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Sunset Financial Resources, Inc. v. Redevelopment Group V

December 12, 2006


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, District Judge:

This matter is before the Court on two motions to dismiss filed by Defendants Flynn Appraisal Associates, Inc. ("Flynn Appraisal") and Brian Flynn ("Flynn").*fn1 Specifically, the Flynn Defendants move to dismiss certain counts and to strike Brian Flynn as a defendant in certain counts in the First Amended Complaint ("FAC") filed by Plaintiff Sunset Financial Resources, Inc. ("Plaintiff"). Second, both Flynn Appraisal and Flynn move to dismiss certain counts of Defendants Dawn Staley and Redevelopment Group V, LLC's First Amended Answer and Cross-Claims (the "FAA"). The claims against Flynn Appraisal and Flynn stem from an allegedly faulty appraisal, issued by Flynn Appraisal, on an athletic facility in Voorhees, New Jersey. For the reasons expressed below, both of Flynn Appraisal and Flynn's motions to dismiss will be denied.


A. The Allegedly Fraudulent Transaction

Because the parties to this case are familiar with its underlying facts, the Court will include only a brief summary of the relevant facts. This case centers on an athletic facility known as "The Coliseum" in Voorhees, New Jersey, a 22-acre commercial sports facility, containing an ice rink, gym, indoor and outdoor swimming pool, fitness center, banquet facility and office space. (FAC ¶ 7.) Plaintiff originally brought this claim against two defendants (Redevelopment Group V, LLC and Dawn Staley)(the "Redevelopment Defendants") seeking to foreclose on a mortgage for the Coliseum and enforce a mortgage note.*fn2 The Redevelopment Defendants argue that they are not responsible for the debt because Plaintiff, an individual named Jay Phillips ("Phillips") and several others put into motion a scheme to defraud and wrongfully induce the Redevelopment Defendants to execute certain loan documents necessary for Phillips to acquire the Coliseum. (FAA ¶ 25-26.)

In order to induce the Redevelopment Defendants to purchase the mortgaged property, the Redevelopment Defendants claim that Plaintiff and other third-party defendants (Phillips, Steven Forman, Sunset Mortgage Company, L.P., and Sunset Commercial) grossly misrepresented the value of the Coliseum, allegedly telling Staley that the Coliseum was worth at least $9,000,000 and that Staley's investment would be secure because she would only be taking out a $4,700,000 mortgage on a property. (Id. ¶ 57.) Phillips also allegedly told Staley that the monthly income stream from the property's current lessees was greater than the monthly mortgage payments. (Id.) After Staley had signed the contract of sale, the Redevelopment Defendants claim that, on August 4, 2004, a closing occurred in Staley's absence. The Redevelopment Defendants claim that Staley's signature was forged on the pertinent loan and closing documents.

B. The Role of Flynn Appraisal Associates, Inc. and Brian Flynn

Brian Flynn is a licensed real estate appraiser working through his appraisal company Flynn Appraisal Associates, Inc. In connection with the transaction, Phillips and others allegedly induced Plaintiff to engage Flynn Appraisal to perform an appraisal of the Coliseum. (Id. ¶ 54-55.) According to the Redevelopment Defendants, Flynn Appraisal valued the Coliseum at over $9,000,000 but failed to conduct such basic due diligence such as investigating the validity of allegedly faked and forged leases or obtaining estoppel certificates for the current tenants of the Coliseum. (Id. ¶ 56, 59-60.) Plaintiff then engaged Boney & Johnson Appraisers ("Boney & Johnson") to provide an independent validation of Flynn Appraisal's appraisal. (Id. ¶ 63.) Boney & Johnson expressed concerns about the validity of the earlier appraisal but, according to the Redevelopment Defendants, Phillips and others induced Boney & Johnson to sign off on the earlier appraisal by making several alleged misrepresentations to them. (Id.)

C. This Court's February 24, 2006 Opinion and Order

Plaintiff filed companion actions in this case on April 8, 2005 in the Superior Court of New Jersey: (1) a foreclosure action against Redevelopment and (2) an action against both Redevelopment and Staley demanding payment of the overdue principle, interest, and late fees under the note. On June 6, 2005, both state court actions were removed to this Court. On July 17, 2005, the Redevelopment Defendants filed an Answer in the note action making a number of counterclaims and third-party claims against various third-party defendants. Third-party defendants Sunset Mortgage/Sunset Commercial and Flynn Appraisal filed motions to dismiss the Redevelopment Defendants' third-party complaint. Plaintiff then filed a motion to amend/correct its Complaint in order to add new parties and new claims (contained in Plaintiff's proposed First Amended Complaint ("FAC")) and the Redevelopment Defendants filed a cross-motion to amend its answer, cross-claims and counterclaims (contained in Defendants' First Amended Answer, Cross-claims, and Counterclaims ("FAA")).

In a February 24, 2006 Opinion and Order, this Court, inter alia, (1) granted Plaintiff's motion to amend and file its FAC and name the Flynn Defendants as direct defendants and (2) granted the Redevelopment Defendants' motion to amend its FAA to bring additional claims against the Flynn Defendants. Sunset Financial Resources, Inc. v. Redevelopment Group V, LLC, 417 F. Supp.2d 632 D.N.J. 2006)("Sunset I"). The Court also denied the Flynn Defendants' motion to dismiss the original cross-claims brought by the Redevelopment Defendants.*fn3 (Id.)

D. New Claims in the FAC and FAA

At issue in this motion are five new claims asserted by Plaintiff against the Flynn Defendants in the FAC. They are as follows:

* Count 22: Plaintiff alleges that Flynn and Flynn Appraisal breached its contract with Plaintiff "to provide [P]laintiff with an accurate appraisal of the fair market value of the [Coliseum] . . . by providing an inaccurate, erroneous and inflated appraisal of the fair market value of the [Coliseum]." (FAC, Count 22 at ¶¶ 2, 3.);

* Count 23: Plaintiff alleges that Flynn and Flynn Appraisal was negligent and engaged in professional malpractice when they failed to provide an accurate appraisal and to confirm the authenticity of certain leases related to the Coliseum; (Id. at Count 23.)

* Count 24: Plaintiff alleges that Flynn breached his fiduciary duty to Plaintiff "by failing to properly and accurately appraise the fair market value of the ...

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