On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-222-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and St. John.
Plaintiff Frank N. Garruto (Frank), brother of decedent Marie Garruto (Marie),*fn1 appeals the June 25, 2010 Chancery Division order granting summary judgment to defendant Lorraine Cannici (Cannici), Executrix of the Estate of Marie Garruto (the estate), and the denial of plaintiff's motion for summary judgment. We affirm.
The following facts are derived from evidence submitted by the parties in support of, and in opposition to, plaintiff's summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
According to Frank, on November 28, 1979, Marie granted a purchase money mortgage to him to secure a debt of $16,250, with interest thereon at 5.5 percent (the mortgage). Marie used the proceeds of the loan, together with other funds, to purchase premises located at 50-7 Lake Superior Drive, Mystic Island, New Jersey (the house). The mortgage, which was recorded on November 30, 1979, stated that it was to be paid in full on or before November 28, 1994. The parties do not dispute that the mortgage was to be paid over a fifteen-year term with monthly payments of $132.78, that the first payment was to be made on December 28, 1979, and that the final payment was to be made on or before November 28, 1994. At the option of the mortgagee, all outstanding principal and interest payments would become due thirty days after a default in the payment of any installment of principal or interest. Frank asserts that as of the date of the complaint, the amount due and owing on the mortgage was $78,696.63, which represents the original principal amount, together with all accrued and unpaid interest thereon at an annual rate of 5.5 percent. Frank failed to produce the underlying mortgage note which was secured by the mortgage.
Frank alleges that at some time in 1982, Marie came to him and said she was having money problems. As a result, Frank, Marie, and their brother Felix Garruto (Felix) had a family meeting. Felix recommended that interest would continue to accrue on the mortgage, but that Marie would not have to make any payments of principal or interest until she sold the house. It is also asserted by Frank that Felix drew up an agreement to that effect which was signed by all three siblings. That agreement has not been produced by Frank nor is there any proof in the record that it was recorded as a mortgage modification in the Ocean County Clerk's office.
Marie died on October 30, 2004, and thereafter the estate entered into a contract of sale for the house. A title search was done in connection with the sale, which revealed the recorded mortgage between Marie as mortgagor and Frank as mortgagee. Cannici asked Frank to remove the mortgage of record, and he refused.
This foreclosure action was not commenced in a vacuum, as the parties had been involved in prior intra-family disputes regarding Marie's estate. We set forth the relevant background.
On November 3, 2004, Felix and Frank filed a two-count complaint in the Law Division alleging the commission of fraud in the inducement by the executrix, Cannici, claiming that they were denied their proper shares of Marie's estate. Cannici moved for summary judgment. The motion judge construed the complaint to set forth a cause of action for tortious interference with an expected inheritance, perpetrated by way of fraud. The Law Division judge determined that the brothers were unable to support their claims factually, and that Felix's self-serving assertions contained in certifications opposing summary judgment did not create a question of material fact sufficient to defeat Cannici's motion. Cannici's motion was granted.
The brothers appealed to the Appellate Division, and we affirmed. See Garruto v. Cannici, 397 N.J. Super. 231 (App. Div. 2007). In that action, Frank did not claim that the estate owed him anything on the purported mortgage note or the mortgage. Although Frank was a beneficiary of Marie's will, he did not make any claim against the estate for the mortgage during the course of probate. This claim arose only after Frank was requested by the estate to remove, of record, the lien of the mortgage.
In Frank's certification in response to Cannici's motion for summary judgment in this action, he stated that he asked his attorney retained for the estate challenge for advice regarding the mortgage, which Frank claimed would be due at the time of Marie's death. Frank asserted that the attorney advised him that if Frank and Felix won the estate challenge, Frank would, in essence, be paying himself back. Frank claims that when he lost the estate challenge, he thought he then lost his right to collect on the mortgage.
On July 2, 2009, Frank's attorney sent a notice to Cannici stating that:
Pursuant to Section IV of the Fair Foreclosure Act, you are hereby notified as follows: The mortgage given by Frank N. Garruto to Marie Garruto dated November 28, 1979 and recorded in Book 2255, page 73 of the Book of Mortgages in Ocean County is in serious default. Amount due; $16,250 times 5.5 percent ...