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Clifton Beale Consulting, LLC v. Peregrine Financial Group

June 26, 2007

CLIFTON BEALE CONSULTING, LLC AND CLIFTON BEALE - PARTNER & INDIVIDUAL, PLAINTIFFS-APPELLANTS,
v.
PEREGRINE FINANCIAL GROUP, INC., PEREGRINE EXCHANGE, INC., REBECCA J. WING, ESQ., KAPITAL MANAGEMENT CO., L.P., KAPITAL TRADING GROUP, LLC, JOHN NICK KONTOROUSIS, GEORGE NICK KONTOROUSIS, DEFENDANTS-RESPONDENTS, AND COMMERCE BANK, N.A.*FN1, DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3651-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 13, 2007

Before Judges Payne and Lihotz.

Plaintiffs Clifton Beale (Beale) and Clifton Beale Consulting, LLC, appeal from the following Law Division orders:

(1) March 8, 2005, which dismissed plaintiffs' complaint against defendant Peregrine Financial Group, Inc. (Peregrine), with prejudice; (2) January 13, 2006, which granted summary judgment as requested by defendants Kapital Management (KM), Kapital Trading Group, LLC (KTG), John Nick Kontorousis and George Nick Kontorousis (Kontorousis) and dismissed plaintiffs' complaint with prejudice; (3) January 13, 2006, which denied plaintiffs' motion for summary judgment; and (4) February 3, 2006, which denied plaintiffs' motion for reconsideration of the January 13, 2006 order.*fn2 We affirm.

In January 2003, Beale initiated a proceeding before the Commodity Futures Trading Commission (CFTC) against KTG, Kontorousis, and Peregrine, alleging fraud and seeking a return of two investments that totaled $37,000. The CFTC was created by Congress as part of the 1974 amendments to the Commodity Exchange Act (CEA), 7 U.S.C.A. § 1. Under the CEA, any person complaining of a violation by a registered commodity futures broker may apply to the CFTC for an order directing the broker to pay reparations to the complainant.

Beale's submissions in the CFTC proceeding included two checks as exhibits: one to KTG for $30,000 and the other to KM for $7,000. The parties made an election to utilize the agency's "voluntary decisional procedure," which provided an expedited disposition, but required the parties to waive the right to: present evidence in an oral hearing; receive a decision containing specific written findings of fact upon which the final decision was based; and appeal the final decision to the Commissioner or the United States Court of Appeals, pursuant to section 14(e) of the Commodity Exchange Act, 7 U.S.C.A. § 18(e). 17 C.F.R. § 12.100(b); see also 17 C.F.R. § 12.106(d).

On February 6, 2004, the CFTC issued a one paragraph final decision in favor of Beale, stating, in pertinent part:

Beale has established that George Nick Kontorousis violated Sections 4(a) and 4b(a)(i) of the Commodity Exchange Act; that Kontorousis' violations proximately caused $30,000 in damages; that Kapital Trading Group, LLC is liable for Kontorousis' violations pursuant to Section 2(a)(1)(A) of the Act; and that Peregrine Financial Group, Inc. is jointly and severally liable as the guarantor of Kapital Trading Group.

Additionally, the CFTC found "Beale [] failed to establish that he [was] entitled to an award to recover the $7,000 payment that he made directly to [KM.]" On February 4, 2004, Peregrine, in compliance with the final CFTC decision, repaid Beale.

On June 30, 2004, Beale, as a self-represented litigant, filed a complaint in the Law Division on behalf of "Clifton Beale Consulting, LLC, and Clifton Beale, as Partner & Individual," that sought recovery of the $7,000 not awarded in the CFTC arbitration, stating:

The main basis and thrust of this civil action is to address matters ignored and wrongfully set aside without comment or action [by the CFTC]. . . . The [CFTC] purposely and obviously ignored evidence . . . [constituting] fraud on the court for the better part of 2 to 2 1/2 years without being made to perform as promised for financial enhancement and enjoyment as expected and deserved of the injured parties being [p]laintiffs.

The series of trial court orders now appealed resulted from various motions filed by defendants. By order dated January 2, 2005, Judge Colalillo dismissed Wing from the litigation after determining plaintiffs failed to establish the requisite personal jurisdiction. In that same hearing, Peregrine's motion to dismiss was heard. After the motion judge concluded the CFTC proceeding was "a final binding arbitration," she dismissed the action against Peregrine, determining that litigation on the same claims was precluded. The order of dismissal was entered on March 8, 2005. ...


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