JP MORGAN CHASE BANK NATIONAL ASSOCIATION v. ARAXIE BOYADJIAN

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1305-17T4

JP MORGAN CHASE BANK,
NATIONAL ASSOCIATION,

          Plaintiff-Respondent,

v.

ARAXIE BOYADJIAN, her
heirs, devisees, and personal
representatives and his/her, their,
or any of their successors in right,
title and interest, WELLS FARGO
BANK, NATIONAL ASSOCIATION,
MARV BRANDON, RAIT
PARTNERSHIP LP, STATE OF
NEW JERSEY, UNITED STATES
OF AMERICA, JACK BOYADJIAN,
his heirs, devisees, and personal
representatives and his/her, their,
or any of their successors in right,
title and interest, BANK OF AMERICA,
N.A. f/k/a SUMMIT BANK, SCHWARTZ
SIMON EDELSTEIN & CELSO LLC,
f/k/a SCHWARTZ SIMON EDELSTEIN
CELSO & KESSLER LLC, H&D
ROSETTO INC., CARLUCCIO LEONE
DIMON DOYLE & SACKS LLC, GARY
S. OLSHAN PC, MARSHALL DENNEHY
WARNER COLEMAN GOGGIN,
JACOBS LAW GROUP PC, and
WANDA CRUZ,

      Defendants,

and

HELEN BOYADJIAN, and SOSSI
AVRIGIAN, their heirs, devisees,
and personal representatives and
his/her, their or any of their
successors in right, title and interest,

     Defendants-Appellants.
_______________________________

             Submitted January 9, 2019 – Decided January 18, 2019

             Before Judges Reisner and Mawla.

             On appeal from Superior Court of New Jersey,
             Chancery Division, Bergen County, Docket No. F-
             002239-16.

             Ballon Stoll Bader & Nadler, PC, attorneys for
             appellants (Vano I. Haroutunian, on the brief).

             McCalla Raymer Leibert Pierce, LLC, attorneys for
             respondent (Brian P. Scibetta, on the brief).

PER CURIAM

      Defendants Helen Boyadjian and Sossi Avrigian appeal from an April 28,

2017 order, which denied their motion for reconsideration of a February 17,




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2017 order that granted plaintiff's motion to strike defendants' answer and

enforce a note and mortgage possessed by plaintiff. We affirm.

      The following facts are taken from the motion record. On September 30,

2004, Helen1 and her mother, Araxie Boyadjian, now deceased, executed a

mortgage and note, in the amount of $2,500,000, to Washington Mutual Bank

(WaMu) to finance the purchase of a residence in Saddle River. The mortgage

was recorded in October 2004.

      On September 25, 2008, plaintiff entered into a Purchase and Assumption

Agreement, in which it acquired all of WaMu's loan assets, including the note

in this case. Soon after plaintiff acquired the note, it was lost.

      Beginning in August 2010, Araxie defaulted on the loan. Plaintiff issued

a notice of intent to foreclose and no further payments were made on the loan.

As a result, plaintiff filed a foreclosure complaint in January 2016. Defendants'

answers to the complaint asserted affirmative defenses, including lack of

standing to foreclose, fraud, and predatory lending.

      Helen's answer asserted WaMu targeted her mother because she was "an

unsophisticated borrower for inappropriate or excessively expensive mortgage



1
   We utilize Helen and Araxie's first names to differentiate them because of
their common surname. We intend no disrespect.
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terms." Helen asserted her mother was "fraudulently induc[ed] . . . to enter into

an unconscionable mortgage transaction based upon an improper reliance on

financial documents that did not sufficiently evidence [her] income and assets

and qualification for the subject mortgage." She claimed WaMu classified

Araxie's "annual income (consisting only of Social Security benefits) . . . as

[Helen's], for the sole purpose of qualifying [Helen] and [Araxie] for a loan."

Helen's answer also asserted WaMu knew the loan could not be repaid because

she lacked the resources, the note had an adjustable rate and increased over time,

and would require "repeated financing[] [that would] exacerbate[e] the loss of

equity in the subject property[.]"

      In December 2016, plaintiff filed a motion for summary judgment. The

motion was supported by a certification of a vice president, which authenticated

an affidavit prepared by another vice president in 2013. The 2013 affidavit

certified a search had been conducted for the original note and plaintiff had

determined the note was either lost or destroyed. Attached to the 2013 affidavit

was a certified copy of the original note.

      On February 17, 2017, Judge Edward A. Jerejian granted plaintiff's

motion for summary judgment and struck defendants' answers. Addressing

defendants' predatory lending defense, the judge concluded "[s]uch a claim


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cannot be sustained with unsupported conclusory statements. The pleading is

deficient in that it does not detail the fraud alleged." As for the standing defense,

the judge stated: "Plaintiff established the terms of the instrument by attaching

a copy of the note. Plaintiff also established its right to enforce the instrument

by providing [a] copy of the assignment to [p]laintiff."

      Defendants filed a motion for reconsideration, which Judge Jerejian

denied on April 28, 2017. Defendants reiterated their standing argument, which

the judge denied for the same reasons as in the February 17, 2017 order.

Defendants also sought reconsideration of the dismissal of their predatory

lending defense on the basis of newly discovered evidence. Judge Jerejian noted

             that in "all allegations of . . . fraud . . . particulars of the
             wrong, with dates and items if necessary, shall be stated
             insofar as practicable." . . . Here, [d]efendants'
             submissions do not meet the heightened standard.
             Defendants make nothing more than conclusory
             allegations omitting any specificity regarding dates,
             names        of    [p]laintiff's      representatives,        or
             documentation.

This appeal followed.

      Our review of an order granting summary judgment is de novo. Graziano

v. Grant,  326 N.J. Super. 328, 338 (App. Div. 1999). "[W]e review the trial

court's grant of summary judgment . . . under the same standard as the trial

court." Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh,

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                                            5
 224 N.J. 189, 199 (2016) (citing Mem'l Props., LLC v. Zurch Am. Ins. Co.,  210 N.J. 512, 524 (2012)). We consider all of the evidence submitted "in the light

most favorable to the non-moving party" and determine if the moving party is

entitled to summary judgment as a matter of law. Brill v. Guardian Life Ins. Co.

of Am.,  142 N.J. 520, 540 (1995). The court may not weigh the evidence and

determine the truth of the matter. Ibid. If the evidence presented "show[s] that

there is no real material issue, then summary judgment should be granted."

Walker v. Atl. Chrysler Plymouth, Inc.,  216 N.J. Super. 255, 258 (App. Div.

1987) (citing Judson v. Peoples Bank & Tr. Co. of Westfield,  17 N.J. 67, 75

(1954)). "[C]onclusory and self-serving assertions by one of the parties are

insufficient to overcome [summary judgment]." Puder v. Buechel,  183 N.J. 428,

440-41 (2005) (citations omitted).

      "Motions for reconsideration are granted only under very narrow

circumstances[.]" Fusco v. Bd. of Educ. of Newark,  349 N.J. Super. 455, 462

(App. Div. 2002). Reconsideration should be used only for those cases where

"either (1) the [c]ourt has expressed its decision based upon a palpably incorrect

or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or

failed to appreciate the significance of probative, competent evidence." Ibid.

(quoting D'Atria v. D'Atria,  242 N.J. Super. 392, 401 (Ch. Div. 1990)). As such,


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we review a trial court's denial of reconsideration for abuse of discretion.

Cummings v. Bahr,  295 N.J. Super. 374, 389 (App. Div. 1996).

      Defendants repeat the arguments that plaintiff lacked standing to enforce

the note, engaged in fraudulent and predatory lending practices, and summary

judgment in plaintiff's favor was improperly granted. Having reviewed the

record guided by the aforementioned standards, we affirm for the reasons set

forth in the February 17 and April 28, 2017 orders signed by Judge Jerejian. We

add the following comments.

      The record demonstrates plaintiff had standing to enforce the note and

offers no material dispute of fact to convince us otherwise. Also, defendants

proffer no specific evidence of fraud or predatory lending, let alone newly

discovered evidence to support such a defense.

      Indeed, defendants refer to a certification from Helen containing several

supplementary documents, including a series of loan applications completed by

Araxie, copies of Araxie's tax returns, and information regarding Araxie's bank

accounts and credit report. However, "[t]o obtain relief from a judgment based

on newly discovered evidence, the party seeking relief must demonstrate 'that

the evidence would probably have changed the result, that it was unobtainable

by the exercise of due diligence for use at the trial, and that the evidence was


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not merely cumulative.'" DEG, LLC v. Twp. of Fairfield,  198 N.J. 242, 264

(2009) (quoting Quick Chek Food Stores v. Twp. of Springfield,  83 N.J. 438,

445 (1980)). There is no indication the documents provided by defendants in

support of the reconsideration motion were unavailable at the time the summary

judgment motions were considered.

      More importantly, we agree with Judge Jerejian's conclusion the

documents shed no further light on defendants' fraud and predatory lending

defenses, which were required to be pled with specificity. As we noted, Helen

was also a borrower, and the purported new evidence neither addressed her own

income and assets, which were considered in order to make the loan, nor what

she knew about the loan terms.      Therefore, because the terms of the note

defendants signed were facially clear, they were entitled to enforcement.

      Affirmed.




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