                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4599-12T1




LEONARDO ARIAS and
RUTH M. PADILLA,
                                      APPROVED FOR PUBLICATION
      Plaintiff-Appellants,
                                         January 23, 2015
v.
                                         APPELLATE DIVISION
ELITE MORTGAGE GROUP, INC.,
RAY SALAZAR, W.M.C. MORTGAGE,
CORPORATION, GE MONEY, GE
CAPITAL, and DEUTSCHE BANK,

      Defendants,

and

BANK OF AMERICA, N.A., s/h/a
BANK OF AMERICA HOME LOANS,

     Defendant-Respondent.
______________________________

          Submitted December 9, 2014 – Decided January 23, 2015

          Before Judges Reisner, Koblitz and Haas.

          On appeal from the Superior Court of New
          Jersey, Law Division, Bergen County, Docket
          No. L-1316-12

          Joseph A. Chang, attorney for appellants
          (Mr. Chang, of counsel and on the brief;
          Jeffrey Zajac, on the brief).
           Reed Smith LLP, attorneys for respondent
           (Aaron M. Bender, of counsel and on the
           brief).

           The opinion of the court was delivered by

REISNER, P.J.A.D.

     Plaintiffs Leonardo Arias and Ruth M. Padilla1 appeal from

an April 19, 2013 order granting summary judgment in favor of

defendant Bank of America, N.A. (the bank).

     To summarize, this case involves a dispute over a mortgage

securing a loan plaintiffs obtained to purchase a two-family

house.2   Plaintiffs claim that they had a contractual right to a

loan modification under the terms of the Trial Period Plan (TPP)

Agreement they signed pursuant to the federal Home Affordable

Mortgage Program (HAMP), and they assert that defendant breached

the contract.    In the alternative, they contend that the bank

violated the covenant of good faith and fair dealing in denying

them the loan modification.




1
  Plaintiffs, husband and wife, both signed the mortgage, but
only Arias signed the note.    We refer to Arias separately when
discussing documents addressed only to him.
2
  There is no dispute that plaintiffs live in one unit and rent
out the other unit.    At his deposition, Arias admitted that,
even after plaintiffs entirely ceased paying the mortgage, they
continued collecting between $1200 and $1800 per month from
tenants. There is also no dispute that at some point plaintiffs
stopped paying the taxes on the property, contrary to their
obligation under the mortgage.



                                2                        A-4599-12T1
       The motion judge concluded that the TPP Agreement was not a

binding   contract      to    modify    the       loan.         The    judge    found       that

plaintiffs, who are licensed real estate agents, understood that

the Agreement did not give them any such contractual right.                                  The

judge    reasoned      that    the     bank       was    not     required       to    provide

plaintiffs with a loan modification, based on its determination

that they did not qualify for one.                        The judge also concluded

that    plaintiffs     had     "no    viable       cause       of     action"      under    the

federal HAMP guidelines, or based on the covenant of good faith

and fair dealing.

       Our review of a summary judgment order is de novo, using

the same standard employed by the trial court.                             Gray v. Caldwell

Wood    Prods.,   Inc.,       425    N.J.   Super.        496,      499-500     (App.       Div.

2012).        Having   reviewed       the   record,        we       find    there    were    no

material facts in dispute, and we agree with the trial judge

that defendant was entitled to judgment as a matter of law.                                  See

Brill    v.   Guardian    Life       Ins.   Co.     of    Am.,       142    N.J.     520,    540

(1995).       However, we arrive at that conclusion by a slightly

different route than the trial court.

                                              I

       Before reviewing the record and setting forth our own legal

analysis, we briefly discuss the most pertinent case law on

which the parties rely.             In Wigod v. Wells Fargo Bank, N.A., 673




                                              3                                       A-4599-12T1
F.3d   547    (7th      Cir.     2012),    the       court     cogently        explained     the

federal      HAMP    program,       which        was      designed        to    address      the

residential mortgage foreclosure crisis by encouraging lenders

to extend loan modifications to qualified mortgagors.                                   Id. at

556-57; see Emergency Economic Stabilization Act of 2008, 12

U.S.C.A. § 5219(a)(1).              The court concluded that, even though

there is no private cause of action under HAMP, a mortgagor may

nonetheless assert a common-law contract claim based on a bank's

failure     to    honor    promises       made       in   a   HAMP   Trial       Period     Plan

Agreement.3         The    court    reasoned          that     the   terms       of   the    TPP

Agreement must be construed as a promise by the bank that if the

debtor    complies        with    its    terms,       she     will   be    offered     a    loan

modification.           The court thus described the TPP Agreement as

including "a unilateral offer to modify Wigod's loan conditioned

on her compliance with the stated terms of the bargain."                                Wigod,

supra, 673 F.3d at 562.                 The court reasoned that "a reasonable

person in Wigod's position would read the TPP as a definite

offer to provide a permanent modification that she could accept

so   long    as   she     satisfied       the       conditions."          Ibid.;      see   also


3
  HAMP provides financial incentives for mortgage servicers to
assist debtors to obtain loan modifications. Wigod, supra, 673
F.3d at 556; see also Young v. Wells Fargo Bank, N.A., 717 F.3d
224, 228-29 (1st Cir. 2013). We note that defendant in the case
before us acted as a loan servicer, but for simplicity, we refer
to defendant as the "bank."



                                                4                                      A-4599-12T1
Corvello v. Wells Fargo Bank, N.A., 728 F.3d 878, 883-85 (9th

Cir. 2013); Young, supra, 717 F.3d at 234; Bosque v. Wells Fargo

Bank,   N.A.,    762    F.    Supp.   2d    342      (D.    Mass.    2011);   West     v.

JPMorgan Chase Bank, N.A., 154 Cal. Rptr. 3d 285 (Ct. App.),

rev. denied, 2013 Cal. LEXIS 5801 (July 10, 2013).

       The court rejected the bank's argument that there was no

consideration for a promise to grant a loan modification because

the debtor was merely making a partial payment of a debt she

already owed. Wigod, supra, 673 F.2d at 564. The court pointed

out that in entering into the TPP Agreement, the debtor agreed

to provide additional financial information and agreed to attend

debt    counseling      if    asked   to       do   so.      Ibid.4;    see    Seaview

Orthopaedics v. Nat'l Healthcare Res., Inc., 366 N.J. Super.

501,    508-09        (App.    Div.    2004)         (discussing        adequacy       of

consideration).         The court also rejected the bank's argument

that the TPP Agreement left to the bank's sole and unbridled

discretion      whether       to   actually         send    the      debtor   a      loan

modification agreement once she complied with her obligations

under    the    TPP    Agreement.          The      court    found    that    such    an




4
  In a related point concerning plaintiff's promissory estoppel
claim, the court noted she had refrained from other legal
options she might have pursued, including filing for bankruptcy
or selling her home. Id. at 566.



                                           5                                  A-4599-12T1
interpretation would render the TPP Agreement illusory.                       Wigod,

supra, 673 F.3d at 563.

       While there are no reported New Jersey cases addressing the

contractual status of a TPP Agreement, case law suggests that an

agreement that purports to bind a debtor to make payments while

leaving the mortgage company free to give her nothing in return

might violate the New Jersey Consumer Fraud Act (CFA), N.J.S.A.

56:8-1 to -195.       See Gonzalez v. Wilshire Credit Corp., 207 N.J.

557,    576-78   (2011).         Gonzalez     involved   a     different   factual

scenario from the one in this case.                 However, in Gonzalez the

Court    strongly     signaled     its    disapproval     of      post-foreclosure

financing deals that essentially turned debtors into "cash cows"

without ever restoring their mortgages to current status.                        Id.

at 570, 582-83.

       Wigod   and    Gonzalez    were    decided   in   different       procedural

postures than the case before us.                Wigod involved a motion to

dismiss on the pleadings.              Gonzalez involved summary judgment

granted    due   to    a    mistaken     interpretation      of    the   CFA.      In

remanding for trial, the Court noted that there were material

factual    issues     and    plaintiff's       factual    claims     "still     must

survive the crucible of a trial."              Gonzalez, supra, 207 N.J. at

586.     In this case, the undisputed facts permitted the trial

court, and permit us as well, to decide the merits.




                                          6                                A-4599-12T1
                                       II

      As   with   all    contract     claims      we   begin    our   analysis   by

considering    the   language    of    the     document    in    question.       See

Cooper River Plaza E., LLC v. Briad Grp., 359 N.J. Super. 518,

527 (App. Div. 2003).           The TPP Agreement is captioned "HOME

AFFORDABLE MODIFICATION TRIAL PERIOD PLAN (Step One of Two-Step

Documentation Process)."        The first sentence of the Agreement's

text states:

             If I am in compliance with this Trial Period
             Plan (the "Plan") and my representations in
             Section 1 continue to be true in all
             material respects, then the Servicer will
             provide   me    with   a   Home    Affordable
             Modification     Agreement     ("Modification
             Agreement"), as set forth in Section 3.

In   turn,   Section     3   provides,       in   pertinent     part,   that     the

Servicer will determine the amounts of unpaid interest and other

charges to be added to the loan balance and determine "the new

payment amount."        This section then repeats that:

             If I comply with the requirements in Section
             2 and my representations in Section 1
             continue   to  be   true   in  all   material
             respects, the Servicer will send me a
             Modification Agreement for my signature.

             [(Emphasis added).]

      Significantly, Section 2 of the TPP required plaintiffs to

make three trial period payments of $1860 each, by the specified

due dates of October 1, 2009, November 1, 2009, and December 1,




                                         7                                A-4599-12T1
2009.   Paragraph 2A notified plaintiffs, in capital letters,

that "TIME IS OF THE ESSENCE under this Plan."         Paragraph 2

defined the "Modification Effective Date" as the first day of

the month following the month in which the last payment was due

(in this case, January 1, 2010).      Paragraph 2F unambiguously

stated that:

         If prior to the Modification Effective Date,
         (i) the Servicer does not provide me a fully
         executed   copy   of  this   Plan  and   the
         Modification Agreement; (ii) I have not made
         the Trial Period payments required under
         Section 2 of this Plan; or (iii) the
         Servicer determines that my representations
         in Section 1 are no longer true and correct,
         the Loan Documents will not be modified and
         this Plan will terminate.

         [(Emphasis added).]

    Paragraph 2G further put plaintiffs on notice that the TPP

itself was not a loan modification and their failure to strictly

comply with the terms of the TPP would result in denial of a

loan modification:

         I understand that the Plan is not a
         modification of the Loan Documents and that
         the Loan Documents will not be modified
         unless and until (i) I meet all of the
         conditions required for modification, (ii) I
         receive   a   fully   executed    copy    of   a
         Modification   Agreement,    and    (iii)    the
         Modification Effective Date has passed.        I
         further   understand   and   agree   that    the
         Servicer will not be obligated or bound to
         make any modification of the Loan Documents
         if   I  fail   to   meet   any   one   of    the
         requirements under this Plan.



                                8                           A-4599-12T1
              [(Emphasis added).]

       Based on our reading of the TPP Agreement, we conclude that

it was "a unilateral offer," pursuant to which the bank promised

to     give     plaintiffs    a     loan     modification,          if       and     only    if

plaintiffs       complied    fully     and       timely     with    their      obligations

under     the     TPP,    including        making     all     payments         timely       and

providing        documentation        establishing           that        the       financial

representations they made to the bank in applying for the TPP

were    accurate      when   made    and    continued       to     be    accurate.          See

Wigod, supra, 673 F.3d at 562; Young, supra, 717 F.3d at 234.

Thus,    plaintiffs       were    required       to   demonstrate            that,    despite

their inability to make their regular mortgage payments, they

were    at    least      financially       reliable       enough        to    make     timely

payments in the reduced amount stated in the TPP Agreement.

And, they were required to document the representations they had

made to the bank, showing that they had the other necessary

qualifications for a modified loan.5




5
  As Wigod noted, in 2009, the HAMP program allowed servicers to
extend   TPP   agreements   without  initially   verifying   the
applicants' representations as to their financial circumstances.
The verification would then take place during the trial period.
Wigod, supra, 673 F.3d at 557.       In 2010, the program was
modified to require the servicers to verify the applicants'
financial qualifications before giving them a TPP agreement.
Id. at 557 n.2.



                                             9                                       A-4599-12T1
    The     summary        judgment       record     clearly       establishes    that

plaintiffs failed to comply with the payment schedule set forth

in paragraph 2 of the TPP Agreement.                  The bank's account records

show that instead of making three $1860 payments by the first of

the month in October, November and December 2009, plaintiffs

made a payment of $1860 payment on October 15, 2009, and a $930

payment on November 17, 2009.                   They paid nothing in December.

Thus, they almost immediately breached the terms of the TPP

Agreement    by     failing       to    make      either     timely    or   sufficient

payments.      Indeed,      for    the     three     month    period    alone,   their

payments were short by $2790.                  They failed to make any payment

in January.         Assuming the trial period continued in January,

they were required to pay another $1860 on January 1, 2010,

making a total of $4650 then due and owing.

    On January 20, 2010, the bank sent Arias a letter informing

him that the bank had not received all of the required TPP

payments,    and     had    not        received     certain     required     financial

documentation.       The letter gave him until thirty days from the

date of the letter or January 31, 2010 "whichever is later," to

make the required payments and submit the missing documents,

failing     which     he    would        "not     receive      a   Home     Affordable

Modification."




                                           10                                 A-4599-12T1
       Thus, arguably, the letter extended the trial period to

February 20, 2010.          The bank's records show that on February 16,

2010, plaintiffs submitted a payment of $3720, which was not

even    equivalent     to     what    they    owed   as     of    January     1,   2010.

Indeed,       by   February    1,     plaintiffs     owed       yet   another      $1860,

bringing the total they owed to $6510.

       On April 27, 2010, the bank sent Arias a letter notifying

him    that    his   loan     was    "not    eligible     for    a    Home   Affordable

Modification" because he "did not make all of the required Trial

Period Plan payments by the end of the trial period."                                Even

assuming that the TPP had been extended to February 20, 2010,

the April 27, 2010 notice was entirely correct.                        Plaintiffs had

engaged in a pattern of non-payment and inadequate payment which

constituted a breach of the TPP Agreement and justified the bank

in refusing to give them a loan modification.6                        On these facts,

we find neither a breach of contract nor a breach of the duty of

good faith and fair dealing.                 The duty of good faith and fair

dealing "does not 'alter the terms of a written agreement.'"

6
  We are unimpressed with plaintiffs' reliance on unpublished
opinions involving debtors who faithfully made their TPP
payments but were denied a loan modification.        Plaintiffs
attempt to gloss over their breach of the Agreement, contending
that they made payments after receiving the April 27 letter
denying them a loan modification.    However, even after being
denied a loan modification, they had a continuing obligation to
pay the mortgage and the bank had a right to accept those
payments.



                                            11                                  A-4599-12T1
Glenfed Fin. Corp. v. Penick, 276 N.J. Super. 163, 175 (App.

Div.   1994)   (citation   omitted),    certif.   denied,   139   N.J.   442

(1995).    Consequently, we affirm the order on appeal.

       Affirmed.




                                   12                              A-4599-12T1
