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(NOTE: The status of this decision is Unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5639-09T1
FRANK N. GARRUTO,
Plaintiff-Appellant,
v.
LORRAINE CANNICI, Executrix of
the Estate of MARIE GARRUTO,
Defendant-Respondent.
June 6, 2011
Submitted March 29, 2011 - Decided
Before Judges Carchman and St. John.
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On appeal from Superior Court of New Jersey, Chancery Division, Ocean County,
Docket No. C-222-09.
Hugh M. Blair, attorney for appellant.
Clinton H. Drymon, attorney for respondent.
PER CURIAM
Plaintiff Frank N. Garruto (Frank), brother of decedent Marie Garruto (Marie),1 appeals the June 25, 2010
Chancery Division order granting summary judgment to defendant Lorraine Cannici (Cannici), Executrix of
the Estate of Marie Garruto (the estate), and the denial of plaintiff's motion for summary judgment. We
affirm.
The following facts are derived from evidence submitted by the parties in support of, and in
opposition to, plaintiff's summary judgment motion, viewed in a light most favorable to plaintiff. See Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
According to Frank, on November 28, 1979, Marie granted a purchase money mortgage to him to secure a
debt of $16,250, with interest thereon at 5.5 percent (the mortgage). Marie used the proceeds of the loan,
together with other funds, to purchase premises located at 50-7 Lake Superior Drive, Mystic Island, New
Jersey (the house). The mortgage, which was recorded on November 30, 1979, stated that it was to be
paid in full on or before November 28, 1994. The parties do not dispute that the mortgage was to be paid
over a fifteen-year term with monthly payments of $132.78, that the first payment was to be made on
December 28, 1979, and that the final payment was to be made on or before November 28, 1994. At the
option of the mortgagee, all outstanding principal and interest payments would become due thirty days
after a default in the payment of any installment of principal or interest. Frank asserts that as of the date of
the complaint, the amount due and owing on the mortgage was $78,696.63, which represents the original
principal amount, together with all accrued and unpaid interest thereon at an annual rate of 5.5 percent.
Frank failed to produce the underlying mortgage note which was secured by the mortgage.
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Frank alleges that at some time in 1982, Marie came to him and said she was having money
problems. As a result, Frank, Marie, and their brother Felix Garruto (Felix) had a family meeting. Felix
recommended that interest would continue to accrue on the mortgage, but that Marie would not have to
make any payments of principal or interest until she sold the house. It is also asserted by Frank that Felix
drew up an agreement to that effect which was signed by all three siblings. That agreement has not been
produced by Frank nor is there any proof in the record that it was recorded as a mortgage modification in
the Ocean County Clerk's office.
Marie died on October 30, 2004, and thereafter the estate entered into a contract of sale for the
house. A title search was done in connection with the sale, which revealed the recorded mortgage between
Marie as mortgagor and Frank as mortgagee. Cannici asked Frank to remove the mortgage of record, and
he refused.
This foreclosure action was not commenced in a vacuum, as the parties had been involved in prior
intra-family disputes regarding Marie's estate. We set forth the relevant background.
On November 3, 2004, Felix and Frank filed a two-count complaint in the Law Division alleging the
commission of fraud in the inducement by the executrix, Cannici, claiming that they were denied their
proper shares of Marie's estate. Cannici moved for summary judgment. The motion judge construed the
complaint to set forth a cause of action for tortious interference with an expected inheritance, perpetrated
by way of fraud. The Law Division judge determined that the brothers were unable to support their claims
factually, and that Felix's self-serving assertions contained in certifications opposing summary judgment did
not create a question of material fact sufficient to defeat Cannici's motion. Cannici's motion was granted.
The brothers appealed to the Appellate Division, and we affirmed. See Garruto v. Cannici, 397 N.J.
Super. 231 (App. Div. 2007). In that action, Frank did not claim that the estate owed him anything on the
purported mortgage note or the mortgage. Although Frank was a beneficiary of Marie's will, he did not
make any claim against the estate for the mortgage during the course of probate. This claim arose only
after Frank was requested by the estate to remove, of record, the lien of the mortgage.
In Frank's certification in response to Cannici's motion for summary judgment in this action, he
stated that he asked his attorney retained for the estate challenge for advice regarding the mortgage, which
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Frank claimed would be due at the time of Marie's death. Frank asserted that the attorney advised him that
if Frank and Felix won the estate challenge, Frank would, in essence, be paying himself back. Frank claims
that when he lost the estate challenge, he thought he then lost his right to collect on the mortgage.
On July 2, 2009, Frank's attorney sent a notice to Cannici stating that:
Pursuant  to  Section  IV of the Fair  Foreclosure  Act,  you are hereby   notified   as
follows:  The  mortgage  given  by  Frank  N.  Garruto  to  Marie  Garruto dated
November                                                                                                        28,   1979  and  recorded  in  Book   2255,  page   73  of  the Book  of
Mortgages in Ocean County is in serious default. Amount due; $16,250 times 5.5
percent  times  30 years equals  $78,693.63  (less any  payments you can   supply
proof of).2
During the course of discovery, Cannici was able to provide proof of twenty payments on the
mortgage, from December 1, 1982 through August 10, 1984, but was unable to locate additional cancelled
checks, having been informed by Marie's bank that her records were no longer in existence. Cannici
asserted that Marie paid the mortgage in full.
Cannici filed a motion to dismiss and ultimately for summary judgment stating that Frank's claim is
barred by the application of the relevant statutes of limitations, laches, and failure to timely file a claim
against the estate. Frank filed a cross-motion for summary judgment. Judge Frank A. Buczynski, Jr., the
motion judge, found that there were no genuine issues of material fact because, as a matter of law, the
claim was barred by the six-year and twenty-year statute of limitations. N.J.S.A. 2A:50-56.1(a),(c). The
judge also found that Frank failed to establish that the mortgage was modified since no proof of the
modification was provided. The judge rejected Frank's claim that the doctrine of promissory estoppel
applied.
Plaintiff raises the following points on appeal for our consideration:
POINT I
APPELLANT'S CLAIM OF THE MORTGAGE MODIFICATION CAN BE ESTABLISHED
UNDER THE DOCTRINE OF PROMISSORY ESTOPPEL.
POINT II
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ALTHOUGH NOT ADDRESSED BY THE TRIAL COURT, RESPONDENTS RELIANCE
ON N.J.S.A. 3B:22-4 TO DEFEAT APPELLANT'S CLAIM IS MISPLACED.
POINT III
A  GENUINE  ISSUE  OF  MATERIAL  FACT  EXISTED  REGARDING APPELLANT'S
CLAIM  OF  PROMISSORY  ESTOPPEL  AND  SUMMARY  JUDGMENT  WAS  AN
INAPPROPRIATE REMEDY.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the judge.
Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). We consider, as the trial judge did,
"'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso,
P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill, supra, 142 N.J. at 536). Summary judgment must be
granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine
issue of material fact, "[we] must [then] decide whether the trial court correctly interpreted the law."
Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419
(2008). Applying these standards, we are satisfied that the trial judge properly granted summary judgment.
The statute of limitations relative to residential mortgage foreclosures provides:
An action to foreclose a residential mortgage shall not   be commenced   following
the earliest of:
a.  Six  years  from  the  date  fixed  for  the  making  of  the  last  payment or  the
maturity date  set forth in the mortgage or the note, bond,  or   other    obligation
secured  by  the  mortgage,  whether  the  date  is  itself  set  forth  or  may  be
calculated from information contained in the mortgage or note, bond, or other
obligation, except that if the date fixed for the making of the last payment or the
maturity date has been extended by a written instrument, the action to foreclose
shall not be commenced after six years from the extended date under the terms
of the written instrument;
b.  Thirty-six  years  from  the  date  of  recording  of  the  mortgage,  or,  if the
mortgage is not recorded, 36 years from the date of execution, so long as the
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mortgage  itself  does  not  provide  for  a  period  of  repayment  in  excess  of  30
years; or
c. Twenty years from the date on which the debtor defaulted, which default has
not  been  cured,  as  to  any  of  the  obligations  or  covenants  contained  in the
mortgage or in the note,  bond,  or other  obligation secured by the mortgage,
except that if the date to perform any of the obligations or covenants has been
extended  by a written  instrument or payment  on account has been   made,  the
action  to  foreclose  shall  not  be  commenced  after                                                       20  years  from  the  date   on
which the default or payment  on account  thereof occurred under the   terms    of
the written instrument.
[N.J.S.A. 2A:50-56.1.]
By its terms, the maturity date of the mortgage was November 28, 1994 and, therefore, under
N.J.S.A. 2A:50-56.1(a), the within action should have been commenced by November 27, 2000. Assuming
that Marie's last payment was August 10, 1984 (that being the date of the last payment uncovered in
Marie's records), and she defaulted thereafter, under N.J.S.A. 2A:50-56.1(c), the within action should have
been commenced by September 9, 2004 (which time period includes the thirty-day cure period set forth in
the mortgage). We agree with Judge Buczynski that under the Fair Foreclosure Act's statute of limitations,
N.J.S.A. 2A:50-56.1, absent a modification of the mortgage, Frank's claims are barred.
Cannici argues that Frank has not properly proven that he had modified his interest in the New
Jersey realty, the house, sufficient to overcome the statute of frauds. N.J.S.A. 25:1-13; see Morton v. 4
Orchard Land Trust, 180 N.J. 118, 125 (2004).
The statute of frauds at the relevant time read in part as follows:
No action shall be brought upon any of the following agreements or promises,
unless  the agreement or promise upon which such action shall be brought  or
some memorandum or note thereof, shall be in writing, and signed by the party
to  be  charged therewith, or by some other  person thereunto by him  lawfully
authorized:
d. A contract for sale of real estate, or any interest in or concerning the same.
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[N.J.S.A. 25:1-5.3 ]
No writing exists evidencing Frank's mortgage modification interest in the house. A mortgage is an
interest in real estate. N.J.S.A. 25:1-10. The statute of frauds does not bar an oral modification of a
contract required to be in writing when the modification does not affect a time of the essence provision.
Tiedermann v. Corzine, 297 N.J. Super. 579, 582 (App. Div. 1997). An oral agreement to hold an interest in
real property may be enforceable if proven by clear and convincing evidence. N.J.S.A. 25:1-13b. That same
standard of proof is recited in the "Dead Man's Statute," to establish a decedent's oral promise, statement
or act. N.J.S.A. 2A:81-2. The function of each statute is to prevent "fraudulent practices which are
commonly endeavored to be upheld by perjury and subornation of perjury." Carlsen v. Carlsen, 49 N.J.
Super. 130, 134 (App. Div. 1958) (citations omitted).
"Clear and convincing" evidence falls somewhere between the civil standard of a "preponderance of
the evidence" and the criminal standard of "beyond a reasonable doubt." Aiello v. Knoll Golf Club, 64 N.J.
Super. 156, 162 (App. Div. 1960). Evidence is clear and convincing when it produces in the mind of the
trier of fact "'a firm belief or conviction as to the truth of the allegations sought to be established.'" In re
Purrazzella, 134 N.J. 228, 240 (1993) (quoting Aiello, supra, 64 N.J. Super. at 162). It must be "'so clear,
direct and weighty and convincing as to enable [the factfinder] to come to a clear conviction, without
hesitancy, of the truth of the precise facts in issue.'" In re Seaman, 133 N.J. 67, 74 (1993) (quoting Aiello,
supra, 64 N.J. Super. at 162). The clear and convincing standard does not imply absolute certainty or that
the evidence is uncontested. See In re Jobes, 108 N.J. 394, 408 (1987). Evidence may be clear and
convincing despite the fact that it has been contradicted. Ibid.
We discern that the record does not contain any credible evidence, let alone clear and convincing
evidence, demonstrating an agreement that existed between Frank and Marie that would modify the
mortgage. Specifically, Frank was unable to produce either the mortgage note or the mortgage
modification. The allegation in his complaint that no payments were made on the mortgage was belied by
the production of cancelled checks evidencing payment, and he failed to assert his mortgage interest in
both the probate proceedings and the will challenge. Frank's actions do not evince any modification, either
written or oral, of the mortgage. Finally, the purported modification would have extended the monthly
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payment dates and the final maturity date.
Despite evidence of an oral agreement between the parties being inadmissible to establish a variation
of the terms or modification of a contract, it may be admissible to support a claim of waiver or estoppel.
See Mazza v. Scoleri, 304 N.J. Super. 555, 559-60 (App. Div. 1997); Loria's Garage, Inc. v. Smith, 49 N.J.
Super. 242, 248-50 (App. Div. 1958). However, the doctrines of waiver and estoppel may not be
expansively applied in a manner that subverts the operation of a statute of frauds. See Malaker Corp. v.
First Jersey Nat'l Bank, 163 N.J. Super. 463, 484 (App. Div. 1978), certif. denied, 79 N.J. 488 (1979);
Kooba v. Jacobitti, 59 N.J. Super. 496, 500-01 (App. Div. 1960); Kufta v. Hughson, 46 N.J. Super. 222,
230-31 (Ch. Div. 1957).
A waiver is "the intentional relinquishment of a known right." W. Jersey Title & Guar. Co. v. Indus.
Trust Co., 27 N.J. 144, 152 (1958). A waiver must be voluntary, and there must be a clear act showing an
intent to waive the rights. County of Morris v. Fauver, 153 N.J. 80, 104 (1998). Mere acceptance of a lesser
amount than provided by contract, without more, does not show an intent to waive proper payment. Id. at
101.
The doctrine of promissory estoppel is well established in New Jersey. A promissory estoppel claim
will be justified if the plaintiff satisfies his burden of demonstrating the existence of, or for purposes of
summary judgment, a dispute as to a material fact with regard to, four separate elements which include:
(1) a clear and definite promise by the promissor; (2) the promise must be made
with the expectation that the promissee will rely thereon; (3) the promissee must
in fact  reasonably  rely on the promise[;] and  (4) detriment  of a definite and
substantial nature must be incurred in reliance on the promise.
[Pop's Cones, Inc. v. Resorts Int'l Hotel, Inc., 307 N.J. Super. 461, 468-69 (App.
Div. 1998) (quoting Malaker, supra, 163 N.J. Super. at 479).]
We are satisfied that Frank's certification, and the deposition testimony of Felix and Cannici are
insufficient to establish the prima facie elements of promissory estoppel. Bare conclusions in the pleadings
without factual support in affidavits will not defeat a motion for summary judgment. Brae Asset Fund, L.P.
v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999). We agree with the motion judge that, even when
viewing the proofs in a light most favorable to Frank, the promissory estoppel claims lacked sufficient
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support to present genuine material issues of fact. Brill, supra, 142 N.J. at 540.
On appeal, Frank raises the issue of the applicability of N.J.S.A. 3B:22-4 (barring claims against the
estate if not presented within nine months after the decedent's death). We note that the judge did not rely
on this statutory provision and find no merit to any argument that the statute is relevant to this foreclosure
action. R. 2:11-3(e)(1)(E).
Cannici requests that we order the cancellation of the mortgage of record by directing Frank to
execute and file a release of mortgage and lien with the Ocean County Clerk's office. N.J.S.A. 2A:51-1
provides in pertinent part:
Where a mortgage on real estate or chattels, or both, is recorded in the office of
the county clerk or register of deeds and mortgages of any county, the Superior
Court  in  a  summary  or  other  action  brought  by  any  mortgagor  or  party  in
interest may direct the county clerk or register to cancel the mortgage of record,
provided the plaintiff shall:
c. Present such special circumstances as to satisfy the court that the mortgagee
and his successors, if any, in right, title and interest have    no    further interest in
the mortgage or the debt secured thereby.
We direct the Chancery Division, in its discretion, to enter an order either compelling Frank to cancel
the mortgage of record, or directing the Ocean County Clerk to cancel the mortgage of record.
W
e affirm and remand to the Chancery Division for further proceedings consistent with this opinion.
1 For ease of reference, we will refer to the principals by their first names.
2 Both parties agree that the mortgage was given by Marie to Frank, not by Frank to Marie.
3 This section has since been repealed and replaced with N.J.S.A. 25:1-11.
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