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Budge v. E.M.N. Express Mortgage Nationwide

March 4, 2008


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1250-04.

Per curiam.


Argued February 4, 2008

Before Judges Stern, A.A. Rodríguez and C.S. Fisher.

All the defendants to this fraud action obtained summary judgment. After careful consideration of the issues on appeal, we affirm the summary judgment entered in favor of defendants E.M.N. Express Mortgage Nationwide, Inc. (EMN) and its employees, Anabela Ribeiro, Jamal Abu-Diab and Guy Henry (EMN and these individual defendants are sometimes collectively referred to herein as "the EMN defendants"), but reverse the summary judgment entered in favor of defendants Tom Cherichelo and Leonardo Casiero. We also reject plaintiff's argument that the judge erred in denying one of his discovery motions.

In reviewing an order granting summary judgment, we apply the same standard that trial judges must apply. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). This standard requires that we consider whether the evidential material presented on the motion, when viewed in the light most favorable to the opponent, is sufficient to allow a rational factfinder to render a verdict in favor of the motion's opponent. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In other words, "when the evidence 'is so one-sided that one party must prevail as a matter of law,' the trial court should not hesitate to grant summary judgment," but when the evidential material reveals a genuine dispute about a material fact, then summary judgment is precluded. Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512, 91 L.Ed. 2d 202, 214 (1986)). Viewing plaintiff's allegations in the light most favorable to him, we must assume the truth of the following set of circumstances.

Plaintiff had a long-standing interest in purchasing a particular parcel of real property in Aberdeen. On occasions during the ten years preceding the events in question, plaintiff indicated to the owner his willingness to purchase the property for $250,000. This offer was eventually accepted sometime in 2001. Although the complaint indicates that a copy of the contract was attached as an exhibit, we have been unable to locate it in the record on appeal even though numerous copies of the complaint are included in the parties' appendices.*fn1

Having obtained a contract to purchase the property, plaintiff considered obtaining a Small Business Administration (SBA) loan. Plaintiff discussed this with defendant Abu-Dian, an EMN representative, and applied through EMN for a $400,000 SBA loan. As part of the process, which he never completed, plaintiff provided a $5,290 deposit to EMN.

At some point, plaintiff advised a friend -- defendant Cherichelo -- about his purchase. Later, while plaintiff was storing equipment in the structure on the property in question, defendants Cherichelo and Casiero appeared and began looking around. According to plaintiff, Cherichelo indicated that he liked the property and wanted to become plaintiff's partner. Plaintiff declined. In a subsequent conversation, Cherichelo asked plaintiff to allow him to finance the purchase because he thought he could earn greater interest on his money by making a loan to plaintiff. Plaintiff at first balked because he had already deposited funds with EMN regarding the SBA loan but, when assured by his attorney that EMN would return the funds, plaintiff agreed to allow Cherichelo to finance the purchase. Plaintiff prepared a written memorandum for his and Chirchelo's signature in this regard, and plaintiff's counsel advised the seller that plaintiff was waiving the contract's mortgage contingency. EMN returned the deposit to plaintiff, retaining only the $350 application fee.

The memorandum prepared by plaintiff, which outlined the terms of Chirichelo's alleged oral agreement, was never signed.*fn2

And, shortly before the scheduled closing of March 8, 2002, plaintiff lost contact with Cherichelo. Cherichelo gave what plaintiff alleged were bogus excuses for not meeting with him and failed to return plaintiff's telephone calls. As a result, plaintiff was unable to close, and the property was sold to Chirichelo's friend, defendant Casiero.

Plaintiff commenced this action for damages, asserting defendants' participation in this alleged scheme. After a period of discovery, defendants successfully moved for summary judgment.

Plaintiff appealed, arguing that the trial judge erroneously granted summary judgment, and that his right to discovery was inappropriately limited. We find insufficient merit in plaintiff's arguments regarding the summary judgment entered in favor of the EMN defendants to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we reverse the orders of summary judgment entered in favor of Cherichelo and Casiero.

In explaining the basis for our ruling, we first need to describe what this case is and is not about. Contrary to the arguments of Cherichelo and Casiero, plaintiff's claim does not turn on the application of the statute of frauds. It turns ...

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