Justice Diccia Pineda-Kirwan
Community Preservation Corp. (CPC) sought to foreclose claiming Metroplex defaulted on its obligations under the consolidated mortgage and guaranty. CPC moved for summary judgment and striking Metroplex’s affirmative defenses and counterclaims. The court found CPC’s submissions established its prima facie entitlement to summary judgment as against Metroplex. Metroplex claimed improper service of process, but the court stated it failed to move to dismiss the complaint on such ground within 60 days of service of an answer, deeming the defense waived and granting dismissal. Metroplex also claimed CPC failed to serve them with a proper predicate notice of default with an opportunity to cure under the terms of a modified mortgage. The court stated as neither the mortgage nor the extension of the maturity date agreement required a default notice to be sent as a precondition to beginning a foreclosure action based on nonpayment of the mortgage debt at maturity, the fact that CPC sent the notice of default before the maturity date was “of no moment.” Thus, CPC was entitled to summary judgment in its favor against Metroplex, and dismissal of their affirmative defenses and counterclaims.
