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Ya Global Investments, L.P v. Juliann Hackett Cliff and Patrick Hackett

February 23, 2011

YA GLOBAL INVESTMENTS, L.P., PLAINTIFF-APPELLANT,
v.
JULIANN HACKETT CLIFF AND PATRICK HACKETT, JR., DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. L-5175-09.

The opinion of the court was delivered by: Wefing, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued November 16, 2010 - Decided Before Judges Wefing, Payne and Koblitz.

The opinion of the court was delivered by WEFING, P.J.A.D.

Plaintiff, YA Global Investments, L.P. ("YA"), brought suit in Hudson County against defendants Juliann Hackett Cliff and Patrick Hackett, Jr. ("Hacketts") seeking to collect upon a personal guarantee. The Hacketts did not file an answer to the complaint but, rather, moved to dismiss for lack of personal jurisdiction. The trial court granted their motion, and YA has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The Hacketts live in Ogdensburg, New York, a city located near the Canadian border. They owned and operated the Patrick Hackett Hardware Company ("PHHC"), headquartered in Ogdensburg and incorporated in New York State. PHHC ran a chain of retail hardware stores in northern New York State. Its customers were primarily residents of northern New York State and Canada. PHHC did not sell over the Internet and never solicited sales in New Jersey.

In the five-year period between 2001 and 2006, PHHC executed five promissory notes to a local bank, Community Bank, N.A., for a total of $2,730,000. On April 6, 2006, each of the Hacketts signed a "Commercial Loan Guaranty" under which they each became personal guarantors of all loans "previously, contemporaneously or hereafter granted" by Community Bank to PHHC. These guarantees covered all debts and obligations "whether arising from dealings between [the bank and PHHC] or from dealings by which [the bank] may become, in any manner whatever, a creditor of [PHHC]." They also included "all interest, fees, charges, attorney fees, and collection costs." The guarantees did not contain a forum selection clause but did specify that they were to be governed by New York law.

The following year, in May 2007, the Hacketts executed a stock purchase agreement under which they agreed to sell all of their shares in PHHC to Wisebuys Stores, Inc. ("Wisebuys"), a Delaware corporation that had its principal place of business in northern New York State. Wisebuys thereafter became a wholly-owned subsidiary of Seaway Valley Capital Corporation ("Seaway"), also a Delaware corporation with its principal place of business in northern New York State.

The sale of the Hacketts' PHHC stock to Wisebuys closed in November 2007. As part of the transaction the Hacketts obtained from Wisebuys a "Warranty Regarding Community Bank Debt" under which Wisebuys promised that by December 2007 the Hacketts would be released from their liabilities under the personal guarantees they executed in April 2006 in favor of Community Bank.

Wisebuys contracted to achieve this release in one of two ways: either by refinancing the notes the Hacketts had guaranteed or arranging for Community Bank to remove them from the guarantees.

Following the close of the stock purchase from the Hacketts, Seaway refinanced PHHC's debt with YA, a Cayman Islands investment fund headquartered in Jersey City, and it also borrowed additional monies from YA. On November 30, 2007, Seaway issued two secured convertible debentures to YA in exchange for $550,000. This transaction was guaranteed by Wisebuys and PHHC; Thomas Scozzafava, who served as the treasurer and chief financial officer of Wisebuys and chairman and chief financial officer of PHHC, executed the documents.

Several months later, on March 4, 2008, YA and Seaway entered into an Exchange Agreement, under which YA agreed to exchange the five promissory notes for a single secured convertible debenture for $2,249,073. The Hacketts contend that this transaction had the effect of releasing them from their earlier guarantees in accordance with Seaway's contractual obligation to secure their release while YA maintains that the Hacketts remain fully obligated. We are not called upon to resolve the substantive merits of that dispute in this appeal.

The day before the Exchange Agreement was executed, on March 3, 2008, Community Bank, the original holder of the notes and the accompanying guarantees, assigned them to plaintiff YA. The terms of the notes and guarantees permitted such assignment and stated that in the event of an assignment, any reference to "Lender" in the ...


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