SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1354-20

ORIGEN CAPITAL 

INVESTMENTS II, LLC,

Plaintiff-Appellant,

v.

ENVIRO/CONSULTANTS 

GROUP, LTD, THOMAS J.P. 

HUGUES, COMMONWEALTH 

CAPITAL, LLC, and KEYSTONE 

BUSINESS CREDIT,

Defendants-Respondents,

and

WACHOVIA BANK NATIONAL

ASSOCIATION, and STATE OF 

NEW JERSEY,

Defendants.

______________________________

Argued February 1, 2022 – Decided February 14, 2022

Before Judges Fisher and DeAlmeida.

NOT FOR PUBLICATION WITHOUT THE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.
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A-1354-20

On appeal from the Superior Court of New Jersey, 

Chancery Division, Gloucester County, Docket No. 

F-019061-19.

Mark Pfeiffer argued the cause for appellant (Buchanan 

Ingersoll & Rooney, PC, attorneys; Mark Pfeiffer, of 

counsel and on the briefs).

Barry J. Muller argued the cause for respondent 

Thomas J.P. Hugues (Fox Rothschild, LLP, attorneys; 

Barry J. Muller, of counsel and on the brief).

Paige M. Bellino argued the cause for respondents 

Commonwealth Capital, LLC, and Keystone Business 

Credit (Chiumento McNally, LLC, attorneys; Paige M. 

Bellino, on the brief).

PER CURIAM

Plaintiff Origen Capital Investments II, LLC, appeals a summary 

judgment dismissing its complaint, which sought to foreclose on a commercial 

mortgage held on property in Clayton. Because we find the record is not 

sufficiently clear to permit summary judgment on whether the mortgage should 

have been previously discharged, we reverse and remand for further 

proceedings.

In 1998, Enemute Oduaran purchased the Clayton property in the name of 

his business, Enviro/Consultants Group, LTD. At the same time, two mortgages 

were placed on the property in favor of Mellon Bank, N.A.; one secured 

repayment of a $200,000 term note and the other secured repayment of a 
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$125,000 line of credit. After the purchase, Enviro merged into ECG Industries 

Inc.

Two years later, Oduaran agreed to sell the Clayton property to LJL 

Properties LLC. Apparently in response to inquiries relevant to that transaction, 

Mellon Bank wrote to Oduaran on April 18, 2000, stating its agreement

to release all of its security interest in [the Clayton 

property] which relate to both the term loan and line of 

credit, upon receiving full payment which fully satisfies 

Enviro['s] loan No. 101-302-0002188.[1]

This letter also provided a pay-off figure that was "good until April 18, 2000."

The sale of the property to LJL closed in July 2000. Mellon apparently 

authorized a discharge of the term-loan mortgage but not the line-of-credit 

mortgage.

On April 25, 2003, defendant Thomas J.P. Hugues purchased the property 

from LJL. A title search did not reveal the presence of the line-of-credit 

mortgage, although there is no dispute that it remains of record in the county 

clerk's office. Soon after Hugues's purchase, the line of credit matured and 

became immediately due and payable but was not paid.

1 The account number refers to the term loan, not the line of credit.
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Two years later, Citizens Bank, which had been assigned Mellon Bank's 

interest in the line of credit, wrote to Hugues to advise of the default and 

claiming the line-of-credit mortgage remained a valid lien on the property. 

Hugues disputed this and asserted, as noted above, that in April 2000 Mellon 

Bank represented it would release the line-of-credit mortgage. Citizens Bank 

took no further immediate action against Hugues; it did, however, sue Oduaran 

and Enviro in Delaware, and, in 2009, obtained a money judgment against 

Oduaran.

In 2014, Hugues refinanced the property with defendants Commonwealth 

Capital, LLC, and Keystone Business Credit. A title search apparently did not 

reveal the existence of the line-of-credit mortgage, and the transaction with 

Commonwealth and Keystone was consummated.

Plaintiff Origen purchased Citizens Bank's interest in the line-of-credit 

mortgage in December 2015 and, four years later, filed this foreclosure action.

Hugues moved for summary judgment; Commonwealth and Keystone joined in 

the motion, which was granted for reasons expressed by the trial judge in an oral 

decision on October 30, 2020. The judge found that whether Mellon Bank agreed 

to discharge the line-of-credit mortgage in 2000 was not genuinely disputed, that 
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Origen had not made a prima facie case for foreclosure, and that the doctrine of 

laches barred Origen's claim.

Origen appeals, arguing that the judge erred in concluding that Mellon 

Bank agreed to remove the line-of-credit mortgage and that the doctrine of 

laches was erroneously utilized to dismiss the action. We agree the factual 

record is simply too murky to warrant entry of summary judgment.

It is certainly true that Origen's rights rise no higher than its predecessors. 

And it is true that the record before us reveals Mellon Bank's intent in April 

2000 to release both the term mortgage and the line-of-credit mortgage so long 

as, in selling the Clayton property, Hugues's predecessor paid off the term 

mortgage. But there is no clear evidence – only inferences – to suggest that the 

term mortgage was paid off or that Mellon Bank may not have altered its position 

by the time of the July 2000 closing. There are only pieces of information about 

whether Hugues's predecessor complied with any conditions for a release of the 

line-of-credit mortgage, assuming Mellon Bank was still willing to do so by the 

time of the closing. And while there is fragmentary evidential material that 

might suggest Mellon Bank had agreed at that time to accept substitute collateral 

in place of the line-of-credit mortgage, there is nothing so clear or certain in the 

record as to permit summary judgment on the issue. Of the same value is other 
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information that might suggest Citizens Bank, which acquired Mellon Bank's 

interest in the line of credit, did not believe the mortgage had been paid off.

In short, to ascertain an accurate understanding of the transactions 

preceding the commencement of this foreclosure action from the few written 

communications offered in support of and in opposition to the motion is like 

calculating the size of an iceberg by measuring only that part visible above the 

water's surface. As the opponent of the summary judgment motion, Origen was 

entitled to an assumption of the truth of its allegations and the reasonable 

inferences to be drawn from the evidence. Brill v. Guardian Life Ins. Co. of Am., 

142 N.J. 520, 540 (1995). Instead, it seems as if, contrary to this principle, the 

movants were mistakenly given the benefit of the inferences suggested by the 

fragmentary evidence.2 Although the revelation of other information in the 

future might give rise to the entry of summary judgment on behalf of one side 

or the other, the record currently lacks the clarity necessary to support summary 

judgment. See, e.g., Higgins v. Thurber, 413 N.J. Super. 1, 24 (App. Div. 2010) 

(recognizing how "the summary judgment framework [is] too fragile" to support 

2 Contrary to what was argued here in support of the judge's ruling, it does not 

matter that the motion judge will likely be the trier of fact. The principles 

applicable to summary judgment motions are unaltered by that circumstance.
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a final disposition when evidential materials lack clarity), aff’d o.b., 205 N.J. 

227 (2011).3

Reversed and remanded for further proceedings. We do not retain 

jurisdiction.

3 We lastly add that even if the doctrine of laches has some bearing here, and 

even if the timeliness of a suit to foreclose a commercial mortgage should not 

be governed by the twenty-year time-bar described in Security National Partners 

Ltd. Partnership v. Mahler, 336 N.J. Super. 101, 106-08 (App. Div. 2000) – a 

matter we need not decide – the record does not yield any clearer answers about 

the elements of laches than it does about the merits.