                                NOT FOR PUBLICATION WITHOUT THE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-5170-16T1

PANTELIS DEMIRIS and
MARA DEMIRIS,

          Plaintiffs-Appellants,

v.

BRANCH BANKING & TRUST
COMPANY,

     Defendant-Respondent.
______________________________

                    Submitted December 20, 2018 – Decided March 18, 2019

                    Before Judges Simonelli and DeAlmeida.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Bergen County, Docket No. C-
                    000353-15.

                    Friedrich & Friedrich, PA, attorneys for appellants (Jay
                    Joseph Friedrich, on the brief).

                    Phelan Hallinan Diamond & Jones, PC, attorneys for
                    respondent (Sonya Gidumal Chazin, on the brief).

PER CURIAM
      Plaintiffs Pantelis Demiris and Mara Demiris appeal from the June 12,

2017 order of the Chancery Division granting summary judgment in favor of

defendant Branch Banking & Trust Company (Branch). We affirm.

                                       I.

      The following facts are derived from the record. On September 25, 2008,

plaintiffs executed a promissory note to Real Estate Mortgage Network, Inc.

(Real Estate Mortgage) in the amount of $431,375. To secure the note, plaintiffs

executed a mortgage to Mortgage Electronic Registration Systems, Inc., as

nominee for Real Estate Mortgage, encumbering residential property in

Northvale. The mortgage was assigned to Branch on May 27, 2010.

      Plaintiffs and Branch executed a loan modification agreement in 2011.

Plaintiffs defaulted on the modified mortgage on December 1, 2012.           On

December 23, 2014, Branch sent plaintiffs a notice of intent to foreclose in

accordance with the Fair Foreclosure Act, N.J.S.A. 2A:50-53 to -73. Plaintiffs

did not cure the default. As a result, on August 27, 2015, Branch filed a

foreclosure complaint in the Chancery Division. Plaintiffs filed an answer with

counterclaims on October 28, 2015.

      On September 4, 2015, plaintiffs filed a complaint against Branch in the

Law Division, alleging breach of contract, breach of the implied covenant of


                                                                        A-5170-16T1
                                       2
good faith and fair dealing, negligence, promissory estoppel, and violations of

the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20. Plaintiffs alleged that the

parties entered into a second loan modification agreement in 2014, pursuant to

which plaintiffs made monthly payments until Branch breached the agreement

by rejecting their January 2015 payment.       Branch filed an answer denying

plaintiffs' claims. Plaintiffs' Law Division action was consolidated with the

foreclosure matter in the Chancery Division.

      On November 28, 2016, plaintiffs moved for summary judgment with

respect to the claims raised in their complaint. They sought to enforce the

alleged 2014 loan modification agreement. Branch opposed the motion and

cross-moved to dismiss the complaint. Branch argued that in January 2014, the

parties entered into a trial loan modification agreement, which expired after

plaintiffs made three required payments. On May 6, 2014, Branch sent plaintiffs

a permanent loan modification agreement requiring the notarized signatures of

plaintiffs and two witnesses. Plaintiffs never signed the document. According

to Branch, after expiration of the 2014 trial loan modification, plaintiffs

continued to make payments, which Branch credited to the outstanding debt on

plaintiffs' mortgage.




                                                                       A-5170-16T1
                                      3
      At oral argument on the motions, plaintiffs' counsel argued that a

representative of Branch agreed orally to modify the terms of the proposed 2014

permanent loan modification agreement by forfeiting Branch's claim to more

than $148,000 of plaintiffs' existing debt, and that Branch acquiesced to the

modified contract by continuing to accept plaintiffs' monthly payments , despite

having no signed agreement.

      On June 12, 2017, the trial court issued a detailed written opinion denying

plaintiffs' motion and granting Branch's cross-motion. The court concluded

plaintiffs failed to establish that the parties entered into a permanent loan

modification in 2014. While finding that the parties entered into a trial loan

modification agreement, the court also found that plaintiffs, "through counsel,

refused to sign the tendered permanent loan modification agreement." Thus, the

court concluded

            [t]here was no contract for [Branch] to breach, there
            were no actions that would substantiate a negligence
            claim, and there is no credible competent evidence to
            support an unspecific claim that [Branch] has violated
            the New Jersey Consumer Fraud Act.

                  ....

            There is no breach of the duty of good faith and fair
            dealing by [Branch] because the agreement [Branch] is
            said to have reneged upon is illusory. There is no
            meeting of the minds that can be established on the

                                                                         A-5170-16T1
                                       4
             strength of what counsel was told by unnamed
             representative(s) of [Branch]. Each payment made by
             [plaintiffs, and] accepted by [Branch], was in fact duly
             applied to their outstanding obligations to [Branch], as
             demonstrated by the court-ordered accounting.

      This appeal followed. Plaintiffs reiterate their arguments with respect to

the parties having entered into an oral loan modification agreement in 2014.

Plaintiffs also argue that the trial court's factual findings are not supported by

adequate evidence, and contend that Branch failed to counter crucial elements

of plaintiffs' statement of material facts not in dispute. 1

                                         II.

      We review the trial court's decision granting summary judgment de novo,

using "the same standard that governs trial courts in reviewing summary

judgment orders." Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super.

162, 167 (App. Div. 1998). Rule 4:46-2(c) provides that a court should grant

summary judgment when "the pleadings, depositions, answers to interrogatories



1
    Branch also moved for summary judgment on its foreclosure complaint.
Plaintiffs opposed that motion. On June 12, 2017, the trial court entered an order
granting Branch's motion, entering default against plaintiffs, and striking their
answer and counterclaims. Although plaintiffs included the June 12, 2017 order
in the foreclosure matter on their notice of appeal, on September 25, 2017, we
entered an order limiting this appeal to the June 12, 2017 order concerning
plaintiffs' complaint because a final judgment had not been entered in the
foreclosure matter. We offer no opinion with respect to the foreclosure matter.
                                                                          A-5170-16T1
                                          5
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." "Thus, the movant must

show that there does not exist a 'genuine issue' as to a material fact and not

simply one 'of an insubstantial nature'; a non-movant will be unsuccessful

'merely by pointing to any fact in dispute.'" Prudential, 307 N.J. Super. at 167

(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529-30 (1995)).

      Self-serving assertions that "[are] unsupported by evidence are

insufficient to create a genuine issue of material fact." Miller v. Bank of Am.

Home Loan Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015).

(alteration in the original) (quoting Heyert v. Taddese, 431 N.J. Super 388, 414

(App. Div. 2013)).     "Competent opposition requires 'competent evidential

material' beyond mere 'speculation' and 'fanciful arguments.'"        Hoffman v.

Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009) (Merchs.

Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super. 556, 563 (App.

Div. 2005)). We review the record "based on our consideration of the evidence

in the light most favorable to the parties opposing summary judgment. " Brill,

142 N.J. at 523.




                                                                           A-5170-16T1
                                        6
      Having carefully reviewed plaintiffs' arguments in light of the record and

applicable legal principles, we conclude that there was ample evidence

supporting the trial court's findings of fact and conclusions of law . Plaintiffs

produced no credible evidence that after they defaulted on the 2011 loan

modification agreement, the parties entered into a new contract modifying

plaintiffs' loan. The permanent loan modification sent to plaintiffs by Branch in

2014 expressly stated that it is conditioned on the notarized signatures of

plaintiffs and two witnesses. Plaintiffs concede that they did not sign that

document. In addition, we see no basis to disturb the trial court's conclusion

that plaintiffs failed to produce credible evidence a Branch representative orally

agreed in 2014 to a permanent loan modification or that Branch acquiesced to

the oral agreement by accepting plaintiffs' monthly payments after expiration of

the trial agreement. In light of these factual findings and legal conclusions, the

trial court's grant of summary judgment to Branch is unassailable.

      To the extent we have not specifically addressed any of plaintiffs'

remaining arguments, we conclude they lack sufficient merit to warrant

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

      Affirmed.




                                                                          A-5170-16T1
                                        7
