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AMBOY NAT'L BANK v. GENERALI

June 27, 1996

AMBOY NATIONAL BANK, Plaintiff,
v.
GENERALI - U.S. BRANCH a/k/a THE GENERAL INSURANCE CO. OF TRIESTE AND VENICE AND CITIBANK, N.A., Defendants. CITIBANK, N.A., Third-Party Plaintiff, v. MIDLANTIC BANK, N.A., WILLIAM SOMERS, JR. AND SOMERS ASSOCIATES, Third-Party Defendants. MIDLANTIC BANK, N.A., Fourth-Party Plaintiff, v. WILLIAM SOMERS, JR., SOMERS ASSOCIATES, INC., AND THE RESOLUTION TRUST CORP., as Receiver for the Hansen Savings Bank, SLA, and COLLECTIVE BANK, Fourth-Party Defendants. THE RESOLUTION TRUST CORP., Third-Party Plaintiff, v. WILLIAMS SOMERS, JR., AND SOMERS ASSOCIATES, INC., Third-Party Defendants. GENERALI- U.S. BRANCH, Fifth-Party Plaintiff, v. WILLIAMS SOMERS, JR., AND SOMERS ASSOCIATES, INC., Fifth-Party Defendants. WILLIAM SOMERS, JR., Fifth-Party Plaintiff, v. GEORGE SHARPF, OLIVE BRAY, GEORGE BRENNAN, JOSEPH DISEPIO, JONATHAN HEILBRUNN, FRANK KURZAWA, ROBERT O'DONNELL, MELVIN SAFRAN, ESTATE OF ERNEST SHARPF, HAROLD SMITH, CARMEN YACUZZIO AND JOHN DOES(S), fictitious name(s), Fifth-Party Defendants.



The opinion of the court was delivered by: WALLS

 WALLS, District Judge

 This matter comes before the Court on the motion for summary judgment of fourth and fifth-party defendants and fifth-party plaintiffs William A. Somers' ("Somers") and Somers Associates, Inc.'s ("Somers Associates") against plaintiff Amboy National Bank ("Amboy"); on Amboy's cross-motion for summary judgment against Somers; on third-party defendant and fourth-party plaintiff Midlantic Bank, N.A.'s ("Midlantic") motion for summary judgment against Amboy and against defendant and third-party plaintiff Citibank, N.A. ("Citibank"); on defendant and third-party plaintiff Citibank, N.A.'s motion for summary judgment against Amboy; on fourth-party defendants and third-party plaintiffs Federal Deposit Insurance Corporation's ("FDIC"), as successor in interest to, Resolution Trust Corporation, as Receiver for Hansen Savings Bank, SLA and Collective Bank's ("Collective") motion for summary judgment against Amboy; and on defendant and fifth-party plaintiff Generali's - U.S. Branch s/h/a "Generali - U.S. Branch a/k/a The General Insurance Company of Trieste & Venice" ("Generali") motion to dismiss Amboy's complaint.

 All of these motions can be easily distilled to their essence. Amboy has sued Generali and Citibank. Citibank impleaded Midlantic, which impleaded in turn Somers, Somers Associates and the RTC (now the FDIC). RTC then sued Somers and Somers Associates. Also, Generali impleaded Somers and Somers Associates. Hence, there are only two motions at issue: the first is the one for summary judgment to dismiss Amboy's complaint against Generali and Citibank. All non-Amboy parties, being potentially liable only to the extent that Amboy's complaint is viable, have moved for dismissal against Amboy on essentially the same grounds. And the other distinct motion is Amboy's, which seeks dismissal of Somers action against it.

 FACTS

 The basic facts are simple. Allegedly, Somers forged a check, and now the assignee (Amboy) of the payee (Sun Life Assurance Company of Canada ("Sun Life")) whose signature was forged, is suing the insurance company that issued the check (Generali), the bank where the check was deposited (now the FDIC), the bank that initially indorsed the check (Midlantic), and the bank (Citibank) upon whom the check was drawn.

 Here is the context of this dispute: Somers was a general partner of Pine Run Limited, a limited partnership that owned Section III of the Village of Pine Run Apartments; his corporation, Somers Associates, Inc., managed and operated the property pursuant to a management agreement. Sun Life held a first mortgage on that property while Amboy possessed a subordinate mortgage. Generali issued an insurance policy against damage from fire to the property. The policy provided that payments in settlement of any claim under the policy would be made payable to both mortgagees, Sun Life and Amboy.

 The property sustained fire damage. Somers Associates submitted a claim to Generali for the fire loss, which was adjusted for the amount of $ 282,025.00: Generali agreeing to pay $ 237,542.00 forthwith and $ 39,483.00 to be held in reserve and paid upon the completion of repairs.

 Although the declaration of the insurance policy named Pine Rune LTD as the named insurer for the property, Generali issued an April 5, 1990 check on the loss, for $ 237,540.00, drawn on Citibank, to the order of: "Somers Associates, Inc, as insured; Sun Life Assurance Co of Canada c/o Meritor Mortgage Corp. as First Mortgagee." Although the check was paid on the apparent written endorsement of both payees on the back of the check, Sun Life had neither endorsed nor authorized any endorsement to the check.

 In the aftermath of the forgery, numerous suits, including several between Amboy and Somers, were commenced. On April 22, 1992, Amboy and Somers entered into a global settlement agreement providing for cross-releases between the two parties, including all of the many entities under which Somers operated, or he directly or indirectly controlled, or to which liability might be imputed based upon his conduct ("Somers Entities"). In accordance with the settlement agreement, Amboy took immediate control of the property as mortgagee in possession. The Somers Entities agreed not to contest Amboy's foreclosure actions. Under the consent agreement, Amboy would have no recourse against any Somers Entity for any deficiency. On November 4, 1992, Amboy was awarded a judgment of foreclosure on the property in the amount of $ 2,370,664.95.

 Amboy subsequently began this suit, in New Jersey Superior Court, Middlesex County, in February 1993, *fn1" against Generali, Sun Life, and others, and had sought, as an alternative to a judgment against Generali for the insurance proceeds, a declaration that the check be deemed paid to Sun Life, thereby reducing the amount of Sun Life's superior lien.

 Amboy and Sun Life entered into an agreement whereby Amboy paid to Sun Life the full amount of principal and interest due on Sun Life's mortgages on the property, and released and held harmless Sun Life from any and all claims relating to the fire insurance proceeds. *fn2" In return, Sun Life assigned its rights, title and interest in and to the mortgage to Amboy. According to Amboy, the parties intended that the assignment would permit Amboy to subrogate to and assume Sun Life's interest in the insurance proceeds. However, to clarify their intention, the parties executed on December 15, 1995 an assignment document stating that as of December 21, 1993, the parties had intended such claims to transfer by assignment.

 At the sheriff's sale on Amboy's foreclosure of the second mortgage, Amboy tendered a successful bid of $ 100 for the property. It subsequently transferred the bid to Blackwood, L.L.C. ("Blackwood"), an entity affiliated with Amboy. By deed of April 22, 1994, and the property was transferred by the sheriff to Blackwood by deed dated April 22, 1994.

 DISCUSSION

 SUMMARY JUDGMENT STANDARD

 Summary judgment is appropriate where the moving party establishes that "there is no genuine issue of material fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The movant must show that if the evidence submitted were reduced to evidence admissible in court, it would be insufficient to permit the non-moving party to carry its ...


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