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JP Morgan Chase Bank, N.A. v. Floyd

August 20, 2009

JP MORGAN CHASE BANK, N.A., PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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