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Eugene Kirby and Elizabeth Kirby v. Chase Home Finance

January 6, 2012

EUGENE KIRBY AND ELIZABETH KIRBY, PLAINTIFFS-APPELLANTS,
v.
CHASE HOME FINANCE, LLC, U.S. MORTGAGE CORPORATION, AMERICAN TITLE & SETTLEMENT, LLC, AND CHICAGO TITLE INSURANCE COMPANY, DEFENDANTS, AND JANET RINALDI AND JANET RINALDI ATTORNEY AT LAW, LLC, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3210-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 19, 2011

Before Judges Sabatino and Fasciale.

Plaintiffs Eugene Kirby and Elizabeth Kirby appeal from an order granting summary judgment in favor of defendants Janet Rinaldi (Rinaldi) and her law firm, Janet Rinaldi, Attorney at Law, LLC (defendants), dismissing all claims of legal malpractice and fraud against defendants, and an order denying plaintiffs' cross-motion for partial summary judgment. We affirm.

On May 22, 2006, plaintiffs refinanced their home without retaining legal representation. The refinance closing occurred at plaintiffs' home and was conducted by a representative of the mortgage company, U.S. Mortgage Corporation. At the closing, Elizabeth Kirby signed refinance documents. Janet Rinaldi was not present.

American Title & Settlement, LLC (American Title) acted as settlement agent, created a HUD settlement statement, received wire transfer funds, and handled the disbursements. At the time, American Title employed Rinaldi and her law firm to generate new business. Rinaldi also performed notary services for American Title, but did not have check signing authority.

At some point after the closing, Rinaldi allowed a notary employed by American Title to use her attorney signature stamp to notarize the disbursement of settlement funds. The notary affixed the signature stamp on the HUD document with limited permission to verify the disbursements.

Later, plaintiffs learned that their refinance terms, including taxes and interest, were not what they had expected. On September 21, 2009, they filed an eight-count second amended complaint against Chicago Title Insurance Company, Chase Home Finance, LLC, U.S. Mortgage, American Title, and Rinaldi and her law firm. Generally, plaintiffs alleged that they did not understand the details of their refinance agreement due to procedural and substantive fraud or irregularity in the closing and closing documents. Against Rinaldi and her law firm, plaintiffs alleged legal malpractice and fraud.*fn1

In her deposition, Rinaldi testified that she never communicated or met with the Kirbys, agreed to represent them, entered a retainer agreement with them, or received an attorney review fee in connection with their refinance. She also testified that she never saw Elizabeth Kirby sign the HUD document, and that the document "was not stamped as a witness to her signature. It was stamped to verify a true and accurate statement of the disbursements."

In her own deposition, Elizabeth Kirby testified that she had never met Rinaldi, did not know who she was, had no retainer agreement with her, and paid no retainer. Elizabeth Kirby further testified that at the time of the closing she was not represented by counsel or told that an attorney would be provided for her. Also, she admitted that several of her interrogatory answers had no factual basis for suggesting that she knew Rinaldi.*fn2

In April 2011, defendants moved for summary judgment, and plaintiffs cross-moved for partial summary judgment. On May 13, 2011, the motion judge conducted oral argument and issued an oral opinion. By two separate orders on that same date, the judge granted defendants' summary judgment motion, dismissed with prejudice all plaintiffs' claims against defendants, and denied plaintiffs' partial summary judgment motion. This appeal followed.

On appeal, plaintiffs contend that the judge erred by granting defendants summary judgment because a factual dispute exists as to whether there was an attorney-client relationship.

They argue that Elizabeth Kirby's signature on the HUD document indicates their reliance upon Rinaldi, and that Rinaldi's signature stamp on the HUD document and the stamp's identification of Rinaldi as an attorney at law also created such ...


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