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Poray v. Altimate Discount Mortgage

September 1, 2010

KENNETH A. PORAY, PLAINTIFF-APPELLANT,
v.
ALTIMATE DISCOUNT MORTGAGE, SCOTT OLINGER, DEFENDANTS-RESPONDENTS, AND COUNTRY WIDE HOME LOANS, TOMMY LONGO, AND AMERICA'S WHOLESALE LENDERS, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1443-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 17, 2010

Before Judges Sabatino and Ashrafi.

Plaintiff appeals from an order of August 13, 2009, granting summary judgment to defendants and dismissing plaintiff's complaint with prejudice. We affirm.

In reviewing a grant of summary judgment, an appellate court applies the same standard under Rule 4:46-2(c) that governs the trial court. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), cert. denied, 154 N.J. 608 (1998). We "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In this case, we view the facts most favorably to plaintiff, the party that opposed summary judgment.

In April 2004, plaintiff Kenneth Poray entered into a contract to purchase an ocean-front home in Point Pleasant Beach for $2,900,000. He engaged the mortgage brokerage services of defendant Scott Olinger and his company, Altimate Discount Mortgage, to obtain loans for seventy-five percent of the purchase price. Plaintiff requested an interest-only loan, and Olinger told him that such a "product" was available on the mortgage market. At the low adjustable interest rate sought by plaintiff, he expected his initial monthly payment to be approximately $3,534 on loans totaling $2,175,000.

According to plaintiff, Olinger assisted him in completing a mortgage application. Olinger allegedly told plaintiff that for the seventy-five percent loan-to-value and the dollar amount that he was seeking, plaintiff would have to show $33,000 per month income on the application. According to plaintiff's deposition testimony, he did not have that much income, but Olinger insisted on placing that amount on the application.

Several deadlines passed for plaintiff's exercise of the mortgage contingency option of the contract, but plaintiff still did not have approval for a mortgage loan. Plaintiff was compelled to pay additional amounts of non-refundable deposit money to the seller of the home so that his time to close on the contract would be extended. By August 2004, plaintiff was faced with a time-of-the-essence closing date. On September 16, 2004, he finally received approval for two mortgage loans from defendant Countrywide Home Loans.*fn1 The terms, however, were not for interest-only payments but rather provided options requiring payment of principal. The initial monthly payments were to be $7,205.

Plaintiff reluctantly accepted the mortgage loans and closed on the purchase on September 17, 2004. He was represented at the closing by an attorney, and he signed all the papers disclosing the nature and terms of the loans. Plaintiff asserted that he signed the mortgage documents only because he would have lost his deposit of $430,000 on the contract if he did not accept the loans.

After the closing, plaintiff made only one monthly payment to Countrywide. He then negotiated with Countrywide to forbear on collection of the monthly payments while he sought refinancing. He obtained refinancing in May 2005 and paid off the Countrywide loans.

Plaintiff then filed suit against Countrywide and Altimate, and the principals of each with whom he had dealt, alleging violation of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -20, as well as several other State and federal statutory causes of action. He alleged that he had suffered losses of more than $540,000, which would amount to a claim of more than $1,600,000 in damages when trebled under the Consumer Fraud Act. See N.J.S.A. 56:8-19.

In September 2007, Countrywide moved successfully for dismissal of plaintiff's claims based on alleged statutory and regulatory violations other than misrepresentation under the Consumer Fraud Act. In March 2009, Countrywide and its agent obtained summary judgment dismissing all of plaintiff's remaining claims against them. Plaintiff did not appeal those rulings.

Altimate and Olinger then moved for summary judgment on the ground that plaintiff himself had engaged in fraud by falsely representing that he had a substantially higher income than he did, and therefore, he could not recover from defendants on allegations of their fraud. Defendants cited the deposition testimony of plaintiff, in which he admitted that his monthly income in 2004 was not $33,000 but substantially less. Defendants alleged that, without the knowing misrepresentation of his income, plaintiff would not have ...


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