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Frank Calderone, et al v. Alliance Mortgage Company

April 29, 2011


The opinion of the court was delivered by: Cooper, District Judge



The plaintiffs, Frank Calderone and Antoinette Calderone ("Calderones"), brought this action in New Jersey state court ("State Court Action") against the defendants, Alliance Mortgage Company ("Alliance"), EverHome Mortgage Company ("EverHome"), and Chase Manhattan Mortgage Corp. ("Chase") (collectively, "Defendants"), alleging that Defendants overcharged and refused to refund them monies paid in connection with their mortgage, and that they violated "Federal and New Jersey State Banking Regulations." (Dkt. entry no. 2, Rmv. Not., Ex. A, Compl. at 2-3.) Defendants removed to this Court, on the basis of 28 U.S.C. § 1331, because the Calderones asserted claims arising under the laws of the United States, namely "Federal Banking Regulations." (Rmv. Not. at 2.) The parties stipulated the dismissal, without prejudice, of Alliance and Chase. (Dkt. entry no. 16, Stipulation of Dismissal.) EverHome now moves for summary judgment. (Dkt. entry no. 18, Mot. for Summ. J.)

The Calderones have not opposed EverHome's motion for summary judgment, and the time for the Calderones to oppose the motion expired long ago. (See ECF note after dkt. entry no. 18; ECF note after dkt. entry no. 20.) The Court determines the motion without an oral hearing, pursuant to Federal Rule of Civil Procedure ("Rule") 78(b). For the reasons stated herein, the Court will grant the motion.


On February 5, 1986, Frank Calderone and another individual signed a mortgage ("Mortgage") serviced by Chase, and executed an adjustable rate note ("Note"). (Dkt. entry no. 18, Def. Stmt. of Undisputed Facts ("Facts") at ¶¶ 1, 2, 7; dkt. entry no. 18, Aff. of Kim McManus ("McManus Aff."), Ex. 1, Mortgage; dkt. entry no. 18, Aff. of Marianne Johnston ("Johnston Aff."), Ex. C, Calderone Dep. at Ex. 1, Note.) The Note sets forth the terms for adjusting the interest rate and monthly payment changes therein. (Note at ¶ 4.) The Note also sets forth the terms governing late charges for overdue payments under the Note. (Note at ¶ 7.) The Mortgage sets forth the terms governing the escrow of monies for payment of taxes and insurance on the Calderones' mortgaged property. (Facts at ¶ 6.)

In February 2001, Alliance took over loan servicing from Chase. (Facts at ¶ 7.) In August 2001, Frank Calderone contacted Alliance in response to notification that his escrow balance was short. (Facts at ¶ 8.) He subsequently filed administrative complaints against Alliance in both New Jersey and Florida. (Facts at ¶¶ 10-11.) In 2004, Frank Calderone also sent a letter to his Congressman, who forwarded the request for assistance to the United States Department of Housing and Urban Development ("HUD"). (Facts at ¶¶ 12-13.) No entity made any finding of wrongdoing on the part of the Defendants. (Calderone Dep. at 25-26.) In February 2004, Alliance changed its name to EverHome. (Facts at 3 n.1.)

The Calderones embarked on further attempts to clarify the status of their escrow account between 2002 and 2005. (See Calderone Dep. at Ex. 5; id. at 28-29.) Alliance and EverHome sent the Calderones detailed letters in 2003 and 2005, laying out their transaction record and payment history. (Calderone Dep. at Ex. 6, Ex. 8.) Another document was later provided to the Calderones, detailing the loan history of the Mortgage from 2001 to 2006. (Facts at ¶ 21; Calderone Dep. at Ex. 9.) But Frank Calderone claims that the spreadsheet he and his accountant assembled conflicts with this information, and that his accountant did not understand where Defendants' numbers came from. (Calderone Dep. at 42-43, 109.)*fn1 For at least some of the charges, however, Frank Calderone admitted it was "fair" to say that he did not claim they were incorrect, just that he did not understand why they appeared. (Id. at 105-06.)

The Calderones seek an accounting and refund of $29,822.42 as well as punitive damages. (Compl. at 2-3.)


I. Summary Judgment Standard

The standard for a motion for summary judgment is well-settled and will be briefly summarized here. Summary judgment is proper if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). In making this determination, the Court must "view[] the record in the light most favorable to the non-moving party and draw[] all inferences in that party's favor." United States ex rel. Josenske v. Carlisle HMA, Inc., 554 F.3d 88, 94 (3d Cir. 2009) (citing Abramson v. William Patterson Coll., 260 F.3d 265, 276 (3d Cir. 2001)).

A movant is not automatically entitled to summary judgment simply because the non-movant does not oppose the motion. Anchorage Assocs. v. V.I. Bd. of Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990). Instead, the Court may grant the unopposed motion "if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(2)-(3); see also Anchorage Assocs., 922 F.2d at 175; Bryant v. Nolan, No. 09--2672, 2011 WL 1343017, at *2 (D.N.J. Apr. 7, 2011) ("The nonmoving party's failure to respond to the motion does not mean summary judgment is warranted . . . The Court must still determine . . . whether the motion and supporting materials show that the movant is entitled to it.") An unopposed motion is appropriately granted when the movant is entitled to judgment as a matter of law. Anchorage Assocs., 922 F.2d at 175.

"If the nonmoving party fails to oppose the motion [for summary judgment] by written objection, memorandum, affidavits and other evidence, the Court will accept as true all material facts set forth by the moving party with appropriate record support." Kadetsky v. Egg Harbor Twp. Bd. of Educ., 164 F.Supp.2d 425, 431 (D.N.J. 2001) (quotations and citations omitted); see also Bryant, 2011 WL 1343017, at *2 ("Failure to oppose the motion does mean, however, that the Court may consider facts asserted by the moving party 'undisputed for the purposes of the motion.'"). Further, even if a record contains facts that might provide support for a non-movant's position, "the burden is on the [non-movant], not the court, to cull the record and affirmatively identify genuine, material factual issues ...

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