JP MORGAN CHASE BANK NATIONAL ASSOCIATION v. SUNIL SHIVARAM

NOT FOR PUBLICATION WITHOUT THE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-4275-18T4

JPMORGAN CHASE BANK,
NATIONAL ASSOCIATION,

          Plaintiff-Respondent,

v.

SUNIL SHIVARAM,

          Defendant-Appellant,

and

PURNIMA SHIVARAM, MRS.
SHIVARAM, WIFE OF SUNIL
SHIVARAM,

     Defendants.
_____________________________

                    Submitted January 28, 2020 – Decided March 3, 2020

                    Before Judges Accurso and Gilson.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Morris County, Docket No. F-
                    028037-17.

                    Sunil Shivaram, appellant pro se.
             Bertone Piccini, LLP, attorneys for respondent
             (Cristina Z. Sinclair, of counsel and on the brief).

PER CURIAM

      In this residential-mortgage-foreclosure action, defendant Sunil Shivaram

appeals from a June 11, 2018 order that struck his answer, dismissed his

counterclaims, and directed a default to be entered against him and his wife. 1

He also appeals from a May 1, 2019 final judgment of foreclosure. Defendant

argues that he was not in default and that the bank had agreed to give him a loan

modification. Neither of those arguments are supported by the material facts in

the record and, therefore, we affirm.

                                        I.

      In November 2006, defendant and his wife signed a home equity line of

credit agreement (Note) with JPMorgan Chase Bank, N.A. (the Bank). The Note

had a credit limit of $350,000 and defendant apparently borrowed the full

amount.     Defendant and his wife also signed a Mortgage, pledging their

residential property as security for repayment of the Note. The Mortgage was

recorded.



1
   The order and judgment were also against defendant's wife, but she failed to
file a brief or participate on this appeal.
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      The Note states that defendant would pay any loan on a monthly basis.

The Note also contained a "Termination and Acceleration" provision that stated

that if defendant failed to pay on a monthly basis, he could be required "to pay

[the Bank] the entire outstanding balance in one payment."

      The Mortgage also contained an acceleration provision. Consistent with

the Note, the Mortgage stated that if the borrower did not meet the repayment

terms of the Note, the Bank had the right to "Accelerate Payment" by requiring

the borrower to "pay immediately the entire amount then remaining unpaid

under the [Note and Mortgage]."

      In late 2011, defendant contacted the Bank to request a modification of

his loan. The Bank sent a letter in December 2011, telling defendant he could

apply for a loan modification under the federal Home Affordable Modification

Program (HAMP). Defendant applied for a HAMP modification and contends

that on July 31, 2012, the Bank approved him for a three-month trial period.

Three days later, however, on August 2, 2012, defendant acknowledged that the

Bank informed him that he was not qualified for a HAMP loan modification.

      From 2013 through 2015, defendant continued to communicate with the

Bank regarding a loan modification. No loan modification was approved by the




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Bank. Indeed, defendant acknowledged that he rejected a loan modification

proposed by the Bank in December 2012.

      In May 2017, the Bank sent defendant a notice of intent to foreclose and

in December 2017, the Bank filed a complaint for foreclosure. Defendant

responded by filing an answer, with one affirmative defense, and three

counterclaims. In his affirmative defense, defendant claimed that he had until

November 2, 2036, the "Maturity Date" to pay the loan. As counterclaims,

defendant asserted (1) the Bank had never intended to give him a loan

modification and it had wasted his time and money in having him submit

applications for a modification; (2) the Bank had engaged in "deceptive business

practice[s]" and "harass[ment]"; and (3) the Bank took large loans from the

federal government, which were designed to be passed through to assist

borrowers, but the Bank did not act in good faith with its borrowers. Thus,

defendant demanded $20,000 for his time and expenses in applying for loan

modifications, $1 million in compensatory damages, and "$2.5 billion" in

punitive damages.

      The Bank moved to strike defendant's answer and affirmative defense and

dismiss his counterclaims. After considering defendant's opposition, the

Chancery court granted the Bank's motion. On June 11, 2018, the court entered


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an order striking defendant's answer, dismissing his counterclaims, and directing

that default be entered against defendants. The court explained the reasons for

its rulings in a written opinion issued with its order. Approximately one year

later, on May 1, 2019, a final judgment of foreclosure was entered.

                                       II.

      Defendant appeals and makes two arguments. He argues that the Note did

not contain an acceleration provision and his loan repayment is not due until the

maturity date, which is November 2, 2036. In addition, he contends that the

Bank agreed to provide him with a HAMP loan modification. Neither of these

arguments find any support from the material undisputed facts in the record.

      We use a de novo standard in reviewing an order dismissing pleadings

under Rule 4:6–2(e). Printing Mart–Morristown v. Sharp Electronics Corp.,  116 N.J. 739, 746 (1989). Accordingly, we examine the adequacy of the pleading,

considering "whether a cause of action is 'suggested' by the facts." Printing

Mart,  116 N.J. at 746 (quoting Velantzas v. Colgate–Palmolive Co.,  109 N.J.
 189, 192 (1988)). Moreover, no special deference is afforded the trial court's

"interpretation of the law" or "the legal consequences that flow from established

facts." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366,

378 (1995).


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      "The only material issues in a foreclosure proceeding are the validity of

the mortgage, the amount of the indebtedness, and the right of the mortgagee to

resort to the mortgaged premises." Great Falls Bank v. Pardo,  263 N.J. Super.
 388, 394 (Ch. Div. 1993), aff’d,  273 N.J. Super. 542 (App. Div. 1994). A party

seeking to foreclose must demonstrate "execution, recording, and non-payment

of the mortgage . . . ." Thorpe v. Floremoore Corp.,  20 N.J. Super. 34, 37 (App.

Div. 1952).   In addition, the foreclosing party must "own or control the

underlying debt." Deutsche Bank Nat'l Tr. Co. v. Mitchell,  422 N.J. Super. 214,

222 (App. Div. 2011) (quoting Wells Fargo Bank, N.A. v. Ford,  418 N.J. Super.
 592, 597 (App. Div. 2011)).

      The record in this case establishes that the Mortgage was valid, the Bank

had recorded the Mortgage, and defendants owed the Bank several hundred

thousand dollars in loans. There is also no dispute that the Bank owned and

possessed both the Note and Mortgage.

      Defendant argues that the Bank had no right to accelerate the loan when

he stopped making payments. The Mortgage, as well as the Note, expressly state

that the Bank had the right to accelerate the loan and demand a full payment of

the outstanding amount of indebtedness. As already summarized, both the

Mortgage and Note contained acceleration provisions, which had clear language


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explaining that the Bank could accelerate any outstanding indebtedness if

defendant defaulted by not making timely and full monthly payments. 2

Defendant does not dispute that he has not made full payments under either the

Note or Mortgage since at least July 2012. 3

      Defendant also argues that the Bank effectively agreed to modify his loan.

In that regard, he contends that the Bank agreed to a three-month trial period

and then informed him that he was not qualified for a HAMP loan modification.

There are several flaws with defendant's argument.

      First, defendant did not make this argument in his counterclaim or before

the Chancery court. In his counterclaim, defendant contended that the Bank

never intended to give him a loan modification and, therefore, he wasted his

time and money in applying for modifications. Generally, we do not consider



2
  In his appendix, defendant submitted two notes from other borrowers of the
Bank. In its brief, the Bank pointed out that those notes were not properly part
of the appendix because they were not submitted to the Chancery court.
Defendant responded by filing a motion to supplement the record. We initially
deferred ruling on that motion until this matter was considered on its merits. We
now deny the motion and strike the portion of defendant's appendix that
contained the notes signed by other borrowers.
3
   In its complaint, the Bank alleged that defendants defaulted in July 2012.
Defendant may have ceased making monthly payments before that time. The
material undisputed fact for purposes of this appeal is that defendant has been
in default since at least July 2012 and has not cured that default.
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on appeal arguments that were not raised in the trial court.            See State v.

Robinson,  200 N.J. 1, 20 (2009) ("[A]ppellate courts will decline to consider

questions or issues not properly presented to the trial court when an opportunity

for such a presentation is available unless the questions so raised on appeal go

to the jurisdiction of the trial court or concern matters of great public interest." )

(quoting Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973)).

      Second, even if we were to accept the allegations made by defendant, they

do not support a finding that the Bank committed to a loan modification. HAMP

does not confer on borrowers a private cause of action. See Miller v. Bank of

Am. Home Loan,  439 N.J. Super. 540, 543 (App. Div. 2015); Arias v. Elite

Mortg. Grp., Inc.,  439 N.J. Super. 273, 276 (App. Div. 2015). We, however,

have held that HAMP does not pre-empt valid state law claims when a bank

offers a temporary trial plan under the HAMP program and the borrower

complies with that temporary plan. See Miller,  439 N.J. Super. at 549; Arias,

 439 N.J. Super. at 279.

      Defendant submitted no evidence that the Bank committed to a trial plan

that would lead to a HAMP loan modification. Instead, defendant alleges that

the Bank informed him that he was qualified for a three-month trial period on

July 31, 2011. Defendant goes on to contend that on August 2, 2011, that is


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three days later, the Bank informed him that he was not qualified for a HAMP

loan modification. Consequently, defendant did not complete the three-month

trial period and he has provided no evidence that the Bank sent him a binding

written loan modification commitment. The applicable statute of frauds requires

a writing signed by a lender if a loan exceeds $100,000.  N.J.S.A. 25:1-5(f), (g).

Those statutory provisions apply to a loan modification. See Nat. Cmty. Bank

of N.J. v. G.L.T. Indus, Inc.,  276 N.J. Super. 1, 4 (App. Div. 1994).

Consequently, our holdings in Arias and Miller do not support any claim by

defendant.

      Third, defendant's actions establish that he did not rely on the discussions

of a loan modification in 2011. In that regard, he certified that he continued to

negotiate with the Bank on other modifications over the next several years. He

also acknowledges that in December 2012, the Bank sent him a different

modification proposal that he rejected. Consequently, defendant cannot show

that he relied on the possible HAMP loan modification.

      Affirmed.




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