United States District Court, D. New Jersey
ESTATE OF JAMES A. RUSSICK, GAIL RUSSICK, EXECUTRIX, GAIL RUSSICK, INDIVIDUALLY, Plaintiffs,
TOM KOENIG and ANNA MARIE KOENIG, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, Defendants.
RICHARD T FAUNTLEROY RICHARD T. FAUNTLEROY, P.C. SOUTH MAIN
ST. PLEASANTVILLE, On behalf of Plaintiffs
BENJAMIN A. ANDERSEN POWELL TRACHTMAN, P.C., On behalf of
Defendant Tom Koenig
L. HILLMAN, U.S.D.J.
before the Court is the motion of Defendant Tom Koenig for
summary judgment in his favor on Plaintiffs' claim that
he is responsible for an unpaid loan. For the reasons
expressed below, Defendant's motion will be denied.
Tom Koenig (“Koenig”) and Anna Marie Koenig
(collectively “the Koenigs”), as husband and
wife, obtained $188, 000.00 from Anna Marie Koenig's
parents in New Jersey in order to build a home in
Tennessee. Anna Marie Koenig's father passed
away, and her mother, Gail Russick, as executrix of James
Russick's estate, filed suit against the
Koenigs to recover the balance of what she
considers to be a loan, which was financed by a home equity
loan on the Russick's New Jersey home.
Koenig has moved for summary judgment in his favor, arguing
that not only did he have no involvement in obtaining the
money from the Russicks, discovery has revealed that Mr.
Russick unilaterally gifted his daughter the money without
any expectation of repayment, other than his daughter's
payment of the monthly interest. Koenig further contends that
when Anna Marie Koenig stopped paying the interest payments,
her parents never sought to enforce the monthly interest
payments, which evidences the purported loan was actually a
gift, and otherwise constitutes a waiver of any claim to
subsequent interest payments.
contrast to Tom Koenig's position, Plaintiffs contend
that disputed issues of material fact preclude summary
judgment on Plaintiffs' claim that the money was a loan
and not a gift, and that there was no waiver of
Plaintiffs' contractual rights against the
defendants. To support their position, Plaintiffs
point to Anna Marie Koenig's testimony about her
conversations with her father and her husband about the loan
and intentions that the $188, 000 was to be repaid, as well
as Gail Russick's understanding of the agreement.
Plaintiffs also show the monthly payments of the loan
interest to James Russick as part of the terms of the loan,
and Tom Koenig's three written statements acknowledging
the loan and his and his wife's obligation to repay it.
Subject matter jurisdiction
Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1332 because there is complete diversity of
citizenship between the parties and the amount in controversy
exceeds $75, 000. Plaintiffs, Gail Russick and her late
husband James Russick, are citizens of New Jersey, see 28
U.S.C. § 1332(c)(2) (the legal representative of the
estate of a decedent is deemed to be a citizen of the same
state as the decedent), and defendants Anna Marie Koenig and
Tom Koenig are citizens of Tennessee.
Standard for Summary Judgment
judgment is appropriate where the Court is satisfied that the
materials in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory
answers, demonstrate 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 (1986); Fed.R.Civ.P. 56(a).
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 (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. Industrial Crating Co.,
358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson,
477 U.S. at 255).
the moving party has the burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). 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 (3d Cir.
regard to the issue of whether the $188, 000 was a loan or a
gift, there are three elements of a valid and irrevocable
gift: (1) actual or constructive delivery; (2) donative
intent; and (3) acceptance. Bhagat v. Bhagat, 84
A.3d 583, 593 (N.J. 2014) (citations omitted). The burden of
proving an inter vivos gift is on the party who asserts the
claim, and the recipient must show by “clear, cogent
and persuasive” evidence that the donor intended to
make a gift. Id. at 594 (citations omitted). The
exception to this burden is when the transfer is from a
parent to a child. In that case, a presumption arises that
the transfer is a gift, and the initial burden of proof on
the party claiming a gift is slight. Id. (citations
parent-child gift presumption is rebuttable by evidence of a
contrary intent. Such evidence must meet the clear and
convincing evidence standard of proof to rebut the
presumption, and it must be “antecedent to,
contemporaneous with, or immediately following the
transfer.” Id. at 597. “In addition, a
party seeking to rebut the presumption may also adduce ...