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Hibbert v. Bellmawr Park Mut. Hous. Corp.

United States District Court, D. New Jersey

March 28, 2013

MARK E. HIBBERT, Plaintiff,

Page 566


BARRY J. BERAN, ESQUIRE, BERAN & BERAN, ESQS., CHERRY HILL, NJ, Attorney for Plaintiff Mark E. Hibbert, Sr.

WILLIAM J. MARTIN, ESQUIRE, MARTIN, GUNN & MARTIN, WESTMONT, NJ, Attorney for Defendants Bellmawr Park Mutual Housing Corporation and Pat Levins.



Page 567

NOEL L. HILLMAN, United States District Judge.

Currently pending before the Court is the Motion for Summary Judgment of Defendants Bellmawr Park Mutual Housing Corporation (" Bellmawr Park" ), Pat Levins, and Bob McCormick [Docket No. 31.] For the reasons that follow, the Motion will be granted in part and denied in part.


This matter involves a discrimination dispute between Plaintiff Mark E. Hibbert and a non-profit corporation that provides low-cost housing in southern New Jersey, Defendant Bellmawr Park. Hibbert is deaf and unable to communicate, except through sign language.[1] (Defs.' Mot. Summ. J., Ex. C, Dep. of Mark Hibbert, Sr. (" Hibbert Dep." ) 112:11-13, 113:9-10.)

Hibbert has been a sporadic resident of Bellmawr Park since childhood. Between 1964 and 1979, he lived with his parents in a residence in the complex.[2] (Id. at 62:20-25, 63:1.) In 2003, Hibbert's father gave him a house in Bellmawr Park, located at 506 West Browning Road, that formerly belonged to Hibbert's grandmother. (Id. at 65:23-66:3.) According to Plaintiff, his mother and aunt accompanied him to a meeting with Bellmawr Park office manager Patricia Levins[3] to sign the Mutual Ownership Contract for ownership of the 506 West Browning residence. (Id. at 67:16-17, 70:15-71:2.) Plaintiff signed the contract that day, but avers that he did so at the behest of his family and did not understand what occurred since no sign language interpreter was present during the meeting. (Id. at 66:6-67:22, 70:15-71:9; Defs.' Mot. Summ. J., Ex. E.) Upon signing the contract, Hibbert moved into the residence. In 2005, he built an addition and added several improvements to the property.[4] (Hibbert Dep. 17:13-18; Defs.' Mot. Summ. J., Ex. J.)

In 2009, Plaintiff expressed an intent to sell the house and move to Maine with his wife, who is also deaf. Plaintiff met with the Bellmawr Park Board of Trustees on December 1, 2009 to discuss his intent to sell his home and terminate his membership in Bellmawr Park. (Defs.' Mot. Summ. J., Exs. F & I; Hibbert Dep. 111:13-25, 153:3-17.) Hibbert's teenage son, Mark Hibbert Jr. (" Mark Jr." ), served some role as his interpreter during the meeting. (Id. at 121:13-122:7, 175:14-23; Ex. F.) Defendant Levins and several other members of

Page 568

the Board also attended the meeting. (Hibbert Dep. 122:24-25; Defs.' Mot. Summ. J., Ex. D, Dep. of Patricia Levins (" Levins Dep." ) 50: 8-18.) According to Plaintiff, he requested that a sign language interpreter be present, but one was not provided. (Hibbert Dep. 71:10-23; 167:16-23, 175:5-13.) As a result, Hibbert maintains that he is unsure of what actually occurred at the meeting because he could not hear and was unable to understand. (Id. at 122:13-124:9.) Moreover, he contends that he never made a firm commitment to sell his interest in his property and move to Maine. (Id. 149:18-150:19; 164:9-11.)

Following the December 2009 meeting, Defendant Robert McCormick was contacted by Levins regarding the 506 West Browning property and told him that Hibbert wanted to sell his home and its improvements. (Id. at 154:7-11; Defs.' Mot. Summ. J., Ex. L, Dep. of Robert McCormick (" McCormick Dep." ) 12:12-25.) McCormick was interested in purchasing a unit in Bellmawr Park because his daughter lived there, and he had previously submitted a housing application to the Board several years before. (Id. at 13:6-14:6.) Following this initial contact, McCormick and Hibbert engaged in some form of communications regarding the sale of the property over the course of several months.[5] (Id. at 15:17-17:11.) During these conversations, Mark Jr., at the time a minor, served as the intermediary and interpreter. (Hibbert Dep. 177:12-20, 179:16-20; McCormick Dep. 15:21-16:7; Defs.' Mot. Summ. J., Ex. H, Dep. of Mark Hibbert, Jr. (" Mark Jr. Dep." ) 33:20-34:9.) In this role, Mark Jr. relayed information between McCormick and his father, and met with McCormick in person to discuss the sale. (Id.; McCormick Dep. 20:25-21:11, 27:15-29:18.) According to Defendants, during this time, Hibbert repeatedly changed his mind about whether he wished to sell the property. (Mark Jr. Dep. 28:24-25, 37:12-18, 47:10-19; McCormick Dep. 16:11-21:12.)

Whatever his intentions regarding the Bellmawr property, it appears uncontroverted that Hibbert inquired about properties in Maine. (Hibbert Dep. 53:5-10.) In February of 2010, he applied for a loan in the amount of $124,000 from Peoples United Bank. (Id. at 45:24-46:25, 47:3-13, 53:11-54:6; Defs.' Mot. Summ. J., Ex. Q.) On the loan application, Hibbert listed his contact address as " Maine, TBD." (Id.) In early March of 2010, the Bank denied the request for the loan. (Id.)

According to Mark Jr., on March 5, 2010, Hibbert finally made up his mind to sell the property, and Mark Jr. contacted Levins that day to inform her of his father's intent to sell and vacate the premises. (Mark Jr. Dep. 34:13-25, 50:3-17, 57:23-58:5.) Although the date of his signature is in contention, at some point Hibbert had signed a " move-out form" which indicated that he was moving and provided an address in Wells, Maine for future contact purposes. (Defs.' Mot. Summ. J., Exs. N & O.) On March 7, 2010, Hibbert received a check in the amount of $20,000 which the defendants connect to the sale of the property. (Hibbert Dep. 136:23-138:15.) Hibbert says he did not know what the check was for, that it was handed to him in an envelope on the day he moved out, and that he had neither negotiated nor entered into any agreement to sell his interest in the property. (Id. at 162:18-25.) He acknowledges that he deposited the check into his bank account on March 8, 2010, but states that he did so for " safekeeping." (Id. at 137:21-25, 139:14-17,

Page 569

151:10-13.) There are no documents in the record establishing the purpose of the check, or any other documents memorializing the purported sale of Hibbert's interest in the property.

On March 7, 2010, Plaintiff and his wife moved out of 506 West Browning. Plaintiff hired a moving truck to assist with the move and spent the night packing. (Id. at 139:22-140:2.) Approximately eleven individuals were present during the move, including Levins and several members of Plaintiff's family. (Id. at 140:10-21; Mark Jr. Dep. 58:14-25; Defs.' Mot. Summ. J., Ex. R, Dep. of Gaudencio G. Gonzales (" Gonzales Dep." ) 16:18-17:25.) According to Levins, all of Plaintiff's belongings were packed and ready to move out that morning, and she communicated with him during the move primarily through handwritten notes. (Levins Dep. 78:1-81:12; Defs.' Mot. Summ. J., Ex. S.)

Hibbert claims that he was unlawfully evicted and forced to move out of his home on March 7, 2010. (Hibbert Dep. 41:20-25, 63:13-16, 141:19-25.) More specifically, he believes that Levins, McCormick, and Mark Jr. took advantage of his disability and engaged in some sort of scheme to acquire his property. He points to the hurried nature of the move, McCormick's aggressive pursuit of the property, his minor son's contacts with the Defendants, the overall lack of communication and confusion stemming from his disability, the unexplained check provided just two days before he vacated the premises in an amount below the value of the improvements, and the absence of any documents memorialized a conveyance of an interest in the property as evidence that Defendants took advantage of him and forced him from the property.

Hibbert filed a complaint against Bellmawr Park, Levins, and McCormick on September 17, 2010 in New Jersey state court. Plaintiff's pleading alleged violations of the federal Americans with Disabilities Act (" ADA" ) and Fair Housing Act (" FHA" ), and Defendants therefore timely removed the matter to this Court on October 18, 2010 on the basis of federal question jurisdiction. [Docket No. 1.] Plaintiff subsequently filed an amended complaint on April 24, 2012, in which he asserted the following counts against Defendants: (1) breach of contract; (2) violation of the New Jersey Law Against Discrimination (" NJLAD" ), N.J.S.A § 10:5-12 et seq.; (3) violation of the New Jersey Fair Eviction Notice Act, N.J.S.A. § 2A:42-10.15 et seq.; (4) violation of the ADA, 42 U.S.C. § 12101 et seq.; (5) violation of the New Jersey Statute of Frauds, N.J.S.A. § 25:1-5 et seq.; and (6) violation of the FHA, 42 U.S.C. § 3601 et seq. [Docket No. 27.] On July 16, 2012, Defendants Bellmawr Park and Levins moved for summary judgment on the entirety of Plaintiff's amended complaint. [Docket No. 31.] Defendant McCormick, appearing pro se, filed a letter with the Court on September 10, 2012. [Docket No. 34.] Plaintiff filed a Response in Opposition on September 21, 2012 [Docket No. 36], to which Defendants Bellmawr Park and Levins replied on September 28, 2012. [Docket No. 37.] Accordingly, this matter is now ripe for judicial consideration.


Summary judgment is appropriate where the Court is satisfied that " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c).

Page 570

An issue is " genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is " material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence " is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232, 43 V.I. 361 (3d Cir. 2001).


Prior to reaching the merits of Defendants' Motion for Summary Judgment, the Court must first address the presence of Defendant McCormick in the instant matter.

While Defendants Bellmawr Park and Levins are represented by the law firm of Martin, Gunn, & Martin, Defendant McCormick has opted to appear pro se in this litigation. On July 16, 2012, Bellmawr Park and Levins filed the summary judgment motion that is presently before the Court for disposition, requesting judgment in their favor. Defendant McCormick was not a party to this Motion, nor did Bellmawr Park or Levins request judgment to be entered in his favor as well. On September 10, 2012, however, Mr. McCormick wrote a letter to the Court, which states as follows:

Because I am not represented by an attorney I thought I should give you my side of the case. . . . After reading the plaintiffs [ sic ] deposition I found many lies. He claims he cannot communicate or understand but when we went to the house he was able to answer all our questions by reading our lips and answer by jotting down notes to us. I feel there was no wrongdoing on our part. Mark Hibbert made a decision that turned out bad for him. But it was his decision. So he wants us to pay for his mistake. I've read the Motion for Summary Judgement [ sic ] and agree with Bellmawr Parks [ sic ] attorneys. Mark Hibbert was never forced to leave his home. He made the decision to move to Maine on his own. To the best of my knowledge everything [Bellmawr Park] has said in the Motion for Summary Judgement [ sic ] is true. We agree and hope this ends soon so we can put this behind us and can finally enjoy our home.

[Docket No. 34.][6]

The Court is cognizant of the fact that McCormick is a pro se litigant, and that

Page 571

the submissions of such parties are afforded a more liberal reading and interpretation. See Johnson v. City of A. City, No.Civ.A.10-4386, at *14-15 n.6 (D.N.J. Dec. 27, 2012) (internal citations omitted). The Supreme Court has previously recognized, however, that " we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. . . . '[I]n the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.'" McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993) (quoting Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980)).

Thus, despite appearing pro se, McCormick must nonetheless adhere to the requirements of the applicable Federal Civil Rules, which in this case is Rule 56 governing summary judgment. Rule 56 provides that:

A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment 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. . . . A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56. While McCormick represents in his letter that he agrees with the arguments set forth in the other Defendants' summary judgment motion, he has not shown the Court how these arguments apply to him. Indeed, other than portraying his own " side of the story" in his letter, McCormick has not presented any evidence of his own to counter Plaintiff's claims or show that there is no genuine issue of material fact that judgment should be entered in his favor. Further, the record does not indicate that either Bellmawr Park or Levins have consented to McCormick joining in their Motion for Summary Judgment.

As such, while the Court is sympathetic to the fact that McCormick may be unfamiliar with the law and civil motions practice of this District, it is entirely his decision to represent himself and he must nonetheless adhere to the procedural rules of this Court in doing so. Accordingly, to the extent Defendant McCormick ...

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