SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-1708-22 

BANK OF AMERICA, N.A., 

 Plaintiff-Respondent, 

v.

THOMAS MAHER, 

 Defendant-Appellant. 

 

Submitted February 27, 2024 – Decided April 12, 2024 

Before Judges Sumners and Rose. 

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. L-0054-21.

Thomas Maher, appellant pro se. 

Adam J. Beedenbender (Burke Moore Law Group, 

LLC), attorney for respondent. 

PER CURIAM 

Defendant Thomas Maher appeals pro se from a January 6, 2023 Law 

Division order, granting plaintiff Bank of America, N.A. summary judgment on 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-1708-22

its breach of contract claim pursuant to a home equity line of credit secured by 

plaintiff's residence. Because plaintiff's complaint was filed within the six-year 

statutory time frame, we affirm.1

We summarize the pertinent facts and procedural history from the motion 

record in a light most favorable to defendant as the non-moving party. See R.

4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In 

May 2006, Countrywide Bank, N.A. extended to defendant a home equity line 

of credit. The agreement was secured by a mortgage on residential property 

located in Monmouth Beach. Effective April 27, 2009, Countrywide Bank 

"merged into and under the charter title of Bank of America, National 

Association." Pursuant to the merger, plaintiff "became the owner and holder 

of the [c]ontract and the [m]ortgage." 

On May 17, 2006, defendant made an "initial draw" of $991,888. 

Thereafter, he made regular payments between June 19, 2006 and July 25, 2014, 

when he made his last payment, leaving a balance of $785,259.21. Section 12 

of the agreement permitted plaintiff the "right[] to terminate or accelerate 

[defendant's] account and take other action" if defendant "fail[ed] to meet the 

1

 Defendant also appeals from a November 4, 2022 Law Division order, denying 

plaintiff's initial summary judgment motion and defendant's second crossmotion to dismiss the complaint. 
3 A-1708-22

repayment terms of this agreement." Eight months later, on March 23, 2015, 

plaintiff exercised its right to accelerate the debt pursuant to the agreement. Two 

years later, defendant's senior mortgage lender filed a foreclosure action against 

the Monmouth Beach property, which was then sold at sheriff's sale.

 In September 2019, plaintiff sent a notice of default to defendant. In 

January 2021, plaintiff filed a single-count complaint alleging breach of 

contract. The motion judge denied defendant's ensuing self-represented motion 

to dismiss the complaint but, with consent of plaintiff, vacated default. 

Defendant thereafter answered the complaint and asserted various affirmative 

defenses, including plaintiff's complaint was barred by the six-year limitations 

period set forth in N.J.S.A. 12A:3-118(a) and 2A:14-1.

Shortly thereafter, plaintiff moved for summary judgment and to extend 

the deadline to serve responses to defendant's discovery requests. Plaintiff's 

summary judgment motion was adjourned until discovery was complete. In 

November 2022, the motion judge denied plaintiff's motion, without prejudice, 

for failure to comply with Rule 4:46-2. The same day, the judge also denied 

defendant's second cross-motion to dismiss the complaint. Pertinent to this 

appeal, the judge found plaintiff was neither time-barred from filing the 

complaint nor required to provide pre-suit notice of default or acceleration. 
4 A-1708-22

Days later, plaintiff filed its second summary judgment motion. 

Defendant thereafter filed his third cross-motion to dismiss. Following oral 

argument, the judge issued a written statement of reasons and memorializing 

order, granting plaintiff's motion and denying defendant's cross-motion. The 

judge reasoned defendant "entered into the credit agreement, received the agreed 

upon funds, and breached his obligation to repay the debt owed to plaintiff." 

The judge also concluded "[d]efendant's motion to dismiss the complaint [wa]s 

without support in the facts presented or the applicable law." 

On appeal, defendant raises two arguments. He maintains plaintiff's cause 

of action was time-barred. In addition, apparently for the first time on appeal, 

defendant contends plaintiff's initial summary judgment motion was defective 

because the statement of material facts was contained within plaintiff's brief and 

its affiant lacked personal knowledge to authenticate certain business records. 

We are unpersuaded by defendant's first argument for the reasons that 

follow. Because defendant's second argument was not raised before the motion 

judge, we could decline to address it. See Zaman v. Felton, 219 N.J. 199, 227 

(2014) (quoting State v. Robinson, 200 N.J. 1, 20 (2009) ("[D]eclin[ing] to 

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

opportunity for such a presentation is available . . . .")). Nonetheless, we have 
5 A-1708-22

considered defendant's contentions and conclude they lack sufficient merit to 

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We simply add the 

motion judge denied plaintiff's initial summary judgment motion, rendering 

moot defendant's belated challenges to the November 4, 2022 order.

We review the trial court's grant of summary judgment de novo. Conforti 

v. County of Ocean, 255 N.J. 142, 162 (2023). Employing the same standard as

the trial court, we review the record to determine whether there are material 

factual disputes and, if not, whether the undisputed facts viewed in the light

most favorable to defendant, as the non-moving party, nonetheless entitles 

plaintiff to judgment as a matter of law. See Samolyk v. Berthe, 251 N.J. 73, 

78 (2022); Brill, 142 N.J. at 540; see also R. 4:46-2(c). We owe no deference 

to the trial court's legal analysis or interpretation of a statute. Palisades at Fort 

Lee Condo. Ass'n v. 100 Old Palisade, LLC, 230 N.J. 427, 442 (2017). 

A cause of action accrues when the right arises for the enforcing party; in 

installment contracts, accrual occurs when a payment is missed. Metromedia 

Co. v. Hartz Mountain Assocs., 139 N.J. 532, 535-36 (1995) (quoting Fed. 

Deposit Ins. Corp. v. Valencia Pork Store, 212 N.J. Super. 335, 338 (Law Div. 

1986)). "[T]he statute of limitations [(SOL)] may begin to run against each 
6 A-1708-22

installment as it falls due." Ibid. (quoting Fed. Deposit Ins. Corp., 212 N.J. 

Super. at 338). 

Two statutes govern the SOL for contracts: N.J.S.A. 2A:14-1 and 12A:3-

118. The six-year limitations period set forth in N.J.S.A. 2A:14-1 applies "for 

recovery upon a contractual claim or liability, expressed or implied, not under 

seal, or upon an account other than one which concerns the trade or merchandise 

between merchant and merchant, their factors, agents, and servants." Similarly, 

under the Uniform Commercial Code, "an action to enforce the obligation of a 

party to pay a note payable at a definite time must be commenced within six 

years after the due date or dates stated in the note or, if a due date is accelerated, 

within six years after the accelerated due date." N.J.S.A. 12A:3-118(a). As 

plaintiff correctly notes, N.J.S.A. 12A:3-118(a) does not apply here because the 

parties' contract does not concern a commercial transaction in goods. See 

N.J.S.A. 12A:2-10. Instead, the six-year limitations period under N.J.S.A. 

2A:14-1(a) governs the present dispute. 

Further, "[u]ntil the debt [i]s due and payable, no cause of action . . . 

accrue[s]." Guerin v. Cassidy, 38 N.J. Super. 454, 460 (Ch. Div. 1955); 

Metromedia Co., 139 N.J. at 535 ("[A] plaintiff may sue for each breach only as 

it occurs."). When an acceleration clause is activated, a cause of action occurs 
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when payment is not made because the debt becomes immediately due and 

payable. Therefore, once the debt is accelerated, N.J.S.A. 2A:14-1(a) provides 

a six-year SOL. 

In the present matter, the acceleration clause was activated on March 23, 

2015. Because plaintiff filed its complaint on January 7, 2021, the six-year 

limitations period was satisfied. Pursuant to the parties' agreement, plaintiff was 

afforded the option to accelerate all sums payable immediately but elected to 

accelerate the debt eight months after defendant's last payment was received, 

which made the remaining balance payable immediately. The six-year SOL 

therefore ran from the acceleration date. See e.g., Bd. of Trs. of the Dist. 15 

Machinists' Pension Fund v. Kahle Eng'g Corp., 43 F.3d 852, 857 (3d Cir. 1994) 

(holding the SOL will run when each installment is due, unless the acceleration 

clause is exercised, then the SOL runs from the day the acceleration clause is 

exercised on the full debt); HSBC Bank USA, N.A. v. Gold, 171 N.Y.S.3d 1029, 

1030 (N.Y. App. Div. 2019) (holding "the [SOL] begins to run anew on the 

entire debt upon acceleration"); Blair v. EMC Mortg., LLC, 139 N.E.3d 705, 

711 (Ind. 2020) (holding the SOL will run against each installment as it becomes 

due). 
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Notably, in In re Estate of Balk, 445 N.J. Super. 395, 401 (App. Div. 

2016), we held a repudiation "entails a statement or 'voluntary affirmative act' 

indicating that the promisor 'will commit a breach' when performance becomes 

due." A missed payment is categorized as a "partial breach" and not a "total 

breach" unless accompanied by a repudiation that is anticipatory with respect to 

performances due in the future. Ibid. Thus, "a missed payment is insufficient 

to constitute a total breach of an installment contract or agreement unless 

accompanied by anticipatory repudiation indicating a failure to perform future 

obligations specified in the contract." Ibid.

In the present matter, however, defendant stopped making payments under 

the agreement on March 15, 2014. There is no indication in the record defendant 

intended to repudiate the contract outside of missing payments. Deciding 

otherwise would negate any good-faith efforts to enforce grace periods provided 

by lenders. As Corbin on Contracts explains: 

Where a contract contains an acceleration clause 

making all installments payable in case of failure to pay 

any one installment when due, the creditor is not 

required to join subsequent installments in his action 

for the first installment, if the acceleration clause is 

regarded as giving him an option. In such case, the 

statute does not begin to run against later installments 

until each falls due in regular course. In some cases[,] 

the contrary has been held because of the positive 

wording of the acceleration clause, with nothing to
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indicate an option. Such a holding may be unduly harsh 

on the plaintiff who has delayed in good-faith without 

harm to the debtor. 

[10 Corbin on Contracts § 53.9 (2024).] 

 

Affirmed.