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. F028037-17.

Sunil Shivaram, appellant pro se.

NOT FOR PUBLICATION WITHOUT THE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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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.