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Td Bank, N.A., Successor By Merger To Commerce Bank, N.A v. Dennis R. Delellis


February 24, 2011


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-9198-09.

Per curiam.


Submitted December 13, 2010 - Decided Before Judges Sabatino and Alvarez.

This case concerns the enforcement of a personal guaranty on a bank loan. Defendant, Dennis DeLellis, appeals summary judgment entered by the Law Division, finding him individually liable for $176,356.03, plus interest, on a business loan originally made by Commerce Bank, N.A., and subsequently assigned to plaintiff, TD Bank, N.A. We affirm.

According to plaintiff's complaint, and the certification of its Vice President, Charles T. Forrest, Commerce Bank entered into a loan agreement in August 2002 with Hoffman Floor Covering Co., Inc. ("Hoffman"), establishing a revolving line of credit in the maximum amount of $1.35 million. At the time, defendant was the President of Hoffman and held a majority of its stock. Another individual, James Weathersby, was Vice President of, and a minority shareholder in, Hoffman. As an inducement for the loan, defendant, Weathersby, and D&W Leasing, Inc., (another entity owned by defendant and Weathersby), each entered into a guaranty of payment on the line of credit. D&W Leasing has apparently since ceased all operations and has no assets.

As attested in the Forrest certification, the note associated with the line of credit was amended and extended several times. The note matured on August 8, 2008, but amounts due under it thereafter remained unpaid. Meanwhile, Hoffman filed a bankruptcy petition, thereby apparently preventing plaintiff from collecting the debt from Hoffman. This prompted plaintiff to seek recourse from defendant and Weathersby on their personal guarantees.

According to Forrest's certification, as of February 12, 2010, a principal sum of $168,923.99 was due under the note, plus accrued interest through that date of $7,441.04, for a total sum then due of $176,365.03. Interest continues to accrue on the unpaid amount at a rate of 6.75% annually.

In November 2009, plaintiff filed the instant action against defendant and Weathersby in the Law Division, seeking to recover the balance due under the note, plus interest. After answers were filed contesting liability on the personal guaranties, plaintiff moved for summary judgment in February 2010. In support of its motion, plaintiff submitted the Forrest certification, along with a statement of material facts as required under Rule 4:46-2(a).

Defendant requested an adjournment of the summary judgment motion. Plaintiff's counsel objected to the adjournment, and ultimately, defendant's request was denied. Two days before the adjourned return date, defendant submitted a letter brief from his counsel in opposition to the motion. Defendant did not submit an opposing factual certification. Nor did he submit a statement of material facts. Although we have not been supplied with a copy of that letter brief, see R. 2:6-1(a)(2), the transcript of the oral argument before the motion judge reflects that the letter brief raised legal arguments in an effort to prevent enforcement of the guaranty against defendant. Defendant attached to his letter brief a copy of the loan agreement. Co-defendant Weathersby did not provide an opposing certification either, but his attorney submitted a letter joining in defendant's letter brief.

After hearing oral argument,*fn1 the trial court granted summary judgment to plaintiff against both defendants, jointly and severally, for the amount due as set forth in the Forrest certification. In his oral ruling, the motion judge observed that defendant had failed to submit, as called for under Rule 4:46-5, "appropriate affidavits [with] facts that would create a material issue of fact." The judge also found that the Forrest certification sufficed to address the issues raised in defendant's opposing letter brief. In particular, the judge recognized that the Forrest certification showed that "the initial note was extended and that the defendants received the monies that they're being sued on and, again, that is not contested by any sworn certification by the defendants." The judge also noted that defendants had not contested with "any sworn certification that plaintiff is the successor to Commerce [Bank] and the holder of the loan documents." Consequently, the judge concluded that there were no material issues of fact to prevent plaintiff from enforcing the guaranties as a matter of law, subject, of course, to any credits that defendants may be entitled to for any recent payments on the debt.

In his appeal, defendant argues that the trial court's entry of summary judgment was premature. He argues that the loan agreement only obligates the guarantors for unpaid funds loaned through the maturity date of August 1, 2003. He contests the allegedly extended maturity date of August 8, 2008 and he questions whether the lender ever modified or extended the note. Defendant speculates that after he retired from the business in 2006, it is "perfectly conceivable" that "Weathersby alone modified the loan without [defendant's] knowledge or consent . . . and that Weathersby alone guaranteed repayment for any sums advanced pursuant to the alleged extension."

Our Court Rules clearly set forth the obligations of a party seeking to oppose a motion for summary judgment. Rule 4:46-5(a) states:

(a) Specific Facts Required of Adverse Party unless Affidavits are Unavailable. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the pleading, but must respond by affidavits meeting the requirements of R. 1:6-6 or as otherwise provided in this rule and by R. 4:46-2(b), setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered, unless it appears from the affidavits submitted, for reasons therein stated, that the party was unable to present by affidavit facts essential to justify opposition, in which case the court may deny the motion, may order a continuance to permit additional affidavits to be obtained, depositions to be taken or discovery to be had, or may make such other order as may be appropriate.

Moreover, Rule 4:46-2(b) prescribes that:

(b) Requirements in Opposition to Motion. A party opposing the motion shall file a responding statement either admitting or disputing each of the facts in the movant's statement. Subject to R. 4:46-5(a), all material facts in the movant's statement which are sufficiently supported will be deemed admitted for purposes of the motion only, unless specifically disputed by citation conforming to the requirements of paragraph (a) demonstrating the existence of a genuine issue as to the fact. An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue. Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record.

The purpose of these provisions, which operate in tandem, is to assure that any material facts alleged to be in dispute are genuine. "[A] party cannot successfully resist the motion [for summary judgment] by relying either on the conclusionary allegations or the denials of his pleadings." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 4:46-5 (2011); see also Robbins v. Jersey City, 23 N.J. 229, 241 (1957); James Talcott, Inc. v. Shulman, 82 N.J. Super. 438, 443 (App. Div. 1964).

The motion judge in this case correctly applied the summary judgment standards in treating defendant's opposition to the motion as inadequate. To be sure, defendant was entitled to present opposing legal arguments in a letter brief. However, defendant failed to contest, with an appropriate affidavit or certification, the factual statements detailed in the Forrest certification submitted by plaintiff in support of its motion. Consequently, the motion judge properly accepted the facts set forth in the Forrest certification as true.

Defendant did not contend, as he was permitted to contend under the last sentence of Rule 4:46-5(a), that he was unable to present opposing factual proofs because he needed more time to take discovery or to procure affidavits from persons with knowledge. Although defendant speculates about what Weathersby may or may not have done concerning the line of credit without his knowledge, defendant made no effort to pursue those concerns through discovery from Weathersby or from the bank. The unsworn factual assertions and suppositions that defendant advances through his counsel's briefs are inadequate to defeat plaintiff's prayer for relief. See R. 1:6-6 (requiring sworn affidavits or certifications based upon personal knowledge); see also Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div. 1995).

In sum, we discern no legal or factual reason for the trial court to have withheld the summary judgment relief sought by plaintiff. The arguments raised on appeal by defendant lack sufficient merit to warrant further comment. R. 2:11-3(e)(1)(E). The judgment of the trial court is accordingly affirmed.

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