On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-155-07.
The opinion of the court was delivered by: Payne, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Payne and Miniman.
Plaintiff, Blanca Gonzalez, a non-debtor mortgagor, appeals from an order of summary judgment entered in favor of defendants Wilshire Credit Corporation and U.S. Bank National Association, as Trustee Under the Pooling and Servicing Agreement dated March 14, 1997 for Cityscape Home Equity Loan Trust 1997-B, Inc. (collectively, Wilshire), on her claim for damages pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -106.
The facts of the matter follow. Gonzalez and Monserate Diaz purchased a home in Perth Amboy on November 28, 1994. On February 26, 1997, Diaz obtained a loan of $72,000 from Cityscape Mortgage Corp., executing as "borrower" a fixed-rate balloon note in Cityscape's favor that indicated an interest rate of 11.25% and required monthly payments of $699.31 until March 3, 2012 when a final balloon payment of $61,384.17 would become due. Gonzalez did not sign the note. However, on February 26, she, along with Diaz, executed a mortgage on their joint residence as security for the debt, together with a balloon mortgage rider that acknowledged that Cityscape had no obligation to refinance its loan at the time that the balloon payment became due. The loan was assigned by Cityscape to U.S. Bank National Association, as trustee, under a pooling and servicing agreement, dated March 14, 1997, for Cityscape Home Equity Loan Trust 1997-B. U.S. Bank, in turn, appointed Wilshire as its servicing agent. The record contains the certification of John Thomas, in-house counsel and assistant vice-president of Wilshire stating that Gonzalez's creditworthiness was not evaluated in connection with the underwriting or origination of the loan, the loan's payment history was not reported to credit agencies under Gonzalez's name or social security number, and she "can not be held personally liable for payment under the Note or be sued in connection with same, either in a direct action on the Note or [in] a post-foreclosure deficiency action."
On May 4, 1999, Diaz died intestate. The loan went into default. A foreclosure action was instituted on January 15, 2003 naming Diaz and "Mrs. Diaz" as defendants. An amended foreclosure complaint was filed on March 5, 2003 naming Gonzalez as one of the defendants. Gonzalez answered the complaint through counsel, Gail Chester. After motion practice, an order was entered requiring that Wilshire provide to Gonzalez the notice of intent to foreclose required by the Fair Foreclosure Act,*fn1 see N.J.S.A. 2A:50-57, and it was sent to her on September 10, 2003. Gonzalez was unable to cure the default, and on December 19, 2003, her answer was stricken, a default was entered against her, and the matter was transferred to the Foreclosure Unit of the Superior Court to proceed as an uncontested matter. A final judgment of foreclosure was entered on April 16, 2004 fixing the amount due at $80,454.71 plus interest and costs. A writ of execution was issued on the same day, and a sheriff's sale was scheduled.
Following the entry of the judgment of foreclosure but before a sheriff's sale had taken place, as the result of negotiations between counsel, on or about May 10, 2004, Wilshire and Gonzalez entered into a "stipulation of payment arrangement," which provided:
1. Defendant(s) acknowledges that his/her/their mortgage is in default and that a foreclosure action has been instituted on behalf of the plaintiff.
2. The present monthly payment is the sum of $699.31.
NOW THEREFORE, in consideration of mutual benefits to be derived thereby, the parties ...