United States District Court, D. New Jersey
DEREK SCHAFFER, Individually and on Behalf of Home Mortgage Corporation, and CARL DIANTONIO, Individually and on Behalf of Home Mortgage Corporation, Plaintiffs,
HOME MORTGAGE CORPORATION, MARVIN J. ZAGORIA, DONALD E. SISSON, JOEL S. ARDGETTI, ESQ., LARRY WARNER, ROBIN HOLLAND, JANIS KOPLIN ZAGORIA, and PNC BANK, Defendants. DONALD E. SISSON, Counter-Claimant,
DEREK SCHAFFER and CARL DIANTONIO, Counter-Defendants.
HENRY MARIANI MATTHEW R. MCCRINK MCCRINK, KEHLER &
MCCRINK On behalf of Plaintiffs/Counter-Defendants
DOUGLAS F. JOHNSON EARP COHN P.C. On behalf of Defendant
Janis Koplin Zagoria
E. SISSON Appearing pro se
A. KASSIS SCHENCK, PRICE, SMITH, & KING, LLP On behalf of
Defendant PNC Bank
L. HILLMAN, U.S.D.J.
matter concerns claims by Plaintiffs that Defendants
conspired to steal or convert Plaintiffs' funds deposited
in an escrow account at PNC Bank intended as a good faith
deposit for Plaintiffs' purchase of Home Mortgage
Corporation. Defendants PNC Bank and Donald Sisson have moved
to dismiss Plaintiffs' claims.
reasons expressed below, Defendants' motions will be
granted in part and denied in part. Plaintiffs shall be afforded
thirty days to move for leave to file a third amended
to Plaintiffs' second amended complaint,  in early 2016,
Plaintiffs Derek Schaffer and Carl DiAntonio entered into an
agreement to purchase Defendant Home Mortgage Corporation
from Defendants Donald Sisson and Marvin Zagoria. On March
10, 2016, Schaffer, DiAntonio, Sisson, and Zagoria went to a
PNC Bank branch in Georgia. Schaffer and DiAntonio became
signatories on a new account in the name of Home Mortgage
Corporation (apparently called the “HMC-North
account”), and deposited $100, 000 into the account as
a good faith deposit to be held in escrow as part of the
agreement between the parties to purchase Home Mortgage
Corporation. A PNC Bank employee, Evelyn A. Stevenson,
facilitated the transaction.
left the bank, but they contend that Sisson and Zagoria
stayed behind. Plaintiffs claim that without their knowledge
and permission, Stevenson added Sisson and Zagoria to the new
HMC-North account as co-signatories. Plaintiffs relate that
Sisson and Zagoria maintained a separate bank account for
Home Mortgage Corporation at PNC Bank (referred to as the
“HMC- because the Court will dismiss Plaintiffs'
RICO claim, the parties' citizenships must be properly
averred to confirm that this Court may exercise diversity
jurisdiction. The parties will be directed, therefore, to
file a Joint Certification of the Citizenship of the Parties
within 10 days of the date of this Opinion and accompanying
Order. See South account”).
returned to New Jersey, and in that same month of March 2016,
obtained a license for Home Mortgage Corporation through the
New Jersey Department of Banking, and opened a branch in
Voorhees, New Jersey. Plaintiffs claim that they transacted
mortgage business until December 2016.
December 16, 2016, Plaintiffs allege that they discovered
various fraudulent activities by Sisson and Zagoria when the
IRS froze the HMC-North and HMC-South bank accounts.
Plaintiffs claim that Sisson and Zagoria improperly used $92,
000 of the $100, 000 that was supposed to be held in escrow
as good faith money for the sale of Home Mortgage
Corporation. Plaintiffs also allege that Defendants failed to
pay them over $62, 800 in mortgage settlement funds, fees,
and other charges.
addition to the money Defendants allegedly unlawfully
converted, Plaintiffs claim that Defendants further defrauded
Plaintiffs by failing to add Plaintiffs' names as
corporate officers to Home Mortgage Corporation's
corporate documents or to register the corporate documents
with the Georgia Secretary of State, even though it was
understood between the parties when they entered into the
purchase agreement that Plaintiffs would be named as
corporate officers to Home Mortgage Corporation as part of
the purchase agreement.
have asserted fourteen counts in their complaint as follows:
Count I - Fraud/Fraudulent Inducement against all Defendants;
Count II - Breach of Contract against all Defendants;
Count III - Breach of Covenant of Good Faith and Fair Dealing
against all Defendants;
Count IV - Conversion against all Defendants;
Count V - Intentional Misrepresentation against all
Count VI - Negligent Misrepresentation against all
Count VII - Disgorgement against all Defendants except PNC
Count VIII - Breach of Fiduciary Duty against all Defendants;
Count IX - Accounting against all Defendants except PNC Bank;
Count X - Civil Conspiracy to Commit Fraud against all
Count XI - Imposition of Constructive Trust against all
Defendants except for PNC Bank;
Count XII - Negligence against all Defendants;
Count XIII - Breach of Fiduciary Duty against PNC ...