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Dignazio v. Wachovia Bank, N.A.

Superior Court of New Jersey, Appellate Division

July 5, 2013

JACKLYN DIGNAZIO, Plaintiff-Appellant,
v.
WACHOVIA BANK, N.A. AS HUNTERDON TRUSTEE POOLING AND SERVICING AGREEMENT DATED AS OF NOVEMBER 1, 2004 ASSET BACKED PASS THROUGH CERTIFICATES SERIES 2004 WWF, [1] Defendant-Respondent, and PHIL DECARLO, Defendant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued Telephonically November 5, 2012 [1]

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-221-10.

Peter A. Ouda argued the cause for appellant.

Henry F. Reichner argued the cause for defendant/respondent Wells Fargo Bank, N.A. (Reed Smith, L.L.P., attorneys; Mr. Reichner, of counsel; Alex G. Gross, on the brief).

Before Judges Nugent and Haas.

PER CURIAM

Plaintiff Jacklyn Dignazio appeals from the summary judgment dismissal of her complaint against defendant, "Wachovia Bank, N.A., as Hunterdon Trustee Pooling and Servicing Agreement dated as of November 1, 2004 Asset Backed Pass Through Certificates Series 2004 WWF" (Wachovia). She also appeals from the order denying her motion for reconsideration.[2] We affirm.

Plaintiff's complaint stems from a mortgage foreclosure action. In September 2004, plaintiff mortgaged her Union Township home to secure a $670, 000 loan from Argent Mortgage Company, L.L.C. The mortgage was eventually assigned to Wachovia. In 2005, plaintiff defaulted on the loan and defendant filed a foreclosure complaint.[3] Plaintiff did not file an answer and default was entered against her on January 30, 2006.

During the time the mortgage foreclosure complaint was pending, the parties entered into forbearance agreements three times. Each time, plaintiff made substantial payments but eventually defaulted. Wachovia foreclosed on the property and evicted plaintiff.

Plaintiff alleges in the subject complaint that Wachovia's representatives made false statements to induce her to make substantial payments under the forbearance agreements, even though they intended to foreclose on the mortgage. Specifically, plaintiff alleges that Wachovia's agents "falsely stated that the foreclosure would be stopped if payments were made, payments were made but the foreclosure proceeded nonetheless."

Eight months after being evicted, plaintiff filed a motion seeking an order vacating the final foreclosure judgment and permitting her to file an answer and counterclaim. Her motion was denied on April 28, 2008. She filed a motion for reconsideration, which was denied in May 2008. Plaintiff did not appeal from those orders. More than two years later, on July 16, 2010, plaintiff filed the subject lawsuit, alleging in her four-count complaint causes of action for consumer fraud, common law fraud, negligence, and breach of contract. On September 7, 2007, Wachovia moved for summary judgment. Following oral argument on November 28, 2011, Judge Peter A. Buchsbaum issued a written decision granting Wachovia's motion and dismissing plaintiff's complaint with prejudice. On January 6, 2012, Judge Buchsbaum denied plaintiff's motion for reconsideration in a written decision.

Defendant argues in this appeal that Wachovia's summary judgment should have been denied because plaintiff established the existence of genuine issues of material fact that required a jury to resolve; that contrary to the trial court's decision, res judicata, collateral estoppel and the entire controversy doctrine do not bar the causes of action she has pled in the subject complaint; and that her fraud, negligence, and breach of contract actions have merit and should been presented to a jury.

We review summary judgment de novo and apply the same standard as the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In doing so, we view the evidence in the light most favorable to the non-moving party, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. ...


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