Justice Thomas Whelan
Valley National Bank sought to foreclose a consolidated commercial mortgage given to 58 VLIMP secured by a note, and individual guaranty. The executed loan documents contained waivers of defenses, claims and off-sets. Defendants defaulted in their payment obligations. The bank sought summary judgment dismissing defendants’ affirmative defense and counterclaim in the amended answer. Defendant argued any default in payment was excusable due to the bank’s conduct, including its failure to extend further credit contemplated by a loan application. The court found such contention without merit, noting a failure to modify or refinance an existing loan did not give rise to an estoppel or constitute bad faith upon which defendant could predicate a cognizable defense to a claim for foreclosure and sale. It also stated the documents from the new 2011 loan application were separate writings independent from the mortgage loan documents. Thus, defendants’ counterclaim charging the bank with breach of a purported obligation under the new documents could not serve to defeat the bank’s entitlement to summary judgment on claims for foreclosure and sale, which were explicitly waived. Hence, the bank’s motion was granted.
