Plaintiff moves for an order granting summary judgment and for an order striking defendants' answer on the grounds that the answer sets forth no defense sufficient in law or, in the alternative, granting plaintiff leave to proceed to enter judgment pursuant to R. 4:64.
This action was brought to foreclose a mortgage in the sum of $50,000 made by defendants on the premises located at 611 Carlyle Place, Union. The suit is based on an alleged default in the terms of the mortgage arising out of defendants' failure to occupy the premises as their primary place of residence.
The mortgage loan application asked, "Will you occupy the property?" Defendants responded by checking "yes." The application also asked "When" and defendants answered by writing "passing of title."
The mortgage loan commitment contained the following language:
2. All statements made in the application submitted by the borrowers are incorporated herein and made part of this commitment, which shall be subject to cancellation if such statements are not correct;
8. The mortgage shall become immediately due and payable at the option of the Association upon any change in ownership of the mortgaged premises; or, if the mortgaged premises are not owner occupied and are not the primary place of residence of the owners during the term of mortgage.
The mortgage contained the following condition:
And it is further agreed that, if the mortgaged premises are not used as the primary place of residence and are not occupied by the Mortgagor during the term of the mortgage loan, then and in such event, the aforesaid principal sum with accrued interest shall, at the option of the Mortgagee, become due and payable immediately, anything herein contained or contained in the Bond to the contrary notwithstanding.
The mortgage loan commitment was dated on April 4, 1979 and the mortgage and bond were executed on April 20, 1979. On or about October 2, 1979 plaintiff learned that the premises were not occupied by the owner but rather were occupied by tenants. There is nothing in the record to indicate that plaintiff waived the conditions or obligations contained in the mortgage commitment or the mortgage. Upon discovering that the premises were not owner-occupied, plaintiff called the mortgage and demanded that the balance due thereon be paid in full no later than November 9, 1979. Defendants have not made this payment and the premises continue to be tenant occupied.
Defendants have filed an amended answer which states by way of an affirmative defense that the acceleration clause and mortgage requirement that defendants reside in the mortgaged premises are unconscionable, inequitable, create a forfeiture and thus are of no force and effect.
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment as a matter of law. R. 4:46-2. The moving party must sustain the burden of showing that there are no genuine issues of material fact. All inferences of doubt are drawn against the movant ...