discovery was necessary. Turning to defendants' substantive arguments, when reviewing the grant of summary judgment, we analyze the decision applying the "same standard as the motion judge.
Igdalev, N. Bhagat, N. Defendants argue they presented "cognizable" CFA and common law fraud claims that should not have been dismissed, and these claims presented an equitable bar to plaintiff's foreclosure complaint.
We disagree. Allegations of fraud must be pled with specificity and a litigant's failure to do so should result in dismissal of the complaint.
State, Dep't of Treasury v. Qwest Commc'ns Int'l, Inc. Alleged violations of the CFA must also be pled with the same level of specificity. Hoffman v. Hampshire Labs, Inc. Usually, a dismissal for failure to comply with Rule a is without prejudice to a litigant's right to amend the pleading, Rebish v. Great Gorge, N. In March , defendants entered into a temporary loan modification agreement with plaintiff, which by then had taken assignment of the mortgage. Defendants made payments to plaintiff during the next two years.
Defendants asserted that in March , plaintiff refused to continue with the modification and commenced foreclosure proceedings after defendants defaulted. Defendants acknowledged service of the foreclosure complaint and filing their answer.
They also admitted knowledge that their answer had been stricken and that plaintiff had moved for final judgment. They claimed that once their counsel served an objection on the AOF, however, they were "told that the next step would be a hearing to determine the value of the Note. Defendants also attached documents that allegedly demonstrated a timely rescission of the loan, that the mortgage had been discharged of record in March , and that plaintiff was not legally formed as a company until October , more than two months after the date in the assignment of the mortgage and note by MERS.
In opposition, plaintiff's portfolio manager, Arlene Lieberman, certified that plaintiff bought the note and mortgage in January , and the assignment from MERS was recorded in March , well after plaintiff was formed. She further claimed that plaintiff was in possession of the original note, mortgage and assignment when it filed the foreclosure complaint. Lieberman also certified that during the term of the restructured payment agreement, defendants were late with monthly payments twenty-one of twenty-two months, and "bounced" seven checks, leading plaintiff not to renew the agreement after After considering oral argument, Judge Contillo found that defendants had failed to raise rescission as a defense in their pleadings, nor had defendants ever attempted to set aside the March order that struck their pleadings and ordered the litigation to proceed as an uncontested case.
Judge Contillo explained, "[t]he facts about the rescission were known to the family at the time of the. It can't be that we litigate and then as years go by things occur to us that we now seek to revisit.
He denied the motion, entered a conforming order, and this appeal followed. Before us, defendants argue Judge Contillo erred in denying their motion to vacate the October default judgment because he failed to appreciate the "various frauds, misrepresentations[] and misconduct" of plaintiff. In a single sentence, defendants also claim the judgment was "void" because there "was no loan to foreclose on," assumedly because the loan had been rescinded and the mortgage had been discharged.
Additionally, defendants argue plaintiff's proofs were insufficient because Lieberman's certification was hearsay and not based upon personal knowledge. We reject these arguments and affirm. We begin by recognizing that a motion seeking relief under Rule is addressed to the motion judge's sound discretion, and we will not disturb that decision unless it resulted from a clear abuse of discretion. US Bank Nat'l Ass'n v. Guillaume, N.
EDS, N. Realty Constr. In asserting that relief is appropriate based upon fraud, a party must "allege with specificity the representation, its falsity, materiality, the speaker's knowledge or ignorance, and reliance.
Palko, 73 N. In the context of a motion under subsection c of the Rule seeking to vacate a judgment that followed trial, we said that. We have held that "a foreclosure judgment obtained by a party that lacked standing is not 'void' within the meaning of Rule d. Russo, N. In rejecting a late-asserted claim that a default judgment in favor of a foreclosing creditor was void because the plaintiff lacked standing, we have specifically said that "[i]n foreclosure matters, equity must be applied to plaintiffs as well as defendants.
Americas v. Angeles, N. We agree with Judge Contillo that defendants, with full knowledge of the facts that allegedly supported their claim for rescission, failed to request that equitable relief in their pleadings. Knowing that their answer had been stricken in March , defendants never sought reconsideration of that order based upon their alleged efforts to rescind or the filed discharge of the mortgage.
Finally, although it is undisputed that plaintiff did not serve the October final judgment upon defendants, defendants admit that they knew of the final judgment before bringing their prerogative writ action against the AOF in January , and never named plaintiff as a party to that action. Moreover, while we might agree that the filed discharge of mortgage, if authentic, raises some concerns, defendants have failed to adequately address how, if at all, its existence demonstrates plaintiff proceeded in fraudulent fashion.
This is particularly true in light of defendants' course of conduct after attempting to rescind, i. Lastly, the majority of defendants' brief is spent debunking the ability of plaintiff to foreclose based upon evidential inadequacies in the original documents supporting the motion to strike, and in Lieberman's certification in opposition to the motion to vacate.
These arguments lack sufficient merit to warrant extensive discussion in a written opinion. We do not quarrel with defendants' lengthy exposition of the legal principles involved. However, we fail to see what inadequacies exist. Lieberman certified: "I am the portfolio Manager for Lynx.
0コメント