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Devaughn Edwards v. Countrywide Home Loans

December 28, 2012

DEVAUGHN EDWARDS, PLAINTIFF-APPELLANT,
v.
COUNTRYWIDE HOME LOANS, DEFENDANT-RESPONDENT. AND COUNTRYWIDE HOME LOANS, INC., THIRD PARTY PLAINTIFF,
v.
SAXON MORTGAGE SERVICES INC., THIRD PARTY DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1721-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 15, 2012

Before Judges Graves, Espinosa, and Guadagno.

Plaintiff DeVaughn Edwards appeals from orders entered on August 18, 2010, October 15, 2010, and April 15, 2011, granting summary judgment and dismissing his complaint against defendant Countrywide Home Loans, Inc. (Countrywide). On appeal, plaintiff claims that the motion judge erred in dismissing his claims under the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20, the federal Truth in Lending Act (TILA), 15 U.S.C.A. §1601-67f, the Home Ownership and Equity Protection Act, (HOEPA), 15 U.S.C.A. §1639, the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C.A. §§2610-17, as well as the common law. Plaintiff also claims that the mortgage assignment to Countrywide was not valid, Countrywide did not comply with discovery, and that he was entitled to relief under a Final Consent Judgment (FCJ) that Countrywide entered into with the New Jersey Attorney General. After considering plaintiff's contentions in light of the record and the applicable law, we affirm.

On June 29, 2006, plaintiff purchased certain real property in Barnegat for $459,000. In order to finance the purchase, plaintiff executed an adjustable rate note (First Note) secured by a purchase money mortgage (First Mortgage) in the amount of $367,200, in favor of Household Finance Corporation III (HFC). An addendum to the note required "interest only" payments for the first sixty months followed by monthly principal and interest payments for the next three hundred months in an amount sufficient to fully repay the unpaid principal. To finance the balance of the purchase price, plaintiff executed a second note and mortgage in the amount of $91,800 in favor of HFC.

HFC then assigned the First Note and First Mortgage to Decision One Mortgage Company LLC (Decision One). On November 1, 2006, Countrywide purchased the First Note and First Mortgage from Decision One in the secondary market.

In March 2009, plaintiff requested that Countrywide modify the terms of his loan. Countrywide initially determined that plaintiff demonstrated a positive cash flow and declined his request for modification. Instead, Countrywide offered a forbearance agreement which plaintiff declined.

On May 4, 2009, plaintiff filed a complaint in the Law Division against Countrywide, alleging fraud in inducing him to sign the mortgage, as well as failure to comply with various federal regulations. Plaintiff also claimed that Countrywide failed to comply with the FCJ.

After the conclusion of discovery, plaintiff moved for summary judgment and defendant sought dismissal of plaintiff's complaint. At the conclusion of oral argument, the motion judge reserved decision after defendant agreed to modify the loan. Countrywide proposed to cap plaintiff's arrears, convert the loan from adjustable to a fixed interest rate, and combine monthly principal and interest payments. Plaintiff declined the loan modification and advised Countrywide that he wanted to sell the home. Plaintiff then requested that Countrywide consider a short sale, as the anticipated sale proceeds would be insufficient to satisfy the first mortgage.

On June 22, 2010, Countrywide informed the motion judge that it denied plaintiff's request for a short sale as the proposed purchase price was $35,000 less than the fair market value of the home. Countrywide also noted that plaintiff had the ability to pay the deficiency between the value of the property and the loan balance, but chose not to do so.

On August 18, 2010, the motion judge entered an order dismissing several of plaintiff's claims as time-barred. On October 15, 2010, the motion judge entered a second order dismissing plaintiff's claim that defendant violated the FCJ.

Plaintiff filed a notice of appeal on November 25, 2010, and an amended notice of appeal on December 28, 2010. We granted defendant's motion for a temporary remand to permit the motion judge to enter an order granting Countrywide's summary judgment motion. On April 15, 2011, the motion judge dismissed plaintiff's remaining ...


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