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, 202 4 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pro se from a Januar y 6, 2023 Law Division order , granting plaintiff Bank of America, N.A. summary judg ment on NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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 t he internet, this opinion is binding only on the parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1708

- 22

its breach of contract claim pursuant to a home equ ity line of credit secured by plaintiff's residence. Because plaintiff's complaint was filed within the six-ye ar statutory time frame, we affirm. 1 We summarize the pertinent facts and procedural his tory from the motion record in a light most favorable to defendant as the non-movi ng 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 defend ant 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 "b ecame 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 1 9, 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[] t o terminate or accelerate [defendant's] account and take other action" if def endant "fail[ ed ] to meet the

1 Defendant also appeals from a November 4, 2022 La w Division order, denying plaintiff's initial summary judgment motion and def endant '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 agree ment. Two years later, defendant's senior mortgage lender filed a fo reclosure action against the Monmouth Beach property, which was then sold at sheriff's sale. In September 2019, plaintiff sent a notice of defau lt to defendant

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

contract. The motion judge denied defendant's ensuing self-re presented motion to dismiss the complaint but, with consent of plain tiff, vacated default. Defendant thereafter answered the complaint and ass erted 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 judg ment and to extend the deadline to serve responses to defendant's disc overy requests. Plaintiff's summary judgment motion was adjourned until discove ry was complete. In November 2022, the motion judge denied plaintiff's m otion, 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. Pert inent to this appeal, the judge found plaintiff was neither time- barred from filing the complaint nor required to provide pre-suit notice o f default or acceleration.4 A- 1708

- 22

Days later, plaintiff filed its second summary judg ment motion. Defendant thereafter filed his third cross-motion t o dismiss. Following oral argument, the judge issued a written statement of re asons and memorializing order, granting plaintiff ' s motion and denying defendant ' s cross
- motion. The judge reasoned defendant "entered into the credit a greement, received the agreed upon funds, and breached his obligation to repay th e 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 main tains plaintiff's cause of action was time-barred. In addition, apparently for the first time on appeal, defendant contends plaintiff's initial summary judg ment motion was defective because the statement of material facts was contain ed with in plaintiff's brief and its affiant lacked personal knowledge to authentica te certain business records. We are unpersuaded by defendant's first argument fo r the reasons that follow. Because defendant's second argument was no t 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 have5 A- 1708

- 22

considered defendant's contentions and conclude the y 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 jud gment 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 sta tute. 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 paymen t 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 each6 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:1 4-1 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, exp ressed or implied, not under seal, or upon an account other than one which conce rns the trade or merchandise between merchant and merchant, their factors, agents, an d servants." Similarly, under the Uniform Commercial Code, "an action to en force 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 not e or, if a due date is accelerated, within six years after the accelerated due date." N.J.S.A. 12A:3- 11 8(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 tra nsaction 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, 4 60 (Ch. Div. 1955) ; Metromedia Co., 139 N.J. at 535 ("[A] plaintiff may s ue for each breach only as it occurs."). When an acceleration clause is activated, a cause o f action occurs7 A- 1708

- 22

when payment is not made because the debt becomes i mmediately 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 accelerat ion clause was activated on March 23, 2015. Because plaintiff filed its complaint on January 7, 2021, t he 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 immediatel y. 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 t he SOL will run when each installment is due, unles s 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 " t he [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).8 A- 1708

- 22

Notably , in In re Estate of Balk, 445 N.J. Super. 395 , 401 (App. Div. 2016) , we held a repudiation "entails a statement or 'vo luntary affirmative act' indicating that the promisor 'will commit a breach' when performance becomes due." A missed payment is categorized as a "partia l breach" and not a "total breach" unless accompanied by a repudiation that is anticip atory with respect to performances due in the future. I bid

. Thus, "a missed payment is insufficient to constitute a total breach of an installment cont ract or agreement unless accompanied by anticipatory repudiation indicating a failure to perform future obligations specified in the contract." I bi d. In the present matter, however, defendant stopped m aking payments under the agreement on March 15, 2014. The re is no indication in the record defendant intended to repudiate the contract outside of missi ng 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 act ion for the first installment, if the acceleration clau se is regarded as giving him an option. In such case, th e statute does not begin to run against later install ments until each falls due in regular course. In some ca ses[,] the contrary has been held because of the positive wording of the acceleration clause, with nothing to9 A- 1708

- 22 indicate an option. Such a holding may be unduly h arsh on the plaintiff who has delayed in good-faith with out harm to the debtor. [10 Corbin on Contracts § 53.9 (2024).] Affirmed.