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Washington Mutual Bank F/K/A v. Vincent Roggio

August 23, 2012

WASHINGTON MUTUAL BANK F/K/A WASHINGTON MUTUAL BANK, FA, PLAINTIFF-RESPONDENT,
v.
VINCENT ROGGIO, DEFENDANT-APPELLANT, AND MRS. ROGGIO; EQUITY BANK, NA; PNC BANK; NATIONAL ASSOCIATION; NIFTY NET ENTERPRISES; SUN NATIONAL BANK; AND STATE OF NEW JERSEY, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-10401-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 21, 2011

Before Judges Fuentes, Graves and J. N. Harris.

This foreclosure action concerns a $3,000,000 loan extended to defendant Vincent Roggio on December 16, 2005, by Washington Mutual Bank, N.A. (Washington Mutual), a now defunct financial institution. Defendant argued before the trial court that JPMorgan Chase, N.A. (Chase) did not properly acquire this loan from the Federal Insurance Deposit Corporation (FDIC), and therefore did not have standing to prosecute this action against him. Defendant now appeals from the order entered by the trial court on January 18, 2011, denying his motion to dismiss this action for lack of standing. We affirm.

I

On December 16, 2005, defendant executed a promissory note in favor of Washington Mutual to document the terms of repayment of a $3,000,000 loan defendant received from the bank. To secure the loan, defendant executed a companion mortgage on real property he owned in Red Bank. Defendant defaulted on the loan almost immediately, however, causing Washington Mutual to file a foreclosure complaint against him on June 14, 2006. According to defendant, he withheld payments due on the loan pursuant to an agreement reached with Washington Mutual because the bank had damaged his credit rating by filing an excessive number of credit inquiries.

Defendant filed a pro se answer to the foreclosure action on September 25, 2006, causing the case to be listed as a contested matter in the Monmouth County vicinage. The parties thereafter reached an agreement and the case was marked settled. The terms of the settlement were placed on the record before the Chancery Division, General Equity Part in Monmouth County on January 25, 2007.

PLAINTIFF'S COUNSEL: [T]he settlement provides that Washington Mutual will take steps to correct any incorrect reporting on Mr. Roggio's credit, and also take all steps possible to remove multiple inquiries off the report, as multiple inquiries brings the credit score down.

In exchange, Mr. Roggio has agreed that his contesting answer, separate defenses are withdrawn. And the file can be moved off Your Honor's docket back to the Foreclosure Unit in Trenton to proceed as uncontested. But it will be stayed in Trenton for a period of 90 days from when plaintiff sends out the credit reporting correction.

THE COURT: How is Trenton going to figure that one out?

PLAINTIFF'S COUNSEL: I just won't proceed with the foreclosure . . . .

PLAINTIFF'S COUNSEL: So there won't be any problems then. If the loan is not reinstated or paid off or the default otherwise cured within 90 days, then plaintiff may proceed with the foreclosure as uncontested.

THE COURT: What I take the real issue here is [] that once the credit score is brought up to speed, that Mr. Roggio feels that he can refinance and take you out, and that's what the plan is, right?

MR. ROGGIO: Judge, my concern, the caveat, with this is that in fact the inquiry side and what, even with Washington Mutual's best intentions, the credit bureaus are not respondents [sic]. That's why as I said to this gentleman, that it has to be from the time they actually clear it up. In other words, I need 60 days from that day so the bank -- the bank will not take a letter. The bank's already said, we'll do it.

PLAINTIFF'S COUNSEL: There was one more term I didn't get to, Your Honor, and that's Mr. Roggio has agreed, he'll run a credit report in 45 days and provide a copy to me so that we can see if -- we have no control once we send it to the credit agencies what they do with it. So he's going to run a report, send it to me.

THE COURT: Sure. Well, you do have some control because if the credit report after 45 days doesn't reflect what you've said to them, then you can get on them and do that. PLAINTIFF'S COUNSEL: Well, and that was my point for asking --THE COURT: That's the whole point.

PLAINTIFF'S COUNSEL: -- for the report in the 45 days, is that then we can follow-up.

But absent that, we have no control of what they do.

On February 20, 2007, plaintiff's counsel forwarded to the court a proposed order outlining the terms of the settlement agreement. Plaintiff's counsel followed up on this effort in a letter sent to defendant two days later in which he confirmed "that a credit correction has been sent to the credit agencies to correct the reporting of your 02/06 through 01/07 monthly home loan payment(s)."

Defendant wrote to the court on March 2, 2007, objecting to the proposed settlement order. Defendant informed the court that he expected "a commitment" from Washington Mutual "to the successful removal of their [sic] negative reporting." Defendant concluded the letter by emphasizing that "as to the proposed timing, it has always been my position that it requires sixty days from the removal of the negative reporting in order to refinance the properties.*fn1 This is based on acquiring new appraisals and completing the loan process."

In a letter to the court dated March 29, 2007, plaintiff's counsel asserted that defendant's position was not consistent with the terms of the settlement placed on the record on January 25, 2007. Counsel argued that under the settlement agreement Washington Mutual was only obligated to "take all reasonable steps to correct [defendant's] credit reporting." Counsel concluded the letter by emphasizing that because the bank "cannot control what those agencies ultimately do with the information," no other "specific guarantees could be made"

Defendant's position remained unchanged. According to his certification, on April 22, 2007, he hand-delivered to the court a purported copy of his credit report showing that Washington Mutual had not corrected the alleged credit errors. The trial court eventually rejected defendant's position and entered an order adopting plaintiff's position. Defendant's subsequent ...


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