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Td Bank, N.A., As Successsorin-Interest To Td Banknorth, N.A v. Clinton Center Investors

December 17, 2012

TD BANK, N.A., AS SUCCESSSORIN-INTEREST TO TD BANKNORTH, N.A., PLAINTIFF-RESPONDENT,
v.
CLINTON CENTER INVESTORS, LLC, VINCENT CASTAGNO, BRUCE M. JEFFREY, WILLIAM L. MOONEY AND ROY PASCAL, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9542-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 14, 2012

Before Judges Reisner and Yannotti.

Defendants appeal from an order entered by the Law Division on January 27, 2012, granting plaintiff's motion for summary judgment and denying defendants' cross-motion for additional discovery, to adjourn the trial date and for leave to amend their answer. We affirm.

In May 2006, plaintiff entered into an agreement under which plaintiff agreed to loan defendant Clinton Center Investors, LLC (Clinton Center), up to $6,322,000. The loan was evidenced by a promissory note, and secured by a mortgage upon Clinton Center's leasehold interest in certain property in Hunterdon County, New Jersey, which had been improved with a retail shopping center. The loan was to provide Clinton Center with monies to improve the shopping center, divide the space previously occupied by a supermarket, and rent that space to multiple tenants.

Defendants Vincent Castagno, Bruce M. Jeffrey, William L. Mooney and Roy W. Pascal executed agreements personally guaranteeing full payment and performance of Clinton Center's obligations under the loan and mortgage agreements. The maturity date of the loan was May 1, 2009.

Thereafter, defendants sought an extension of maturity date of the loan. Defendants claimed to have spent substantial time and money to obtain site plan approval to renovate the shopping center. They said they could not complete the anticipated renovations before the commercial tenancy market came to a "virtual standstill" in the fourth quarter of 2007. Defendants' say that their plans for the shopping center were also adversely affected by the economic downturn that began in 2008.

The parties entered into negotiations to extend the maturity date of the loan, and plaintiff and Clinton Center executed a restated promissory note and mortgage modification agreement, dated July 28, 2009, which extended the maturity date of the loan through May 1, 2010.

Defendants defaulted in the performance of their obligations under the agreements, by failing to pay the amounts due and owing when the loan matured. The loan documents provided, among other things, that failure to pay any indebtedness when due constitutes an event of default, which permits plaintiff to declare the full amount of the unpaid principal and interest due to be immediately payable and to foreclose upon the mortgage.

In August 2010, plaintiff wrote to defendants, stated that they were in default under the loan documents, and declared the full amount of the unpaid principal and interest immediately due and payable. When defendants failed to pay the amounts demanded, plaintiff filed this action seeking recovery of the amounts due. As of November 18, 2011, the amount due on the note was $5,914,279.24, plus interest.

Defendants filed an answer to the complaint, denying liability. They also asserted twenty-seven separate affirmative defenses, claiming that recovery was barred for various reasons, including waiver and estoppel, mutual mistake, the doctrine of unclean hands, the doctrine of impossibility of performance, and fraud. Defendants also asserted counterclaims in which they alleged, among other things, that they were entitled to a further extension of the maturity date on the loan beyond May 1, 2010, and plaintiff's failure to further extend the maturity date was a breach of the covenant of good faith and fair dealing.

After the discovery end date, the court scheduled the matter for trial on February 23, 2012. On December 23, 2011, plaintiff filed a motion for summary judgment. Defendants opposed plaintiff's motion and filed a cross-motion seeking additional time for discovery, adjournment of the trial date and leave to file an amended answer.

Judge Robert C. Wilson considered the motions on January 20, 2012, and filed a written opinion dated January 27, 2012, in which he concluded that there was no genuine issue of material fact and plaintiff was entitled to judgment as a matter of law. The judge also concluded that there was no basis for the relief sought by defendants on their cross-motion. The ...


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