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Ge Business Financial Services v. Grove Street Realty Urban Renewal

October 11, 2011


The opinion of the court was delivered by: Hon. Jerome B. Simandle


SIMANDLE, District Judge:


This matter arises out of a commercial loan agreement for the construction of a residential apartment complex in West Deptford Township, New Jersey. In October of 2007, Plaintiff GE Business Financial Services Inc. ("GEBFS"), then operating under the name Merrill Lynch Business Financial Services, entered into a commercial loan agreement with Defendant Grove Street Urban Renewal ("Grove Street") which was secured by a mortgage. Plaintiff now seeks to recover on the loan and to foreclose the mortgage on certain property (a residential apartment complex). Currently before the Court is Plaintiff's motion for summary judgment as to Defendant's liability for the full loan amount and for foreclosure on the mortgage. [Docket Item 30.] The principal issues at stake in this motion are (1) whether Plaintiff's name change from Merrill Lynch Business Financial Services to GE Business Financial Services bars Plaintiff from recovery, and (2) whether Defendant can point to a dispute of fact that Plaintiff breached the implied covenant of good faith and fair dealing. As explained below, the Court will grant Plaintiff's motion for summary judgment.


On October 16, 2007, Plaintiff (operating as Merrill Lynch Business Financial Services Inc.) entered into a loan agreement with Defendant Grove Street providing a loan in the amount up to $32,328,683 for the construction of two residential apartment buildings to be located in West Deptford, New Jersey. Poskus Aff. ¶ 7(a). These apartment buildings, called the "RiverWinds Apartments" were designated for age-restricted residents (for adults over age 55). Id. ¶ 9. Defendant signed two promissory notes (Note A and Note B), securing an obligation to repay the loan. Id. ¶ 7(b),(c). Additionally, Plaintiff secured the loan by a mortgage granting Plaintiff a first priority lien in the Rivercove property (the "property" or "Rivercove"), recorded, also, on October 16, 2007. Id. ¶ 8. The loan agreement specified that all principal and interest due under the loan was due to be paid in full by April 30, 2010. Id. ¶ 11. Defendant did not pay off all amounts owed as of the date of maturity, nor has it since; as of August 9, 2011, the amount owed under Notes A and B amounted to $34,574,558. Id. ¶ 12. Consequently, Plaintiff filed this action to recover amounts owed on May 5, 2010. [Docket Item 1.]

Shortly after Plaintiff commenced this action, Defendant filed for Chapter 11 bankruptcy protection, and an automatic stay was entered in this action. [Docket Item 7.] On May 25, 2011, the Bankruptcy Court entered an order granting GEBFS relief from the automatic bankruptcy stay. [Docket Item 11.] Indeed, Plaintiff reports to the Court that on July 29, 2011, the Bankruptcy Court of the District of New Jersey dismissed Defendant's bankruptcy case in its entirety. [Docket Item 25.]

While this case was stayed pursuant to the bankruptcy proceeding, on August 13, 2010, Plaintiff filed a separate action in the United States District Court for the Northern District of Illinois against Thomas E. Hedenberg and Ray H. Tresch. See GE Business Financial Svcs., Inc. v. Hedenberg, Civ. No. 10-5094, 2011 WL 1337105 (N.D. Ill. Apr. 7, 2011). The Illinois action sought a judgment against Hedenberg and Tresch for the amounts due on the loan pursuant to a loan guarantee they signed in conjunction with the loan agreement that is the subject of this instant action. Hedenberg and Tresch are Defendant Grove Street's managing members. Hedenberg Cert. ¶ 1. The District Court for the Northern District of Illinois granted GEBFS's motion for summary judgment on April 7, 2011. GEBFS v. Hedenberg, 2011 WL 1337105 at *5.

On June 30, 2011, Plaintiff moved to appoint a receiver for the apartment complex. [Docket Item 17.] After hearing oral argument on the motion, the Court granted Plaintiff's motion and appointed Trigild Incorporated as receiver on August 16, 2011. [Docket Item 33.] Meanwhile, on August 12, 2011, Plaintiff moved for summary judgment. After receiving opposition and reply briefs from the Parties, the Court held oral argument on the instant motion on September 21, 2011.


A. Standard of Review

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(a). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

Summary judgment will not be denied based on mere allegations or denials in the pleadings; instead, some evidence must be produced to support a material fact. Fed. R. Civ. P. 56(c)(1)(A); United States v. Premises Known as 717 S. Woodward Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993). The nonmoving party must "do more than simply show that there is some metaphysical doubt ...

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