On appeal from the Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. F-6782-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 29, 2009
Before Judges Cuff and C.L. Miniman.
Plaintiff Bayview Loan Servicing, LLC, appeals from the February 4, 2008, judgment determining that the "lockout fee" in Paragraph 7(a) of the Adjustable Rate Promissory Note*fn1 executed by defendant David Robinson was an unenforceable penalty and that the amount due plaintiff was $391,827, including attorney's fees. Defendant cross-appealed from the portions of the judgment that determined plaintiff's entitlement to default interest,*fn2 prepayment consideration,*fn3 and late charges;*fn4 that established the amount due under the promissory note; and that set the payoff amount due as of February 29, 2008. We dismiss the appeal as moot, because plaintiff accepted payment and discharged its mortgage, and we affirm on the cross-appeal.
Plaintiff instituted a foreclosure action against defendant's property on March 12, 2007. Defendant filed an answer and counterclaim asserting that plaintiff had not sent a notice of intent to foreclose under the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -68, at least thirty days in advance of filing the complaint as required by the Act, N.J.S.A. 2A:50-56(a). Defendant also asserted that plaintiff created the delinquency by failing to accept payment in the amount specified in plaintiff's notice of default.
While the foreclosure was pending, defendant located a buyer for the property in April 2007 and the parties negotiated a settlement of the contested foreclosure action. Plaintiff verbally agreed to hold the foreclosure in abeyance until October 31, 2007, to allow time for the closing and defendant agreed not to contest the foreclosure if the closing did not occur by that date. The Chancery judge was advised of the settlement on July 12, 2007, and he entered an order on that date deeming the defendant's answer uncontested and barring a sheriff's sale prior to October 31.
Plaintiff issued a payoff statement on October 4, 2007. The loan in the original amount of $297,500 was dated August 29, 2006. The payoff statement indicated that the following sums were due effective November 1, 2007:
$297,269.59 Unpaid principal
1,919.18 Document prep., unpaid late charges, fax, &c.
14,863.48 Prepayment consideration