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Steven Budge v. E.M.N. Express Mortgage Nationwide

August 18, 2011


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1250-04.

Per curiam.


Argued October 20, 2010

Before Judges Fisher and Sapp-Peterson.

Plaintiff, Steven Budge, appeals from the trial court order granting a directed verdict in favor of defendants, Tom Cherichelo and Leonardo Casiero. We affirm.

Plaintiff's complaint arises out of a failed real estate transaction. The facts surrounding the transaction are set forth in an earlier unpublished opinion, Budge v. E.M.N. Express Mortgage Nationwide, Inc., No. A-5592-05 (App. Div. Mar. 4, 2008), which we incorporate in this opinion:

Plaintiff had a long-standing interest in purchasing a particular parcel of real property in Aberdeen. On occasions during the ten years preceding the events in question, plaintiff indicated to the owner his willingness to purchase the property for $250,000. This offer was eventually accepted sometime in 2001. Although the complaint indicates that a copy of the contract was attached as an exhibit, we have been unable to locate it in the record on appeal even though numerous copies of the complaint are included in the parties' appendices.[ ]

Having obtained a contract to purchase the property, plaintiff considered obtaining a Small Business Administration (SBA) loan. Plaintiff discussed this with defendant AbuDia[b], an EMN representative, and applied through EMN for a $400,000 SBA loan. As part of the process, which he never completed, plaintiff provided a $5,290 deposit to EMN.

At some point, plaintiff advised a friend -- defendant Cherichelo -- about his purchase. Later, while plaintiff was storing equipment in the structure on the property in question, defendants Cherichelo and Casiero appeared and began looking around. According to plaintiff, Cherichelo indicated that he liked the property and wanted to become plaintiff's partner. Plaintiff declined.

In a subsequent conversation, Cherichelo asked plaintiff to allow him to finance the purchase because he thought he could earn greater interest on his money by making a loan to plaintiff. Plaintiff at first balked because he had already deposited funds with EMN regarding the SBA loan but, when assured by his attorney that EMN would return the funds, plaintiff agreed to allow Cherichelo to finance the purchase. Plaintiff prepared a written memorandum for his and Ch[e]r[i]chelo's signature in this regard, and plaintiff's counsel advised the seller that plaintiff was waiving the contract's mortgage contingency. EMN returned the deposit to plaintiff, retaining only the $350 application fee.

The memorandum prepared by plaintiff, which outlined the terms of Ch[e]richelo's alleged oral agreement, was never signed.

And, shortly before the scheduled closing of March 8, 2002, plaintiff lost contact with Cherichelo. Cherichelo gave what plaintiff alleged were bogus excuses for not meeting with him and failed to return plaintiff's telephone calls. As a result, plaintiff was unable to close, and the property was sold to Ch[e]richelo's friend, defendant Casiero.

[Id. at 3-5.]

Plaintiff commenced a common law fraud action, naming as defendants Cherichelo, Casiero, Express Mortgage Nationwide, Inc. (EMN) and its employees, Anabela Ribeiro, Jamal Abu-Diab and Guy Henry. Id. at 5. Upon the completion of discovery, defendants moved for summary judgment. Ibid. The court granted the motion, concluding that the action was governed by the statute of frauds. Id. at 6. We reversed the grant of summary judgment to Cherichelo and Casiero and remanded for further proceedings. Id. at 10-11. We concluded that plaintiff's cause of action was not premised upon his attempt to enforce an oral agreement. Rather, we concluded that plaintiff's complaint was an action for damages based upon a fraudulent scheme which had, as its chief instrument, the alleged oral agreement. In other words, plaintiff does not seek a judgment that would require Cherichelo to comply with the alleged oral agreement, as to which the statute of frauds would come into play; he seeks damages based upon the fact that he lost the ...

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