On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3814-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Lihotz.
Plaintiff Edward Giaccio appeals from the summary judgment dismissal of his complaint against defendants Hudson Motors Partnership t/a Hudson Toyota (Hudson) and Toyota Motor Credit Corporation (Toyota). Plaintiff's name had been forged by his co-worker, defendant Erwin Melendez, to secure financing through Toyota to purchase an automobile from Hudson. After learning of the forgery, plaintiff filed suit against Melendez, Hudson and Toyota, alleging fraud, consumer fraud and breach of the implied covenant of good faith and fair dealing. Upon investigation, Toyota located and repossessed the vehicle and released plaintiff from the loan obligation.
Hudson and Toyota moved for summary judgment, asserting no involvement in Melendez's fraud and arguing plaintiff suffered no ascertainable loss. Plaintiff filed a cross-motion, seeking to bar defendants from introducing the release at trial because it was executed after the complaint was filed. The court granted defendants' motion and denied plaintiff's motion. We affirm.
The facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995).
In April 2008, plaintiff was thinking of buying a car for his girlfriend. Melendez told him he should stop into Hudson to look at a 2005 Mercedes E500, which he might like. According to plaintiff, Melendez was a "referral guy" for Hudson, stating, "He used to take vehicles out all the time and have people purchase the vehicles."
Plaintiff liked the pre-owned vehicle. The next day after work, plaintiff again visited Hudson. When he arrived at the dealership, Melendez was already there with a salesman drawing up a contract to purchase the car. The contract listed plaintiff and LaKalle Truck Parts (LaKalle) as co-buyers. Plaintiff was employed by LaKalle and Melendez was its co-owner. Melendez assured plaintiff there was no problem to list LaKalle a co-buyer as he would advise his partner. When plaintiff demanded that the contract be changed to have his name and his girlfriend's name listed as the buyers, Melendez told him "oh, no, we can't. We already did the paperwork." Melendez then told him to "just sign it then what you have to do is you will have to go and try to redo the whole loan on your own time and have it done." Plaintiff claims he went along with this due to "time constraints" because he needed to pick up his girlfriend at the bus stop. He conceded that he could have simply come back the next day.
At this time, Melendez began driving a 2004 Mercedes S500. Apparently, Menendez had been denied a loan when he attempted to finance the vehicle's purchase, and was told by Hudson he needed to return the vehicle or present a co-signer on the obligation. Melendez suggested to Hudson that plaintiff would co-sign for him. At some point, Melendez forged plaintiff's signature on the financing agreement. Plaintiff asserts he did not sign the sales and finance documents for the vehicle and did not authorize Melendez to purchase it in his name. About a week later, Melendez "completely disappeared off the face of the earth."
Plaintiff discovered the forgery when he received a call from Toyota informing him he had missed payments regarding the 2004 Mercedes S500. Plaintiff initially thought the call was in reference to the 2005 Mercedes E500 he had purchased. He asked Toyota to send him the sales and finance documents. When he compared the VIN numbers and saw the forged signature, he realized what Melendez had done.
Plaintiff returned to the dealership and spoke with George Scarpedo, the manager of Hudson. Plaintiff asked how the transaction could have occurred without someone from Hudson witnessing plaintiff's signature. Scarpedo responded, "I don't know what happened. I knew [Melendez] for so long, we trusted him." Plaintiff did not speak with any other Hudson employees about the fraudulent transaction.
Plaintiff filed his complaint on July 30, 2008. Sometime before May 29, 2009, the vehicle was recovered and returned to Hudson. On that date, plaintiff received a notice from Toyota informing him that the vehicle would be sold unless he redeemed it by paying the outstanding amount of the loan, listed as $35,987.77.
The discovery end date was set for August 4, 2009. On November 5, 2009, defendant Toyota executed a cancellation of the loan for the vehicle (the Release), purporting to release plaintiff from any claims arising out of the retail installment or finance contracts. The Release also states Hudson paid Toyota an undisclosed amount to satisfy the outstanding loan balance and retain the vehicle. Toyota filed a Universal ...