On appeal from Superior Court of New Jersey, Law Division, Cape May County.
Approved for Publication February 4, 1997.
Before Judges Dreier, D'Annunzio and Newman. The opinion of the court was delivered by Newman, J.A.D.
The opinion of the court was delivered by: Newman
The opinion of the court was delivered by
Plaintiff Janet E. McNeill, individually and as heir to the Estate of Richard McNeill, (McNeill) appeals from the dismissal of her complaint on jurisdictional grounds. The motion Judge determined that a forum-selection clause contained in a mortgage brokerage services agreement placed jurisdiction of McNeill's action in New York County. We disagree and reverse.
The factual background is as follows. McNeill and her husband acquired a marina in the Township of Lower, Cape May County, New Jersey from her husband's parents on May 18, 1971. The property was subject to a Small Business Association (SBA) loan. In 1989, the McNeills took an additional mortgage on the property for $100,000 which was used for improvements and maintenance. The mortgage was due in five years on a balloon payment. In 1993, McNeill and her husband sought to recast the loan.
At this juncture the McNeills spoke to defendant John Wisneski (Wisneski) regarding the recasting of their balloon mortgage loan. Wisneski was asked to find a mortgage company who would lend the McNeills the money. Local brokers had been unable to secure a mortgage for the McNeills. Following this Discussion with Wisneski, an unidentified blond haired man and a company called "Snoopers" visited the property. Toward the end of 1993, McNeill spoke with an individual named Mark from defendant Mercury Capital Corp. (Mercury), the eventual mortgage lender. They spoke between three and five times concerning the progress of the loan. No Discussion of monthly payments or debts which would have to be discharged from the proceeds of the mortgage other than the SBA loan were mentioned.
In December 1993 or January 1994, McNeill received a phone call from a Mercury representative informing her that there was a loan available and setting a settlement date of February 17, 1994. During this same time, McNeill's husband was fighting cancer. On February 1, 1994, McNeill's husband was admitted to the hospital. On February 10, Mercury informed McNeill that she needed to obtain a power of attorney for her husband in order to complete the mortgage transaction. McNeill agreed and signed the papers which Mercury faxed to the hospital. Her husband placed an "X" on the documents indicating that he had transferred power of attorney to his wife.
On February 17, 1994, McNeill, her son-in-law and daughter drove to Mercury's office in New York City for the settlement meeting. Wisneski and defendant Mark Gleitman (Gleitman) were present. The meeting was scheduled to begin at 3 p.m. but did not commence until almost 5 p.m. when Eliot Bakst arrived. McNeill was not represented by counsel. The mortgage papers were signed in the presence of an attorney from Mercury named Mark. The mortgage was for $225,000 at an interest rate of sixteen percent per annum. An additional document signed that date was an "Agreement for Mortgage Brokerage Services." The parties to this agreement were only Gleitman and the McNeills. This agreement contained a forum-selection clause which provided that litigation arising out of the brokerage agreement would be venued in New York County.
Upon signing the mortgage, McNeill authorized Mercury to distribute the proceeds of the mortgage in accordance with a handwritten schedule. The distribution was done as follows:
3. The Deponent [McNeill] has authorized Jay Nussbaum, Esq. and Hal Zoref, as nominee to issue the following checks from the proceeds of the sale or the Deponents are making the following disbursements in connection with expenses incurred in the making of this loan:
a) Jay Nussbaum, Esq $2,250.00
c) East Coast Title Agency ...