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Lynn Friedman and Kim Phillip Friedman v. Bank of America

March 26, 2012

LYNN FRIEDMAN AND KIM PHILLIP FRIEDMAN, PLAINTIFFS,
v.
BANK OF AMERICA, N.A., FKA FLEET BANK, N.A., FKA SUMMIT BANK OF NEW JERSEY DEFENDANTS.



The opinion of the court was delivered by: Simandle, Chief Judge:

OPINION

I. INTRODUCTION

This matter is before the Court on the motion of Defendant Bank of America, N.A., fka Fleet Bank, N.A., fka Summit Bank of New Jersey ("Defendant" or "Bank of America") to exclude the expert report of Dennis F. Judge [Docket Item 52] and Defendant's motion for summary judgment dismissing the complaint [Docket Item 53]. Plaintiffs Lynn Friedman and Kim Phillip Friedman ("Plaintiffs") filed opposition to both motions.

The instant action arises out of the Plaintiffs' failed attempt to refinance their home and obtain cash proceeds from the equity in their property. The Plaintiffs allege their inability to refinance was caused by the Defendant Bank of America's failure to provide the Plaintiffs with a payoff statement on their defaulted mortgage. To support their claims, the Plaintiffs have submitted the expert report of Dennis F. Judge.

The Defendants argue that Plaintiffs' expert Dennis F. Judge should be precluded because his opinion is not supported by good grounds and he is not qualified. Mr. Judge is offered by the Plaintiffs as an expert to testify regarding the lost profits of Plaintiff Kim Phillip Friedman's prospective business ventures which were to be funded from the cash equity obtained through the refinancing. Mr. Judge's opinion is limited to the damages sustained by the Plaintiffs as a result of the Defendant's alleged failure to provide the Plaintiffs with a payoff statement on their defaulted mortgage loan.

The Defendant also argues that summary judgment is appropriate and the Plaintiffs' complaint should be dismissed.

The Plaintiffs allege four causes of action against the Defendant including breach of contract, tortious interference, actual fraud, and consumer fraud in violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1, et seq. In addition to the inability to show damages, the Defendant argues that the Plaintiffs have failed to satisfy essential elements of each of their claims.

For the reasons discussed herein, the court will grant the Defendant's motion for summary judgment as the Plaintiffs have failed to provide evidence to establish essential elements of their claims. The court will dismiss the Defendant's motion to preclude Plaintiffs' expert as moot since the issue of Plaintiffs' alleged damages is not relevant to the court's decision to grant the Defendant's motion for summary judgment and dismiss the Plaintiffs' complaint.

II. BACKGROUND

Plaintiffs Kim Philip Friedman and Lynn Friedman, husband and wife, took out a loan in 1986 to finance the purchase of a home at 33 Woodshire Drive, Sicklerville, NJ 08081, giving a mortgage to another lender to secure the loan. (Wojtylak Cert., Ex. C., Deposition of Kim Philip Friedman, "K. Friedman Dep." at 39:16-21.) In 1989, Plaintiff Kim Friedman operated a window and siding business. (K. Friedman Dep. 135:2-136:25.) This business was not profitable, and was the primary catalyst behind Mr. Friedman declaring a personal bankruptcy in 1989. (K. Friedman Dep. 135:2-136:25.)

Before Mr. Friedman filed his bankruptcy action in 1989, he transferred his ownership interest in the Woodshire Drive residence to his wife. (K. Friedman Dep. 40:12-25.) Mr. Friedman testified that this transfer was made in order to help with estate planning. (K. Friedman Dep. 40:12-41:7.)

In 1999, ten years after filing his bankruptcy action, Mr. Friedman sought to refinance the mortgage on the Woodshire Drive residence despite the fact that he was no longer on the deed. Mr. Friedman applied to Summit Bank for this second mortgage in order to access the equity then accumulated in the home in order to obtain cash to pay debts and start a new business. (K. Friedman Dep. 60:8-63:10.)

Initially, the Friedmans sought to accept the 1999 loan jointly and originally they both signed documents connected with the mortgage. Subsequently, Mrs. Friedman had reservations about taking out another loan, and according to her husband, eventually told her husband she did not want to be involved in the second mortgage. Mr. Friedman then testified that he took the loan documents bearing his wife's signature and put them in storage in the attic. (K. Friedman Dep. 58:12-60:7.)

Summit Bank approved the second mortgage and on August 5, 1999, and a mortgage in favor of Summit Bank in the amount of $128,774.00 was recorded by the Camden County Clerk's Office.

(Def.'s Ex. B.) The recorded mortgage bears two signatures, one for Kim Phillip Friedman and one for Lynn Friedman. The Plaintiffs dispute the authenticity of Lynn Friedman's signature and allege the signature was forged by the Defendant. (Sec. Am. Compl. ¶¶ 23-29.) The Plaintiffs also allege that the date stamp on the recorded mortgage seems to have been tampered with. (K. Friedman Dep. 54:22-55:14.)

As a result of the 1999 mortgage, the Plaintiffs received $128,000 in cash from the refinance. (Def.'s Ex. C; K. Friedman Dep. 62:23-63:5.) In 2001, two years after receiving the $128,000 in cash from Summit Bank, Mr. Friedman again filed for bankruptcy, this time individually without Mrs. Friedman. (Def.'s Ex. E.) The 2001 Chapter 13 Plan shows gambling losses and significant credit card debt. (Def.'s Ex. E.) Schedule D to the 2001 Chapter 13 Plan lists Summit Bank as the holder of a mortgage on the Woodshire Drive property, while Schedule H thereto lists Lynn Friedman as a co-debtor on the Summit Bank obligation. (Def.'s Ex. E.) Mr. Friedman was discharged from the 2001 Bankruptcy on May 18, 2002. (Def.'s Ex. E.)

On August 9, 2002, Fleet National Bank, as successor-in-interest to Summit Bank following a merger, instituted foreclosure proceedings in Camden County against Plaintiffs Kim and Lynn Friedman, as the signers of the 1999 note and mortgage. (Def.'s Ex. F.) The Affidavit of Service filed in connection with that foreclosure proceeding shows that the complaint was personally served upon Mr. Friedman at the Woodshire Drive residence, and that he accepted service on Mrs. Friedman's behalf. (Def.'s Ex. F.) Mr. and Mrs. Friedman did not file an Answer in the foreclosure, or otherwise take any steps to alert the court that they believed any signature had been forged on either the note or the mortgage. (Def.'s Ex. F.)

In July 2003, Mr. and Mrs. Friedman again filed jointly for bankruptcy, thus avoiding the sale of the property in foreclosure. (Def.'s Ex. G.) The Friedmans listed the Fleet foreclosure as pending in their Statement of Financial Affairs in the 2003 Bankruptcy. (Def.'s Ex. G.) At no time during the 2003 bankruptcy proceeding did the Friedmans alert the court that they believed their signatures had been forged on the note or mortgage.

On April 1, 2004, Fleet Bank merged with Bank of America, and as such, Bank of America became the owner of the Friedmans' 1999 mortgage. (Def.'s Ex. I.)

In August, 2004, while the joint bankruptcy action was still pending, Plaintiff Lynn Friedman severed her bankruptcy and it was filed as a separate individual bankruptcy action. (Def.'s Ex. H.) In Schedule D in her individual bankruptcy, Mrs. Friedman identified Fleet Bank as the holder of the first mortgage on the Woodshire Drive property. (Def.'s Ex. H.) Mrs. Friedman reviewed the Bankruptcy Petition with her attorney before it was filed. (Def.'s Ex. D, Deposition of Lynn Friedman, "L. Friedman Dep.," at 23:12-25:25.)

The Friedmans voluntarily dismissed their joint 2003 bankruptcy in November 2004. (K. Friedman Dep. 71:14-18.) Mrs. Friedman's individual bankruptcy was dismissed on February 3, 2005. (Def.'s Ex. H.)

Sometime between 2004 to 2006, the Plaintiffs attempted to refinance their mortgage in order to avoid foreclosure and start several new business ventures including a remodeling company, a romantic cruise business, and a marina. To accomplish the refinancing, the Plaintiffs contacted several lenders, including Lendingtree.com, Hudson United Bank, Allied Mortgage and Best Interest Rate Mortgage. (K. Friedman Dep. at 83:11-84:1.) In February 2005, Centex Home Equity sent Mr. Friedman a letter stating that he was conditionally pre-approved based on information that Mr. Friedman had provided. (Def.'s Ex. M.) Mr. Friedman admitted in his deposition that he had only conditional approvals from various lenders, and no final numbers were given for these prospective loans. (K. Friedman Dep. at 127:18-129:23.) There is no evidence of completed loan applications for this refinancing effort in the record before the court.

In order to successfully obtain refinancing, the Plaintiffs allege that a pay off notice from ...


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