[265 NJSuper Page 447] Plaintiff Banquesource Capital Corp., a mortgage broker, claims a commission for attempting to arrange a mortgage loan between defendant Pine Brook Care Center, Inc., a nursing home operator, and Rhode Island Hospital Trust National Bank, a financial institution in the business of making loans to health care facilities.
On June 26, 1987 Gerald M. Friederwitzer, a/k/a Gerald M. Fried, as individual borrower and as principal of Pine Brook Care Center, Inc., executed two 30 day exclusive authorization agreements authorizing plaintiff to arrange a $4,500,000 renovation and construction loan to be followed by a $4,500,000 permanent loan for the rehabilitation and expansion of a nursing home known as the Pine Brook Care Center, located in Manalapan, New Jersey. Pine Brook Care Center, Inc., is the corporate operator of the nursing home. The principals of the corporation are Marvin Beinhorn, Hirsch Wolf, Eric Paneth, and Gerald Fried.
The nursing home is located on property owned by Freehold Realty Associates, a partnership whose principals are Eliuohu E. Dessler and Suri Dessler, husband and wife. Suri Dessler is the daughter of Hirsch Wolf. Pension Road Realty is a partnership consisting of defendants Beinhorn, Wolf, Paneth and Fried which was created to take title to the land on which the nursing home is located.
For this purpose, Pension Road Realty acquired, through a series of transactions, certain options granted by Freehold Realty Associates. When the parties executed the commission agreement of June 26, 1987, title was held by Freehold Realty Associates. Mr. and Mrs. Dessler and Freehold Realty Associates, although named in the complaint, have never been served and are therefore not before this court.
To obtain the loan, plaintiff Banquesource Capital Corp., contacted Rhode Island Hospital Trust National Bank. Plaintiff's efforts produced a mortgage proposal dated September 3, 1987 from this Bank. This proposal promised a loan commitment if Pine Brook Care Center, Inc. met certain conditions listed in the proposal. Defendant Beinhorn accepted the proposal, agreed to the conditions and forwarded $15,000 to Rhode Island Hospital Trust National Bank to cover a "set-up fee".
On October 29, 1987, Rhode Island Hospital Trust National Bank issued a conditional commitment in the amount of $4,300,000. An additional fee of $28,000 was demanded, which Beinhorn paid
when he accepted the commitment. One of the conditions imposed was the execution and delivery of a first mortgage lien on the nursing home to include buildings, land and improvements.
As the transaction proceeded, environmental problems were discovered on the property and the Bank required their correction prior to the closing. Defendants hired an environmental specialist, EFP Associates, to clean up the site by removing an 8000 gallon underground oil tank and the surrounding contaminated soil. Despite defendants' efforts, Rhode Island Hospital Trust National Bank was dissatisfied with the result and it began imposing additional clean-up and monitoring requirements. Although defendants disagreed with the need for these additional requirements, they nonetheless attempted to comply with them.
As the environmental problems were being addressed, Rhode Island Hospital Trust National Bank extended the commitment several times. Defendants agreed to all the extensions and accepted all the conditions imposed by the Bank to obtain them. These included the threat of substantial daily penalties which unnerved defendants.
Before the environmental situation could be resolved, plaintiffs were forced to commence construction by March 17, 1988 to prevent the expiration of the Certificate of Need required and issued by the New Jersey Department of Health. Since the loan had not closed, defendants began to advance construction costs from their own pockets in the anticipation of recouping these moneys from the proceeds of the loan.
During this period there was extensive correspondence between the attorneys for Rhode Island Hospital Trust National Bank and the attorneys for defendants, all of which was directed to ...