The opinion of the court was delivered by: Simandle, District Judge
This matter comes before the Court upon the motion of Plaintiff CIT Financial USA, Inc., ("CIT") for summary judgment pursuant to Fed. R. Civ. P. 56(c). Plaintiff brought this cause of action against defendants Antonio and Lisa Lopez ("Defendants") seeking to recover the outstanding amount on a defaulted loan for which Defendants signed a promissory note and personal guaranty. For the following reasons, CIT's motion for summary judgment will be granted.
The Court finds as follows: 1. Plaintiff CIT is a corporation organized under the laws of the State of Delaware, having it principal place of business at 1540 West Fountainhaed Parkway in Tempe, Arizona. CIT, previously named Newcourt Financial USA, Inc., is the successor-in-interest to Centaur Financial.
2. Defendants Antonio and Lisa Lopez received a loan from Centaur Financial Services, Inc., in the amount of $600,000, on or about December 7, 1999. The loan was secured by a promissory note (the "Note") and a personal guaranty (the "Guaranty"). (Compl. ¶ 7.) CIT recorded the loan when it filed a UCC-1 Financing Statement ("UCC-1"). (Id. at ¶ 17.)
3. The Defendants defaulted on their loan in or around May 2004. (Compl. ¶ 21.) CIT advised Defendants of their default by letters dated August 13, 2004, January 14, 2005 and January 17, 2005. (Id. at ¶¶ 22-23.)
4. CIT filed a complaint against Defendants on February 4, 2005 alleging breach of the Note, unjust enrichment, and breach of the Guaranty. [Docket Item No. 1.]
5. CIT filed a motion for summary judgment on January 5, 2006. The motion is unopposed.*fn1
6. On a motion for summary judgment, the court must determine whether "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999)(citing Fed. R. Civ. P. 56(c)). A party opposing summary judgment "must do more than simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the nonmoving party fails to oppose the motion by evidence such as written objection, memorandum, or affidavits, the court "will accept as true all material facts set forth by the moving party of affidavits as required by Rule 56(c), Fed. R. Civ. P., when Plaintiff's summary judgment motion is supported by (cont'd) affidavits. The allegation in Mr. Neder's letter, to the effect that his clients oppose summary judgment because they dispute the payment history, is insufficient to raise any issue of fact, since an affidavit is required setting forth admissible evidence as to the alleged factual dispute. Rule 56(e) also makes this clear:
...When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party.
Rule 56(e), Fed. R. Civ. P. Defendants had sufficient time to respond to the motion and failed to do so. Therefore, the Court will consider Plaintiff's motion for summary judgment unopposed under Rules 56(c) and 56(e), Fed. R. Civ. P. with appropriate record support." Anchorage Assocs. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990)(quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). If the nonmoving party has failed to establish a triable issue of fact, summary judgment will not be granted unless "appropriate," and only if movants are entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(e); see Anchorage Assocs., 922 F.2d at 175.
7. There is no disputed issue of fact as to the terms of the Note and Guaranty and Defendants' default and liability. The terms of the Note and Guaranty are clear and unambiguous. Under New Jersey law, the "construction of an unambiguous term in a contract is 'exclusively within the court.'" Nevets C.M. v. Nissho Iwai Am. Corp., 726 F. Supp. 525, 531 (D.N.J. 1989). "The question whether a term is clear or ambiguous is also a question of law." Id.
8. Under the terms of the Note and Guaranty, Defendants agreed to repay to Centaur Financial the principal amount of the loan plus interest over a period of 120 months. (Compl. at Ex. A.) Defendants were to make three monthly payments of $0.00, three payments of $2,267.00, three payments of $4,534.00, three payments of $6,801.00, and 108 payments of $9,068.00. (Id.) Pursuant to paragraph ten of the Guaranty, a borrower is in default of the loan if he "fails to make any payment due hereunder . . . ." (Guaranty at ¶ 10.) Upon default, "the entire unpaid indebtedness hereunder shall then become immediately due and payable without further notice . . . and the Borrower shall be liable to the holder hereof for reasonable attorney's fees and the cost incurred in collecting or enforcing such payment." (Id. at ¶1.) In addition, if a monthly payment is not made on time, the Note requires the borrower to "pay with respect to each overdue on demand (I) any collection agency fees and expenses, plus (II) a late payment service fee equal to the greater of fifteen dollars or 15% of the late payment (but not to exceed $50.00). . . ." (Id. at ¶ 9.)
9. Defendants timely made their monthly payments due under the Note between April 2000 and August 2002. (Pl.'s Mot. for Summ. J. at 7.) The monthly payments between September 2002 and April 2004 were made in full. However, the payments were received late. (Id. at 7-8.) Defendants have not made any payments since May 2004. (Id.) All of these assertions are proved by the detailed updated Affidavit of ...