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Brown v. Lopez

Superior Court of New Jersey, Appellate Division

August 2, 2013

KERYN BROWN, Plaintiff-Appellant,
KERYN BROWN, Defendant-Appellant.


Argued October 23, 2012

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2425-09.

Frank J. Nostrame argued the cause for appellant.

Meredith Kaplan Stoma argued the cause for respondent Stanley M. Varon (Morgan Melhuish Abrutyn, attorneys; Ms. Stoma, of counsel; Jeffrey S. Leonard, on the brief).

Iram P. Valentin argued the cause for respondent William R. Lindsley (Kaufman Dolowich Voluck & Gonzo, LLP, attorneys; Mr. Valentin, of counsel and on the brief; Edward Patrick Abbott, on the brief).

Thomas J. Wall argued the cause for respondents Steve Caraccio, Louis Velasco and Jorge Lopez.

Before Judges Messano and Kennedy.


Plaintiff appeals from orders for summary judgment dismissing her complaint against defendants, as well as an order for summary judgment entered against her in a consolidated matter for possession of her former home and holding her responsible to pay $32, 000 in "rent" on the property. Plaintiff argues that material issues of fact existed which should have precluded the grant of summary judgment.

Plaintiff owned a two-family home in Jersey City for many years. In 2005, the mortgagee obtained a judgment of foreclosure against the property. Plaintiff thereafter listed the property for sale and hired defendant attorney Stanley M. Varon (Varon) to represent her. In February 2007, defendant realtor Jorge Lopez (Lopez) acquired title to the property after entering into a series of agreements with plaintiff. At that time, Varon represented plaintiff and defendant attorney William R. Lindsley (Lindsley) represented Lopez. Prior to the closing of title, plaintiff gave mortgages on the property to Lopez's associates, defendants Steven Carracio (Carracio) and Luis Velasco (Velasco), to secure pre-closing loans they allegedly made to plaintiff to finance renovations and to bring the mortgage up to date. At closing, plaintiff was given a use and occupancy agreement to sign in order to remain on the property. Lopez filed a complaint for possession of the property after plaintiff fell behind in her "use and occupancy" payments.

Thereafter, plaintiff filed a complaint in the Law Division alleging that Lopez acquired title through fraudulent representations (count one) and violated the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to —184 (count two); that Varon was negligent and caused her to "los[e] title to her home for less than adequate compensation" (count four); that Lindsley, as "settlement agent" at closing, paid "excessive, unjustified and inappropriate" charges from funds that were otherwise due to plaintiff (count five); and that Carracio and Velasco received money at the closing to pay off mortgages for which neither paid any consideration, thereby violating the CFA (count six).

As noted above, Lopez had filed a complaint against plaintiff in the landlord/tenant section of the Special Civil Part in which he alleged that she owed $5700 in back rent as of May 1, 2009. Plaintiff successfully moved to transfer the Special Civil Part action to the Law Division, where the two actions were then consolidated.


Our review of a motion court order granting or denying summary judgment is de novo, and we apply the same standard as the motion court in determining whether there are any genuinely disputed issues of material fact sufficient to warrant resolution of the disputed issues by the trier of fact. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Our analysis requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to material facts, and then we decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J.Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence "in the light most favorable to the part[y] opposing summary judgment." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no special deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Following are the salient facts viewed in a light most favorable to plaintiff. Plaintiff and her husband purchased the property on July 15, 1981. She obtained sole title to the property in 1998 as part of a divorce settlement. Thereafter, plaintiff ...

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