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

February 24, 2011

TD BANK, N.A., SUCCESSOR BY MERGER TO COMMERCE BANK, N.A., PLAINTIFF-RESPONDENT,
v.
DENNIS R. DELELLIS, DEFENDANT-APPELLANT, AND JAMES WEATHERSBY, DEFENDANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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entered by the Law Division, finding him individually liable for $176,356.03, plus interest, on a business loan originally made by Commerce Bank, N.A., and subsequently assigned to plaintiff, TD Bank, N.A. We affirm.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 ...


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