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Wamco XV Ltd. v. Farrell

May 20, 1997

WAMCO XV LTD., PLAINTIFF-APPELLANT,
v.
RAYMOND P. FARRELL, JR., LOYOLA FEDERAL SAVINGS BANK, T/A LOYOLA CONSUMER SERVICES, INC., CAPITAL BANKERS LIFE INSURANCE COMPANY AND FIRST FIDELITY BANK, DEFENDANTS, AND LYNN FARRELL, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County.

Approved for Publication May 22, 1997.

Before Judges Landau and Wallace. The opinion of the court was delivered by Landau, J.A.D.

The opinion of the court was delivered by: Landau

The opinion of the court was delivered by

LANDAU, J.A.D.

This is an appeal by a mortgagee, plaintiff Wamco XV, Ltd. (Wamco), from an order of the Chancery Division granting summary judgment to defendant Lynn Farrell (Lynn) and denying its cross motion for summary judgment in a foreclosure suit.

In July 1978, defendant's husband Raymond Farrell (Ray) purchased a home at 4805 Fifth Avenue, Avalon, New Jersey, along with his then wife Mary Katherine Farrell (Mary Katherine). This property is the subject of the foreclosure action here. In 1985, Ray and Mary Katherine separated, with the wife leaving the marital home. They divorced in March 1990. Pursuant to the divorce agreement, Mary Katherine quitclaimed her interest in the property to Ray, who has since lived in the Avalon home.

Ray married defendant Lynn Farrell on April 9, 1990. She immediately moved into the Avalon residence with him.

On July 9, 1991 Ray granted Equibank a mortgage on his residence in Avalon as partial security for a loan modification agreement on loans to his businesses in 1989. *fn1 [] The mortgage document was signed by Ray but not by Lynn. Ray certified that although Equibank knew that he was married, he told Equibank that "under no circumstances would Lynn be part of this agreement and she would not be signing any such agreement." The certification is not disputed in this regard. Equibank accepted the mortgage.

A default subsequently occurred and forbearance agreements were entered among the borrowers and sureties named in footnote 1 below, Equibank, and eventually Equibank's successor by merger, Integra Bank-Pittsburgh (Integra). The forbearance agreements expired on July 1, 1994. Shortly thereafter, Integra assigned the loans and their security to Wamco.

On June 12, 1995, Wamco filed its complaint to foreclose the Avalon property in the Chancery Division, Cape May County. It amended the complaint to include Mary Katherine Farrell but then voluntarily dismissed the action as to her in September 1995.

Wamco amended its complaint a second time on September 14, 1995, to include Lynn Farrell "in order to foreclose any interest she may have as the spouse of Raymond P. Farrell, Jr. and in joint possession of the Mortgaged Land and Premises."

Lynn filed an answer on October 16, 1995 asserting that she is married to Raymond P. Farrell, Jr. and "as such is entitled to joint possession of the premises, which interest is superior to the ...


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