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Vaid v. Mocci

July 27, 2007

MADHUKANT VAID AND HASUMATI VAID, PLAINTIFFS-APPELLANTS,
v.
ANTHONY MOCCI; GUARANTEED CONSTRUCTION AND EXCAVATING, INC., A NEW JERSEY CORPORATION, GUARANTEED CONSTRUCTION, INC., A NEW JERSEY CORPORATION, AND GUARANTEED CONSTRUCTION & DEVELOPMENT, INC., A NEW JERSEY CORPORATION; AND SOUTH HYDE DEVELOPERS, INC., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2978-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 5, 2007

Before Judges Skillman and King.

This is an appeal by plaintiffs from a default judgment in their favor in an action under the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, arising out of a contract for the sale of real property. Plaintiffs claim that the damages awarded by the trial court did not represent their actual damages.

On or about January 3, 2001, plaintiffs entered into a contract to purchase a residence in Woodbridge from defendant Guaranteed Construction. When the contract was executed, the land on which the house was to be constructed was vacant. Plaintiffs paid Guaranteed the agreed $25,000 deposit for the house with three checks, the last of which was dated February 25, 2001. Plaintiffs subsequently obtained a mortgage commitment for the balance of the $250,000 purchase price of the house.

Guaranteed failed even to begin construction of the residence that was the subject of the contract of sale, and it later turned out it did not own the property on which the house was supposed to be constructed. Guaranteed also failed to return plaintiffs $25,000 deposit.

On May 5, 2002, Guaranteed's attorney sent a letter to plaintiffs' attorney, which stated:

Thank you for your letter dated May 8, 2002.

Please be advised that I have spoken with my client and he indicates to me that he has every intention of building this home in accordance with the Contract of Sale.

Please be advised my client has had extreme construction delays and costs overruns which have delayed this project. If it is that your clients still wish to purchase this home I ask that they be patient and continue to work with us. In the event they choose not to wait we will promptly refund the deposit monies.

On or about May 1, 2004, Guaranteed's principal, defendant Anthony Mocci, acquired the undeveloped lot on which Guaranteed had contracted to construct a residence for plaintiffs for $101,000. However, rather than fulfilling its obligations under the contract of sale with plaintiffs, on or about May 6, 2004, another company in which Mocci is the principal, defendant South Hyde Developers, Inc., sold the property to a third party for $170,000, thereby realizing a $69,000 profit.

On April 21, 2005, plaintiffs brought this action against defendants, asserting various causes of action, including breach of contract and violations of the Consumer Fraud Act. As of that date, Guaranteed had still not returned plaintiffs' $25,000 deposit.

Defendant Mocci answered the complaint, but his answer was subsequently suppressed for failure to answer interrogatories and requests for the production of documents. The other defendants apparently did not even answer the complaint. As a result, a ...


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