                                NOT FOR PUBLICATION WITHOUT THE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.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-4757-17T4


CARRINGTON MORTGAGE
SERVICES, LLC,

          Plaintiff-Respondent,

v.

MIKE CRISMALI, a/k/a MICHAEL
CRISMALI, a/k/a MICHAEL V.
CRISMALI, INEZ CRISMALI, and
FRAN NOVARRO,

          Defendants,

and

PETER CINTULA and MARYLU
CINTULA, a/k/a MARY LU
CINTULA,

     Defendants-Appellants.
___________________________________

                    Argued May 16, 2019 – Decided July 5, 2019

                    Before Judges Simonelli, Whipple and Firko.
            On appeal from the Superior Court of New Jersey,
            Chancery Division, Mercer County, Docket No. F-
            014309-17.

            Ian V. Gallo argued the cause for appellants (Gallo
            Hildebrand, LLP, attorneys; Ian V. Gallo, on the
            briefs).

            James N. Faller argued the cause for respondent
            (Houser & Allison, APC, attorneys; Kathleen M.
            Massimo and Daniel Park, on the brief).

PER CURIAM
      Defendants Peter and Mary Lu Cintula appeal from a June 13, 2018 order

granting plaintiff Carrington Mortgage Services, LLC's motion for summary

judgment, dismissing defendants' counterclaims with prejudice and denying

defendants' motion for summary judgment. We affirm.

      In 2008, Mike and Inez Crismali executed and delivered a note of

$203,506 in favor of Residential Home Funding Corporation, its successors and

assigns and a purchase money mortgage to Mortgage Electronic Registration

Systems, Inc. (MERS), as nominee for Residential Home Funding Corporation.

Peter and Mary Lu Cintula co-signed the note in order to help their friends, the

Crismalis, secure funding to purchase their home. Paragraph nine of the note

stated, "each person [who signs this note] is fully and personally obligated to

keep all of the promises made in this [n]ote, including the promise to pay the


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                                       2
full amount owed. Any person who is a guarantor, surety or endorser of this

[n]ote is also obligated to do these things."

      The Crismalis defaulted in April 2010.      Chase Home Finance LLC,

plaintiff's predecessor, approved a loan modification, and the first payment

under the new terms was due on October 1, 2010. On August 24, 2010, Inez

Crismali and Peter Cintula signed a Loan Modification Agreement (modification

agreement) but Mary Lu Cintula did not.

      The modification agreement was to supplement and amend the mortgage

on the property and the note secured by the mortgage. Section three of the

modification agreement states:

            [t]hat all terms and provisions of the Loan Documents
            [i.e., the note and mortgage], except as expressly
            modified by this Agreement, remain in full force and
            effect; nothing in this Agreement shall be understood
            or construed to be a satisfaction or release in whole or
            in part of the obligations contained in the Loan
            Documents[.]

      The modification agreement increased the principal balance due on the

note to $207,645.28 to include past due amounts but decreased the annual

interest rate from 7.25% per year to 4.5%. However, in December 2016, the

Crismalis defaulted again. On March 28, 2017, MERS assigned the note and

mortgage to plaintiff. On June 8, 2017, plaintiff filed a foreclosure action


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                                         3
naming Mike and Inez Crismali and Peter and Mary Lu Cintula as defendants.

On July 6, 2017, the Cintulas filed an answer, counterclaim and a cross-claim.

The Cintulas' counterclaims alleged plaintiff: (1) violated the Consumer Fraud

Act (CFA); (2) breached the covenant of good faith and fair dealing; (3) violated

the Truth in Lending Act (TILA); and (4) breached the original loan agreement.

The answer alleged neither Peter nor Mary Lu Cintula were party to the

modification agreement and the modification agreement was a "unilateral

modification" of the original loan agreement made without their consent. They

argued plaintiff's predecessor breached the original loan agreement and

extinguished the Cintulas' obligation as guarantors of the full amount due under

the note. However, during discovery, Peter Cintula admitted he signed the

modification agreement, and although Mary Lu did not sign the modification

agreement, she admitted she knew Peter had signed "papers" in 2010 related to

the Crismalis' mortgage.

      On April 26, 2018, plaintiff moved and the Cintulas cross-moved for

summary judgment. 1 The Cintulas conceded Peter signed the modification

agreement but asserted Mary Lu was the injured party because she did not sign



1
  The Crismalis never filed an answer to the complaint or cross-claim and did
not appeal.
                                                                         A-4757-17T4
                                       4
the document. In particular, Mary Lu alleged she sustained an ascertainable loss

of $378,758.93, the amount due on the loan at the time of default, pursuant to

the CFA and sought treble damages of that amount.

      At oral argument on June 8, 2018, plaintiff's counsel informed the court

the Crismalis had reinstated their loan. Nevertheless, the court considered the

motions on their merits.

      The court granted plaintiff's motion for summary judgment and dismissed

the Cintulas' counterclaims finding that even though Mary Lu did not sign the

modification agreement, she knew her husband did and had constructive notice

of the terms of the modification agreement. The court also found that the

modification agreement resulted in a savings of $89,087.94 to the borrowers

over the course of the loan. Based on these two findings, the court concluded

Mary Lu's obligation as a guarantor was not extinguished. The court relied on

the Restatement (Third) of Suretyship and Guaranty § 41(b)(i) (Am. Law Inst.

1996) for the proposition that a modification of the terms of the performance

between an obligee and a primary obligor does not discharge the secondary

obligor unless a substituted contract was created or the new terms impose a risk

on the secondary obligor fundamentally different from the original agreement.

The judge found the borrowers received a benefit of $89,087.94 when they


                                                                        A-4757-17T4
                                       5
signed the modification agreement, and, as a result, the Cintulas, including Mary

Lu, remain obligated to repay the note in full.

      The court found the CFA's six-year statute of limitations and the TILA's

one-year statute of limitations barred the Cintulas' counterclaims. Mary Lu

knew of and should have investigated the loan modification when her husband

signed it on August 24, 2010, but waited until July 13, 2017 to bring a claim.

Moreover, even if her CFA claim was sustainable, Mary Lu could not prove the

modification agreement caused her an ascertainable loss because it reduced the

total cost of the loan.

      This appeal followed. Although the notice of appeal lists both Cintulas as

appellants, the Cintulas' brief argues as though only Mary Lu is seeking relief.

      "[W]e review the trial court's grant of summary judgment de novo under

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for

summary judgment should 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-




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                                        6
2(c). "We must view the evidence in the light most favorable to the non-moving

party[.]" Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012).

      Mary Lu argues the modification agreement is a contract separate and

apart from the original loan agreement, and when the modification agreement

was executed without her signature, her obligation under the March 13, 2008

note was extinguished. Based on that incorrect assumption, she argues plaintiff

violated the CFA when it accelerated the loan and caused her to incur an

improper debt, the modification agreement should be considered a "re-finance"

under the TILA and, as a result, she was required to receive certain disclosures.

She also argues the original loan agreement was improperly considered parol

evidence, the Statute of Frauds prohibits enforcement of the modification

agreement and the statute of limitations was tolled until plaintiff filed its

foreclosure action. We reject all of these arguments.

      The premise that the modification agreement is a contract separate and

apart from the original loan agreement is incorrect. The modification agreement

is not a substituted contract. The modification agreement altered the terms of

performance under the note but did not extinguish the existing obligation to

make mortgage payments.       The purpose of a contract modification is to

simultaneously alter the terms of a prospective performance owed yet maintain


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                                       7
an existing contractual relationship. 13 Corbin on Contracts § 71.1(1) (Jenkins

ed. 2003). After parties agree to a modification, the obligor still must perform

the promise as originally agreed, just under the terms of the post-modification

contract. See Int'l Bus. Lists, Inc. v. Am. Tel. & Tel. Co., 147 F.3d 636, 641

(7th Cir. 1998) ("A modification of a contract is a change in one or more respects

which introduces new elements into the details of the contract and cancels others

but leaves the general purpose and effect undisturbed.").

      Section 3(D) of the modification agreement evidences the parties' intent

where it states "[t]hat all terms and provisions of the Loan Documents . . . remain

in full force and effect; nothing in this Agreement shall be understood or

construed to be a satisfaction or related in whole or in part of the obligations

contained in the Loan Documents[.]" On its face, the modification agreement

never extinguished the borrowers' obligation under the original loan agreement.

See generally Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) ("[I]t is a basic rule

of contractual interpretation that a court must discern and implement the

common intention of the parties.").

      When they signed the original loan agreement, the Crismalis and Cintulas

obligated themselves to repay the principal balance and accrued interest over

thirty years. The modification agreement did not alter that central duty, because


                                                                           A-4757-17T4
                                        8
the borrowers were still required to repay the amount due under the note. The

modification agreement only altered the interest rate applied to the principal

balance, which resulted in lower monthly payments and reduced the total cost

of the loan. Neither party furnished new consideration nor did the bank agree

to make a new loan. Moreover, the borrowers were still required to repay the

same principal balance.

      The modification agreement was also not a refinance. In a refinance, a

new loan pays off the old loan thereby extinguishing the original obligation.

See, e.g., 12 C.F.R. § 226.20(a) ("A refinancing occurs when an existing

obligation . . . is satisfied and replaced by a new obligation undertaken by the

same consumer."). The result is a new contract and satisfaction of the original

loan. Here, the modification agreement altered the interest rate assessed on the

existing principal balance but did not extinguish the prior obligation.

      The Cintulas, as co-signers to the original loan agreement, are co-sureties.

By co-signing the original loan agreement, the Cintulas "promise[d] to pay the

full amount owed [under the note]."         Sureties have several defenses to

enforcement of the underlying obligation, one of which is discharge from any

unperformed duties. See Restatement (Third) of Suretyship and Guaranty § 41.




                                                                          A-4757-17T4
                                        9
             If the principal obligor and the obligee agree to a
             modification . . . of the principal obligor's duties
             pursuant to the underlying obligation:

                   ....

             (b) the secondary obligor is discharged from any
             unperformed duties pursuant to the secondary
             obligation:

             (i) if the modification creates a substituted contract or
             imposes risks on the secondary obligor fundamentally
             different from those imposed pursuant to the
             transaction prior to modification;

             (ii) in other cases, to the extent that the modification
             would otherwise cause the secondary obligor a loss[.]

             [Ibid.]

See also Ctr. 48 Ltd. P'ship v. May Dep't. Stores Co., 355 N.J. Super. 390, 394

(App. Div. 2002) ("[I]n order to effect a discharge of the guarantor, an alteration

or modification of the underlying lease must either injure the guarantor or

actually increase the guarantor's risk or liability.").

      The modification agreement did not impose any risk fundamentally

different from what Mary Lu had previously undertaken and actually conferred

a benefit to Mary Lu because it reduced the total cost of the loan. If and when

the loan is accelerated, Mary Lu's obligation is less than it would have been

under the original loan agreement. We reject the argument that Mary Lu's


                                                                           A-4757-17T4
                                         10
obligation was discharged because she did not sign the modification agreement.

Although she was not a party to the modification, her duty to perform the

underlying obligation is not extinguished, particularly because the modification

confers a benefit. Moreover, the modification agreement specifically did not

extinguish the original obligation as to any obligors. See Ctr. 48 Ltd. P'ship,

355 N.J. Super. at 408 (guarantor not discharged from an obligation absent

explicit language in the modification to that effect and because the modification

did not cause the guarantor injury or prejudice).

      We also reject Mary Lu's argument that the modification agreement does

not comply with the Statute of Frauds, and thus is unenforceable against her,

because she did not sign the document. N.J.S.A. 25:1-5(f) provides "[a] contract

. . . to loan money or . . . to extend . . . credit" is invalid unless evidenced in a

written memorandum and signed by the party to be charged. This argument asks

us to ignore the fact that Mary Lu signed the original loan agreement that

extended credit to the Crismalis. The modification agreement did not increase

the amount of the existing loan nor did it constitute a refinance.

      Mary Lu argues the original loan agreement was an inadmissible parol

document and should not determine the effect of the modification agreement.

The parol evidence rule is not relevant here. Rather, the parol evidence rule


                                                                             A-4757-17T4
                                        11
applies when a prior oral or written agreement contains terms in contrast to or

missing from a subsequent integrated agreement.       Restatement (Second) of

Contracts § 213 (Am. Law Inst. 1981). Here, the parties to the modification

agreement agreed to modify, but not extinguish or replace, the terms o f the

original loan agreement.

      We agree with the trial court that the CFA and TILA claims were barred

by the six-year and one-year statutes of limitations, respectively. See 15 U.S.C.

§ 1640(e) (claims under the TILA must be brought "within one year from the

date of the occurrence of the violation"); Catena v. Raytheon Co., 447 N.J.

Super. 43, 52 (App. Div. 2016) (applying the six-year statute of limitations to

CFA claims per N.J.S.A. 2A:14-1). Mary Lu's remaining arguments are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      12
