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Estate of Russick v. Koenig

United States District Court, D. New Jersey

September 26, 2014

ESTATE OF JAMES A. RUSSICK, GAIL RUSSICK, Executrix on behalf of the Estate of James A. Russick, and GAIL RUSSICK, individually, Plaintiffs,




NOEL L. HILLMAN, District Judge.

In this case that concerns an unpaid loan, presently before the Court is the motion of defendant, Tom Koenig, to dismiss plaintiffs' claims against him for lack of personal jurisdiction. For the reasons expressed below, defendant's motion will be denied without prejudice, and the parties will be directed to undertake a limited period of jurisdictional discovery.


Plaintiffs, the estate of James A. Russick and Mr. Russick's wife, Gail Russick, who is the executrix of her late husband's estate, filed suit against Tom and Anna Marie Koenig, husband and wife, jointly, severally, and in the alternative, regarding a $188, 000 loan the Russicks provided to the Koenigs in September 2007. According to plaintiffs' complaint, the Koenigs required additional funding to complete the new house they were building in Tennessee, and they requested the loan from the Russicks at the Russick's home in Oaklyn, New Jersey. In order to provide the Koenigs with the requested amount of $188, 000, the Russicks obtained a home equity loan on their Oaklyn, New Jersey home. The Koenigs received four checks in various amounts from September 28, 2007 through November 19, 2007 totaling $188, 000.

In December 2007, Mr. Koenig signed a notarized note attesting to the loan, and at some point the Koenigs began making monthly payments of interest only to the Russicks, and they continued to do so until August 2010. On January 20, 2009, Mr. Russick died, and plaintiffs claim that from that point on, the Koenigs' payments became irregular until they defaulted on the loan. In September, October, and November 2009, the estate and Mrs. Russick demanded payment of the loan in full and any accrued interest, and repeated demands have been made since then. Plaintiffs claim that the defendants have refused to pay. Based on these allegations, plaintiffs have lodged claims for breach of contract, promissory estoppel, unjust enrichment, and "fraud based on bad-faith promise."

Defendant Tom Koenig has filed a motion to dismiss plaintiffs' complaint against him pursuant to Federal Civil Procedure Rule 12(b)(2) for lack of personal jurisdiction, and plaintiffs have opposed Mr. Koenig's motion. In the motion papers, it is revealed that Anna Marie Koenig is the daughter of the Russicks, and Tom Koenig is Anna Marie's husband. Mr. Koenig, however, disavows any involvement with the loan. In his affidavit in support of his motion, Mr. Koenig states that his wife unilaterally negotiated and obtained the loan without his knowledge, he has never received any of the money from the loan, the money was never deposited into any bank accounts over which he was an authorized user, he never spent the money, and he never made any payments. Mr. Koenig further states:

The first time that I learned that the Loan had been requested or made was in December 2007, after the Loan had apparently already been made and fully funded. At that time, my wife told me that she had requested and obtained the Loan from her parents and had used the Loan proceeds to pay the contractor constructing our home. She also informed me that she had been making interest payments to her parents on the Loan. My wife further informed me that Mr. Russick desired for us to send him something in writing acknowledging that we had taken advantage of the Loan. Aside from these representations by my wife, I had and continue to have no actual knowledge that the Loan was requested, made, or funded.
In December 2007, Mr. Russick unilaterally contacted me via telephone and requested that my wife and I send him something in writing acknowledging that we had taken advantage of the Loan. In response to Mr. Russick's request, and in reliance upon my wife's representations that the Loan had been requested, made, and funded, I sent Mr. Russick a document acknowledging that my wife and I had taken advantage of a $188, 000.00 loan from Mr. Russick and his wife. However, at the time I sent Mr. Russick that document, I still had no actual knowledge that the Loan had been requested, made, or funded. Rather, the only information I had was the prior representations made to me by my wife.
Prior to Mr. Russick's unilateral phone call to me in December 2007 requesting written acknowledgment that my wife and I had taken advantage of the Loan, I never communicated with him or Mrs. Russick about the Loan.

(Def. Ex. A, ΒΆΒΆ 10-12, Docket No. 7-1.)

Based on Mr. Koenig's affidavit regarding his lack of involvement with the loan - and correspondingly his lack of involvement with New Jersey - other than to send the Russicks the December 2007 document acknowledging the loan, Mr. Koenig argues that this Court cannot exercise personal jurisdiction over him to resolve plaintiffs' claims.

In opposition to Mr. Koenig's motion, plaintiffs have submitted an affidavit from Gail Russick, wherein she "cannot believe" that Mr. Koenig would disavow any knowledge of the loan. She states that Mr. Koenig made several telephone calls to Mr. Russick, and she participated in one of the calls, which lasted more than an hour. In addition to the December 2007 notarized document from Mr. Koenig to the Russicks, Mrs. Russick attaches an August 2009 letter from her financial advisor, Jack Carini, to Mr. Koenig. In that letter, Mr. Carini states that in the process of assisting Mrs. Russick with the estate, he

discovered a signed affidavit with your signature stating a loan transaction between you and James & Gail Russick. This has become a problem for Gail due to the changes she would like to make in her life at this time. The home has a loan/lien against it and it must be removed so the personal ...

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