On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. F-53147-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2011 -
Before Judges Lihotz and St. John.
In this mortgage foreclosure matter, defendant Bernard Woodhouse appeals from an order filed on October 20, 2010, granting summary judgment to plaintiff HSBC Bank USA, National Association (HSBC), as trustee for Home Equity Loan Trust Series ACE 2006-HE1. Woodhouse argues the judge erred by not finding that HSBC breached the implied covenant of good faith and fair dealing. We disagree and affirm.
On appeal, the record discloses the following facts and procedural history.
On November 29, 2005, Woodhouse executed and delivered to FGC Commercial Mortgage Finance (Freemont Mortgage) and its successors and/or assigns, a note in the principal amount of $348,720 payable on December 1, 2035, with an initial interest rate of 8.55% per annum. The note was an adjustable rate note, providing for changes, either higher or lower, in the interest rate as set forth therein. To secure payment of this obligation, Woodhouse executed and delivered a purchase money mortgage on real property, located on Martin Terrace in Hackensack, to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for Freemont Mortgage and its successors and/or assigns. The mortgage was recorded in the office of the Clerk of Bergen County on December 13, 2005. MERS assigned the mortgage to HSBC on August 28, 2006. The assignment was recorded on December 15, 2006.
Woodhouse defaulted on the note and mortgage in April 2006, and a complaint in foreclosure was filed against him on August 14, 2006, with a final judgment entered on August 29, 2008. Prior to the May 29, 2009 sheriff's sale, HSBC, through Wells Fargo Bank, N.A. d/b/a America's Servicing Company (ASC) and Woodhouse, negotiated a loan modification agreement. As a result of the modification, HSBC dismissed its foreclosure action on May 13, 2009.
ASC sent a commitment letter to Woodhouse dated April 8, 2009, which stated in pertinent part:
The terms of your modification/restructure are outlined below:
1. Due date of first payment: 06/01/2009;
2. New principal and interest payment amount: $2214.49;
3. *Required escrow payment based on previous ...