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First American Title Insurance Co. v. Leonardo

January 17, 2008

FIRST AMERICAN TITLE INSURANCE COMPANY, PLAINTIFF-RESPONDENT,
v.
GIOVANNI LEONARDO DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket Nos. C-292-04 and C-39-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 8, 2007

Before Judges Cuff and Simonelli.

This matter involves defendant's default on two mortgage notes. Plaintiff originally filed a complaint in the Law Division, Bergen County. The case was transferred to Middlesex County Chancery Division, assigned Docket No. C-39-06, and consolidated with a Chancery action entitled First Am. Ins. Co. v. Danilo E. Azcuidiaz, et als., Docket No. C-292-04.

Defendant appeals from the order of September 22, 2006, entered under Docket No. C-39-06, denying his motion for reconsideration of the order of July 28, 2006, granting summary judgment to plaintiff and entering judgment against him in the amount of $912,476.92. By order of December 8, 2006, Judge Chambers certified the judgment as final. This appeal followed. We affirm.

I.

Defendant and his wife (the Leonardos) have purchased real estate in New Jersey and Washington, D.C., and have been involved in financing and refinancing their properties. Defendant is employed as a telecommunications engineer, and his wife was previously employed as a loan processor for a mortgage company, and a home equity coordinator, loan servicing coordinator and commercial loan processor for a bank.

The Leonardos were interested in investing in additional real estate. They met Danilo Azcuidiaz, a principal of Quantum Title Agency, Inc., who advised them he was a real estate investor and had a list of properties for purchase. The Leonardos agreed to invest their money with Azcuidiaz. In return, the Leonardos would receive fifty percent of the net proceeds from the sale of the properties. The parties also agreed that if the Leonardos allowed Azcuidiaz to use their name and good credit to obtain financing to purchase the properties, Azcuidiaz would pay them $5000 upon the closing of each purchase.

On or about November 10, 2004, Azcuidiaz asked defendant if he could use defendant's name and good credit to purchase property located at 71 West Saddle River Road, Saddle River (the property). Defendant agreed. To obtain financing for the purchase, on November 15, 2004, defendant signed a Uniform Residential Loan Application with Real Estate Mortgage Network, Inc. (REM) for $776,000. The application contains the following pre-printed language:

Each of the undersigned represents to Lender . . . and agrees and acknowledges that: (1) the information provided in this application is true and correct as of the date set forth opposite my signature and that any intentional or negligent misrepresentation of this information contained in this application may result in civil liability, including monetary damages, to any person who may suffer any loss due to reliance upon any misrepresentation that I have made on this application, and/or in criminal penalties including, but not limited to, fine or imprisonment or both under the provisions of Title 18, United States Code, Sec. 1001, et seq.; . . . (4) all statements made in this application are made for the purpose of obtaining a residential mortgage loan; (5) the property will be occupied as indicated herein; . . . (7) the Lender . . . may continuously rely on the information contained in the application, and I am obligated to amend and/or supplement the Information provided in this application If any of the material facts that I have represented herein should change prior to the closing of the Loan. . . .

Defendant also signed a Note and Mortgagee to REM for $776,000. The Mortgage contains the following pre-printed language:

1. Payment of Principal, Interest, Escrow Items, Prepayment Charges, and Late Charges. Borrower shall pay when due the principal of, and interest on, the debt evidenced by the Note and any prepayment charges and late charges due under the Note. . . . .

6. Occupancy. Borrower shall occupy, establish, and use the Property as Borrower's principal residence within 60 days after the execution of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence ...


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