US BANK NATIONAL ASSOCIATION, ETC. VS. CARMINE CHIMENTO (F-064312-09, MORRIS COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 4, 2019
• Docket: A-1410-17T3
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1410-17T3

US BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR CMALT REMIC SERIES 2007-A5-REMIC PASS-THROUGH CERTIFICATES SERIES 2007-A5,

Plaintiff-Respondent,

v.

CARMINE CHIMENTO and DEBORAH CHIMENTO,

Defendants-Appellants. ___________________________________

Submitted January 8, 2019 – Decided March 4, 2019

Before Judges Gilson and Natali.

On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. F- 064312-09.

Christopher J. O'Rourke, attorney for appellants.

Ballard Spahr, LLP, attorneys for respondent (William J. DeSantis, on the brief). PER CURIAM

In this residential foreclosure matter, defendants Carmine and Deborah

Chimento appeal from a September 27, 2013 order granting summary judgment

to their lender and an October 17, 2017 final judgment of foreclosure.

Defendants contend that there were material fact disputes concerning whether

the lender agreed to modify the terms of their loan. Discovery revealed no

credible evidence of such a modification and no written modification.

Therefore, we affirm.

The facts concerning the loan and default are undisputed. In March 2007,

defendants borrowed $504,000 from Superior Mortgage Corporation. In

connection with that loan, defendants executed a note and a mortgage on their

home. In March 2009, defendants applied for a loan modification. The

requested modification was not approved and there is no evidence of a written

loan modification.

In April 2009, defendants defaulted on the loan and they have not made

any payments since. While defendants have remained in the home, plaintiff has

paid over $71,000 in real estate taxes and homeowner's insurance for the

property.

A-1410-17T3 2 In December 2009, the mortgage was assigned to CitiMortgage, Inc.

(Citi). Shortly thereafter, Citi filed a foreclosure complaint. Defendants

responded with a contesting answer and counterclaim. Thereafter, the parties

engaged in mediation and discovery.

In June 2013, Citi moved for summary judgment. In opposition,

defendants argued that Citi had agreed to a loan modification in 2009. Despite

engaging in discovery, defendants had no evidence of a written loan

modification. Instead, discovery established that defendants had applied for a

modification, but the modification had never been granted. In a deposition,

Carmine Chimento admitted that he was not aware of any written loan

modification. The Chancery court gave defendants an extension to conduct

further discovery. The court then heard oral argument and pointed out that there

was no evidence of an oral or written loan modification, and, therefore, granted

summary judgment to Citi in an order entered on September 27, 2013.

In June 2015, Citi assigned the mortgage to plaintiff, US Bank National

Association as Trustee for CMALT REMIC Series 2007-A5-REMIC Pass-

Through Certificates Series 2007-85 (US Bank). US Bank was then substituted

in as the named plaintiff.

A-1410-17T3 3 A final judgment of foreclosure was entered on October 17, 2017. By that

time, the loan with interest and advances by plaintiff amounted to just over

$829,000.

On this appeal, defendants make two arguments. They contend that they

were entitled to further discovery concerning whether there was a loan

modification. They also argue that plaintiff acted in bad faith in dealing with

them concerning the loan modification and in the discovery process. These

arguments lack sufficient merit to warrant extended discussion in a written

opinion. R. 2:11-3(e)(1)(E).

After being given the opportunity to conduct discovery, defendants

presented no evidence of a loan modification. The only evidence in the record

is an application for such a modification and an indication that there were some

discussions about that modification. There is no evidence, however, that a

modification was approved or put in writing. The applicable statute of frauds

requires a writing signed by the lender if a loan exceeds $100,000. N.J.S.A.

25:1-5(f) and (g). Those statutory provisions apply to a loan modification. See

Nat'l Cmty. Bank of N.J. v. G.L.T. Indus., Inc., 276 N.J. Super. 1, 4 (App. Div.

1994).

A-1410-17T3 4 There is also nothing in the record to support defendants' contention that

the bank acted in bad faith in connection with the requested loan modification

and discovery. Instead, defendants simply make an unsupported assertion.

What is not in dispute is that defendants borrowed over $500,000, executed a

note and mortgage, and defaulted on the note and mortgage. Moreover, the

default occurred in 2009, and defendants have failed to pay their mortgage or

property taxes since that time.

Affirmed.

A-1410-17T3 5