August 20, 2009
JP MORGAN CHASE BANK, N.A., PLAINTIFF-RESPONDENT,
PHEOBIA FLOYD, MR. FLOYD, HUSBAND OF PHEOBIA FLOYD, DEFENDANTS-APPELLANTS.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. F-16995-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 8, 2009
Before Judges Carchman and Parrillo.
In this foreclosure action, defendant Pheobia Floyd appeals from an August 25, 2008 order striking her answer and granting summary judgment to plaintiff JP Morgan Chase Bank, N.A. The thrust of defendant's opposition to the motion was that she had not been afforded discovery, and the motion was premature. We disagree and affirm.
These are the relevant facts that emerge from the record.
On August 9, 2007, defendant acquired title to the subject property, located at 115 Ellis Avenue, Irvington. The purchase price was $378,000, and according to the documents included in defendant's appendix, the property is a three unit rental property.*fn1 On the same date, defendant executed a note and purchase money mortgage to Chase Bank U.S., N.A. to secure the sum of $318,750. To obtain the mortgage, defendant completed a financial statement as well as other documentation wherein she attested to the accuracy of the information.
Defendant defaulted in her mortgage payments, and plaintiff filed a foreclosure complaint. Defendant filed an answer setting forth a number of defenses including fraud and "[p]redatory lending." No details or facts were included.
After the filing of the answer, plaintiff moved for summary judgment setting forth a certification and documentation supporting the application. Defendant filed no certification in response but asserted that she required discovery to establish her claims. The motion judge disagreed and in granting the motion, Judge Klein stated:
We have no dispute today about the fact that the mortgage was executed and delivered. We have no dispute today about the default.
And, now, we have no dispute about the right of the plaintiff to be here and to foreclose on this mortgage.
The defendant seeks to avoid the consequence of this motion by arguing that it is premature and that it needs discovery. And among its theories are that this mortgage should never have been executed. That there was some type of misconduct, or overreaching, or predatory lending, as that term has become commonly used, on the part of the mortgagee and by extension from the originator of this particular claim.
These are really bald assertions at this point in time. And these are really, in my view, efforts to conduct discovery or to get the Court to allow discovery in the hope that some fact will be turned up that would support these claims.
There is really nothing at all in this record right now which would suggest even close to a basis for these kinds of charges. This is really a desperate effort, in my view, and it would dissolve into the classic fishing expedition.
I don't think that's what the practice should be in this type of case. And, in fact, in any other case for that matter. There has to be a showing today, and not just a statement, well, let me take a couple of months to try to glean some facts and turn something up before we grant this motion.
I'm - I'm not going to do that. As far as I am concerned, there has been a sufficient presentation today on the part of the plaintiff. And there's no counterclaim in this case. There's a mere allegation. A label. And that's not enough.
So, the - the motion is going to be granted.
We agree with the motion judge. Although defendant set forth defenses in her answer, she failed to respond in any meaningful way to the motion for summary judgment. She did not file a certification, even in the absence of discovery, that there was any substance to her asserted defenses By her failure to respond to the motion, defendant admitted the critical underlying facts supporting the motion, i.e., the validity of the mortgage, the amount of the indebtedness and the right to look to the mortgaged premises for satisfaction of the debt. Sun NLF Ltd. P'ship v. Sasso, 313 N.J. Super. 546, 551 (App. Div.), certif. denied, 156 N.J. 424 (1998); Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994).
Defendant relies on our decision in Oslacky v. Borough of River Edge, 319 N.J. Super. 79 (App. Div. 1999). We deem that case to be inapposite. In Oslacky, plaintiff was suffering from ongoing injuries that had not yet been resolved, and one of the issues on appeal was the extent of his injuries. There are no ongoing concerns here. The rights to foreclose have been established and nothing is suggested that would warrant further inquiry. The judge did not err in granting the motion for summary judgment.