On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, F-14855-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 5, 2007
Before Judges Payne and Sapp-Peterson.
Defendant, Francisca Mendoza, appeals from an order of summary judgment entered against her in a foreclosure action instituted by plaintiff, Impac Funding Corporation, Mendoza's mortgage lender.
On appeal, Mendoza raises the following arguments:
I. CONTESTED FORECLOSURE CASES ARE SUBJECT TO RULES OF DISCOVERY AS SET FORTH IN GUIDELINES FOR CHANCERY DIVISION JUDGES; TRIAL COURT FAILED TO CONDUCT A FULL AND FAIR HEARING ON THE ISSUE.
II. TRUTH IN LENDING ACT; CONSUMER FRAUD ACT; REAL ESTATE SETTLEMENT PROCEDURES ACT AND COMMON LAW FRAUD PERMIT A BORROWER TO OBTAIN ALTERNATIVE MEANS OF RELIEF; RESCISSION OF LOAN, SET OFFS, RECOUPMENT. TRIAL COURT ERRED BY FAILING TO RULE ON APPELLATE'S RIGHT TO RESCIND AND/OR SEEK OTHER RELIEF.
In response, Impac asserts that the court properly granted summary judgment in its favor in the absence of any disputed issue of material fact, and that any right to rescind the loan that Mendoza may have possessed had expired at the time of her default.
The record reflects that, in order to purchase residential property located in Leonia, Mendoza, a professional concert violinist, obtained a thirty-year adjustable rate loan from Impac in the amount of $382,000, secured by a mortgage, at an initial interest rate of 8.25%. The note required monthly payments of $3,729.16, including insurance and taxes, and permitted acceleration of the principal balance due upon default. Mendoza closed on the loan on October 23, 2002. Dissatisfied with the loan's terms, Mendoza alleges that she unsuccessfully sought to refinance, and in April 2006, after sporadic payments, she entirely ceased efforts to satisfy her loan obligation. Notice of intention to foreclose was provided,*fn2 and a foreclosure action was instituted by complaint filed on August 21, 2006.
Mendoza answered the complaint, counterclaimed and served a demand for production of documents seeking copies of all documents relating to the procurement and servicing of the loan and mortgage, the loan and mortgage documents themselves, disclosure and closing documents and a variety of other materials. In her pro se answer and counterclaim, replete with citations to legal reference sources, statutes and case law, Mendoza alleged mortgage lending and servicing fraud pursuant to unspecified provisions of the federal Fair Debt Collection Practices Act, 15 U.S.C.A. §§1692-92o, the New Jersey Fair Foreclosure Act, N.J.S.A. 2A:50-53, the federal Real Estate Settlement Procedures Act, 12 U.S.C.A. §§2610-17, and the federal Truth in Lending Act, 15 U.S.C.A. § 1601-67f, as well as the common law. As relief, she sought dismissal of the complaint and a judgment in her favor, along with recoupment of alleged overpayments of fees, charges and other related costs; rescission of the loan; and title to the property without further payments on her part.
By motion returnable on January 5, 2007, Impac sought summary judgment and an order striking Mendoza's answer, on the ground that the answer failed to set forth a defense sufficient in law, and dismissing Mendoza's counterclaim. In a statement of material facts, dated November 27, 2006, that accompanied the motion, Impac's counsel stated that Mendoza had made sporadic payments through March 1, 2006, and had made none thereafter. A foreclosure specialist*fn3 certified that $395,881.65 was presently owing on the accelerated loan obligation.
In opposition to summary judgment, Mendoza asserted that discovery from Impac was incomplete and that documentation in support of Impac's motion was "flimsy." Additionally, Mendoza claimed that there was a last minute modification in the terms of the loan, but she was told at the closing that there was nothing she could do to change the papers, except to rescind. Mendoza characterized Impac's tactics as a "bait and switch."
A hearing on the motion was held. At the hearing, counsel for Impac argued that Mendoza's answer and counterclaim were identical to those submitted by another defendant in an unrelated foreclosure action heard earlier in the year, and that the pleadings were form in nature. Counsel additionally asserted that no evidence of payment after April 2006 had been provided, and that nothing in the pleadings or Mendoza's subsequent opposition to ...