THE PROVIDENT BANK v. ANTONUCCI et al

Filing 45

OPINION. Signed by Judge Kevin McNulty on 12/12/14. (gmd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

THE PROVIDENT BANK,

Civ. No. 12-cv-07133 (KM)

Plaintiff,
OPINION
V.

MARC ANTONUCCI and ROBERT
TARABOCCHIA,

Defendants.

MCNULTY, U.S.D.J.,
Plaintiff Provident National Bank (“Provident”) brings this action to
enforce personal guarantees. The defendants, Marc Antonucci and Robert
Tarabocchia, were the sole shareholders of Specialty Flooring Systems, Inc.
(“SFS”), a floor contracting business, and Antar Realty, L.L.C. (“Antar”), an
entity formed to purchase the property where SFS had its offices. Provident
provided two working capital loans totaling $5.5 million to SFS, and a mortga
ge
loan of approximately $1.9 million to Antar. Antonucci and Tarabocchia signed
personal guarantees in connection with those loans. In late 2011, SFS and
Antar defaulted on the three loans. Provident thereafter filed a complaint in
foreclosure in the New Jersey Superior Court Division of Chancery. The
Superior Court entered a judgment of foreelosure against SFS arid Antar, but
Provident has not recovered anything near the amount owed on the loans.
1

Provident then filed this action to enforce the personal guarantees.
Tarabocchia failed to respond to the Complaint and a default judgment was
entered against him.’ Antonucci answered and filed counterclaims asserting
several grounds for relief under contract and tort law. Now before the Court is
Provident’s motion for summary judgment on its breach of contract claims
against Antonucci, and on Antonucci’s counterclaims. For the reasons set forth
below, this Court will grant Provident’s motion.
I.

BACKGROUND

Provident is a New Jersey chartered stock capital savings bank. SFS,
before it was dissolved, was an industrial flooring contractor incorporated in
New Jersey. SFS operated out of property in South Plainfield, New Jersey, that
was owned by Antar, a New Jersey limited liability company. Antonucci, a
Pennsylvania resident, was a shareholder and officer of both SFS and Antar.
Antonucci signed guarantees of payment to secure working capital and
mortgage loans issued by Provident to SFS and Antar.
The Working Capital Loans to SFS
Provident and SFS executed a Loan and Security Agreement (the “LSA”)
on November 5, 21010. (The Provident Bank’s Statement of Material Facts Not
in Dispute, Dkt. No. 36-2, ¶5) Under the LSA, Provident agreed to lend $2
million to SFS in two separate tranches of $1 million (collectively, the “Term
Loan”), each of which bore a different interest rate. (Id. ¶7) The LSA also
provided that Provident would establish a revolving credit facility with a $3
million limit (the “Revolving Credit Loan”). (Id.

¶ 15)

That limit was later raised

to $3.5 million for the period from February 28, 2011 to August 31, 2011. (Id.
¶J19, 21) In exchange for the loans, SFS provided Provident with two notes: (1)
a Term Note evidencing its promise to repay the Term Loan by making 60
monthly payments of principal and interest (Id. ¶ 12-13); and (2) a Revolving
After the default judgment, Defendant Tarabocchia was terminated as a party to
this action (Dkt. No. 25).
1

2

Credit Note in which it agreed to repay the amount drawn from the credit
facility on a monthly basis. (Id. ¶16) To secure those payment obligations, SFS
pledged its assets—including inventory, equipment, and accounts receivable—
as collateral. In addition, Antonucci executed a Guarantee of Payment in which
he personally and unconditionally guaranteed the full payment of SFS’s debts.
(Id. ¶36) Antonucci does not deny that he executed this guarantee in favor of
Provident. On November 5, 2010, Provident advanced the required sum of $2
million under the Term Loan. By August 31, 2011, SFS had drawn nearly the
full amount of the $3.5 million Revolving Credit Loan.
The Mortgage Loan to Antar
There was a loan to Antar as well. Provident and Antar signed a Mortgage
and Security Agreement (the “MSA”) on November 5, 2010. Under the MSA,
Antar would borrow $1,893,750 (the “Mortgage Loan”) to purchase a property
in South Plainfield, New Jersey, to use as an office for SFS. (Id. ¶j26, 28)
Under the Mortgage Note, Antar would make 59 monthly payments of principal
and interest over a five-year term. (Id. ¶j29, 31) Antar granted Provident a
security interest in the mortgaged property. Antonucci provided additional
security by executing a Guarantee of Payment on the Mortgage Loan.
Antonucci does not deny that he executed this personal guarantee in favor of
Provident. The Mortgage Loan closed on November 5, 2010, and Provident
disbursed the funds to Antar.
SFS and Antar Default on the Loans
Beginning on December 1, 2010, Antar was required to make monthly
payments under the Mortgage Note. SFS was also required to make monthly
payments to Provident under the Term Note and the Revolving Credit Note. (Id.

¶f 12-13,

16, 31) By late 2011, however, SFS and Antar were short on cash. In

November 2011, SFS stopped making monthly payments on the Term Loan and
the Revolving flreit Lopn.. (1d ¶fl3, 23). In December 2011, Antar stopped
making monthly payments on the Mortgage Loan. (Id. ¶33) As a result of these
3

defaults, Provident was authorized to accelerate all three loans
and demand
payment in full plus accrued interest. (See Dkt. No. 36-5, attachments
“B,” “C,”
and “0”) In 2012, SFS went out of business. (Deposition of Marc Atonu
cci,
Dkt. No. 36-8, at 73) In May 2012, Provident sold certain assets
SFS had
pledged as collateral for the Term Loan and Revolving Credit Loan
at public
auction for $90,000. (Dkt. No. 4 1-1, at 6)
Alleged Oral Agreements with Provident
Antonucci does not deny signing the guarantees, but alleges that the
amount owed by SFS and Antar—and thus by himself as guaran
tor—was
reduced as part of an oral agreement with Provident. Antonucci
claims that
sometime in September of 2011, before the defaults occurred, he
met with
Mark Jones, a Provident vice president, to discuss the possibility
of a workout.
(Dkt. No. 36-8, at 13) At this meeting, says Antonucci, he and Jones
made an
oral agreement whereby Provident “forgave.. .the mortgage payme
nts” for an
unspecified time “to give [SFS and Antar] some cash flow and contin
ue
operations.” (Id. at 15). In the event of a default on the Mortgage
Loan,
Provident allegedly agreed to accept the proceeds from the sale of
the
mortgaged property. Antonucci was to conduct that sale in lieu of foreclo
sure.
(Id.). Finally, Provident allegedly orally agreed to waive Antonucci’s
liability
under the personal guarantee if there was a shortfall between the sale
price
and the amount of the Mortgage Loan. (Id.; see also Antonucci’s
Answer with
Affirmative Defenses and Counterclaims, Dkt. No. 5, at 9, 13) Antonu
cci
¶
admits that this alleged agreement was never reduced to writing.
Foreclosure Action
On October 5, 2012, Provident filed a complaint in foreclosure in
the
Chancery Division of the New Jersey Superior Court, Middlesex County
,
naming SFS, Antar, Antonucci, and Tarabocchia. (Id. ¶56). On May
28, 2013,
the .Superior CnurLfound

4

judgment in favor of Provident. (Id. ¶58) That court entered a judgment of
foreclosure against SFS and Antar, which ordered the following:
[T]he Plaintiff The Provident Bank is entitled to have the sum
$7,775,941.11, together with lawful interest from March 8, 2013,
until the same be paid and satisfied, together with costs of this
action to be taxed, including a counsel fee of $7,500.00, raised and
paid in the first place out of the Mortgaged Property and Collateral
described in the complaint in foreclosure.
The amount of the judgment includes both SFS’s liability under the Term Note
and Revolving Credit Note, and Antar’s liability under the Mortgage Note. (See
id. at Ex. 10) Neither SFS nor Antar has satisfied the judgment.
This Action
On November 16, 2012, having received no payments from SFS or Antar
2
in satisfaction of the judgment of the Chancery Division, Provident
commenced this federal court action to enforce Atonucci’s personal guarantees.
Count 1 of Provident’s complaint alleges that Atonucci breached his Guarantee
of Payment of the Term Note and Revolving Credit Note; Count 2 alleges that he
breached his Guarantee of Payment Qf the Mortgage Note. (P1. Compl., Dkt. No.
1, ¶1J32-42). The complaint seeks an award of $7,954,865.23, comprising the
amount of the Chancery Court judgment plus a calculation of accrued interest.
Antonucci’s answer includes four counterclaims. Count 1 of the
Counterclaim alleges that, by foreclosing on the mortgaged property and
seeking to collect on Antonucci’s guarantee on the Mortgage Note, Provident
breached its alleged oral agreement of forbearance with Antonucci. (Dkt. No. 5,
at 9-10) Count 2 asserts a claim for tortious interference with prospective
The assets SFS pledged as collateral for the Term Loan and Revolving Credit
Loan were sold for $90,000 before the Chancery Division’s judgment of foreclosure.
The Antar property—the collateral for the Mortgage Loan—had not been sold as of the
date Provident moved for summary judgment, and the Court has not been advised of
any subsequent sale.
2

Counts 3 and 4 of Provident’s Complaint assert identical claims against
Tarabocchia, which are not relevant here. (Dkt. No. 1, ¶1J43—53)
3

5

contractual relations. By instituting foreclosure proceedings, Provident
allegedly interfered with Antonucci’s efforts on behalf of Antar to sell the
mortgaged property as orally agreed. (Id. at 10) Count 3, a claim for “unjust
enrichment,” alleges that “Provident received and accepted the benefit of
Antonucci acting in good faith” without conferring an equivalent benefit of good
faith dealing in return. (Id. at 11, ¶J28-29) Count 4 seeks recovery on the
basis of quantum meruit for “valuable services, labor and/or materials” that
Antonucci allegedly provided to Provident. (Id. at 11-12)
Provident has moved for summary judgment on Counts 1 and 2 of its
Complaint and on all of Antonucci’s counterclaims.
IL

JURISDICTION

This Court has subject matter jurisdiction over this case pursuant to 28
U.S.C. § 1332(a), as there is complete diversity of citizenship between the
parties and the amount in controversy exceeds $75,000.
III.

SUMMARY JUDGMENT STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “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.”
FED. R. CIV. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000). In
deciding a motion for summary judgment, a court must construe all facts and
inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The
moving party bears the burden of establishing that no genuine issue of
material fact remains. See Celotex Corp. v. Catrett 477 U.S. 317, 322—23,
(1986). “[W]ith respect to an issue on which the nonmoving party bears the
burden of proof
the hnren on the moving party may be discharged by
-..

6

‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Id. at 325.
If the moving party meets its threshold burden, the opposing party must
present actual evidence that creates a genuine issue as to a material fact for
trial. Anderson, 477 U.s. at 248; see also FED. R. Civ. P. 56(c) (setting forth
types of evidence on which nonmoving party must rely to support its assertion
that genuine issues of material fact exist). “[Ujnsupported allegations
and
...

pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest
Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created
a genuine issue of material fact if it has provided sufficient evidence to allow a
jury to find in its favor at trial.”).
IV.

ANALYSIS
A. Provident’s Breach of Contract Claims

In a contract action based on diversity of citizenship, the district court
must apply the substantive law of the state in which it sits. Am. Cyanamid v.
Fermenta Animal Health Co., 54 F.3d 177, 180 (3d Cir. 1995); see generally Erie
R. Co. v. Tompkins, 304 U.S. 64 (1938). To prove a claim for breach of contract

under New Jersey law, Provident must show that “the parties entered into a
valid contract, that the defendant failed to perform [its] obligations under the
contract and that the plaintiff sustained damages as a result.” Murphy v.
Implicito, 392 N.J. Super. 245, 265 (App. Div. 2007). Provident argues that
there are no material issues of fact concerning Antonucci’s breach of the
guarantees, for two reasons: First, the precise amount for which SFS and Antar
are liable on their loans, conclusively established in the prior state court
action, must be given effect here under the doctrine of collateral estoppel.
Second, Antonucci does not contest the validity of the guarantee agreements,

7

nor does he deny that, as guarantor, he is liable for the relevant unpaid debts
of SFS and Antar. (Dkt. No. 36-1, at 18-22)
Antonucci replies that summary judgment should be denied because an
alleged oral agreement with Jones on behalf of Provident creates a factual
dispute regarding the existence or scope of his liability under the guarantees.
(Dkt. No. 41-1, at 8-9) Antonucci also asserts that there is a factual issue as to
the proper amount of damages. The gist of this allegation seems to be that
Provident deliberately sold the assets SFS pledged as collateral for the Term
Loan and Revolving Credit Loan for less than their market value. Provident
engaged in this seemingly self-defeating course of action, Antonucci alleges, so
that it could steer the sale proceeds to its “professional associates” while
reserving the right to go after Antonucci for the remainder of the debt. (Dkt. No.
41-1, at 11)
Under the judgment of the Chancery Division—of which I take judicial
4
notice
—there is no question that SFS and Antar are in default under the Term
Loan, the Revolving Credit Loan, and the Mortgage Loan. Moreover, Antonucci
does not contest that the guarantees are valid, that he is liable for the debts of
SFS and Antar as guarantor, or that Provident will suffer damages if the
guarantees are not enforced. Accordingly, summary judgment may be granted
if: (i) there is no factual dispute regarding Antonucci’s failure to perform his
obligations under the contract; and (ii) there is no factual dispute regarding the
amount of damages owed to Provident.

1. The Afleged Oral Agreement with Provident
Antonucci claims that he is not in breach of the guarantee agreements,
or alternatively that he owes less money, because he entered into an oral
contract with Provident. The enforceability, or not, of that alleged oral

See FED. R. EvID. 201(b) (“The court may judicially notice a fact that is not subject to
reasonable dispute..:’); McTernan v. City of York Pa., 577 F.3d 521, 526 (3d Cir. 2009)
(“[A] court may take judicial notice of a prior judicial opinion.”). At any rate, there
seems to be no dispute as to the existence or contents of the prior judgment.

8

agreement is thus the key to summary judgment on Provident’s claims, as well
as certain of the Counterclaims. Provident contends that factual disputes about
the oral agreement are not material; even assuming arguendo that the oral
agreement exists, it is invalid under both the New Jersey Statute of Frauds and
the express provisions of the loan documents. (Dkt. No. 36-1, at 14-18)
The only evidence of the alleged oral agreement is Antonucci’s deposition
testimony. As Antonucci describes it, the agreement has three principal
elements: (1) Provident would agree to a sale of Antar’s mortgaged property in
lieu of foreclosure, if Antonucci would agree to manage the sale; (2) Provident
would agree to relieve Antonucci of personal liability for any shortfall between
the sale price and the Mortgage Loan; and (3) Provident would agree to forgive
certain loan payments. It is difficult to pin down precisely which loan payments
Provident allegedly agreed to forgive. Antonucci testified at his deposition that
Provident excused Antar’s payments on the Mortgage Loan for some
unspecified duration in order to bolster SFS’s cash flow so that it could pay
down the Term Loan. (See Dkt. No. 36-8, at 16) In his moving papers, however,
Antonucci claims that Provident agreed that SFS and Antar could defer
payment on all of Provident’s loans, not just the Mortgage Loan. (See Dkt. No.
41-1, at 8; Dkt. No. 36-1, at 19)
In the end, however, uncertainty about the terms and even the existence
of the alleged oral agreement does not give rise to a material issue of fact.
Under the New Jersey Statute of Frauds, an agreement to relinquish
enforcement remedies in a commercial loan contract is unenforceable unless it
is “in writing[] and signed by the party to be charged therewith.” See N.J. Stat.
Ann. 25: 1-5(f)-(g). Specifically, the Statute of Frauds bars an action upon an
oral agreement by a loan creditor “to forebear from exercising remedies
pursuant to a contract” that meets the following three specifications: (i) the
loan must be for an amount greater than $100,000; (ii) the funds cannot be
used “primarily for personal, family or household purposes”; and (iii) the loan
itself must be “made by a person engaged in the business of lending. money or
. .

extending credit.” N.J. Stat. Ann. 25: 1-5(f). There is no dispute that the LSA
9

and MSA loans possess these three requisites of a commercial loan contract.
Therefore, even if I assume that Provident did agree to forgive or reduce
Antonucci’s liability, that agreement would be unenforceable unless evidenced
by a writing signed by Provident. See The Provident Bank v. Bonicci, 2012 WL
2283458, at *3 (N.J. Super. Ct. App. Div. June 19, 2012) (not precedential)
(bank representative’s statement that surrender of collateral would satisfy the
defendant’s personal obligation on the loan was unenforceable without written
evidence of agreement); National Community Bank of New Jersey v. G.L.T.

Industries, Inc., 276 N.J. Super. 1, 4 (App. Div. 1994) (statute of frauds applied
to alleged oral agreement to forebear from enforcing remedies). It is undisputed
that there exists no such writing. The alleged oral agreement is unenforceable
as a matter of law.
That conclusion, although compelled by the Statute of Frauds, is further
supported by the plain language of the loan documents. The LSA and MSA
both provide that any waiver of Provident’s remedies is invalid unless it is
reduced to writing and signed by Provident. (See LSA, Dkt. No. 36-6, at 24
(“[N]o waiver will be valid unless in writing and signed by Lender and then only
to the extent specified.”); MSA at 95 (“[T]his mortgage cannot be altered
amended, waived, modified or discharged orally, and no executory agreement
shall be effective to modify. anything contained in this Mortgage unless it is in
writing and signed by the party against whom enforcement of the
. .

modification.., is sought.”)). Antonucci’s guarantees for the Term Loan,
Revolving Credit Loan, and the Mortgage Loan contain similar provisions. (See
Guarantee of Payment for Term/Revolving Credit Loan, Dkt. No. 44, at 2 (“This
Guarantee contains the entire agreement of the parties... and none of the terms
and provisions hereof may be waived, amended or terminated except by a
written instrument signed by the Person against whom enforcement. .is
.

sought.”); Guarantee of Payment for Mortgage Loan, Dkt. No. 36-7, at 8
(identical language)). Even setting aside the Statute of Frauds, then, the loan
agreements themselves bar the alleged oral modification.

10

Accordingly, summary judgment is awarded in favor of Provident as to
Antonucci’s liability on the guarantee.
2. Amount of Damages
Antonucci next argues that summary judgment should be denied
because the amount of damages is in dispute. “While New Jersey law
does not
require absolute precision as to the amount of damages sustained in order
to
grant a party summary judgment on a breach of contract claim, it does place
a
burden on plaintiff to prove the amount of damages to a reasonable degree
of
certainty.” Lithuanian Commerce Corp., Ltd. v. Sara Lee Hosiery, 219 F.
Supp.
2d 600, 605 (D.N.J. 2002) (citing Lightning Lube, Inc. v. Witco Corp., 4 F.3d
1153, 1176 (3d Cir. 1993)). Provident argues that the amount of damages
it
has suffered—and thus the amount for which Antonucci is liable as
guarantor—has been conclusively established by the Chancery Court’
s
judgment of foreclosure. Provident therefore maintains that Antonucci
is
collaterally estopped from challenging the amount of damages. (Dkt.
No. 42, at
6)
Antonucci cannot dispute that the Chancery Court’s judgment exists,
and is valid. See n.4, supra. Instead, Antonucci contends that actions
5
taken
5
The most direct view is that, as a matter of contract, the very existence of
the
judgment renders Antonucci liable as guarantor. By the somewhat more rounda
bout
route of collateral estoppel, we get to the same result: the prior judgment binds
Antonucci. Under the applicable law of New Jersey, a party seeking to invoke
preclusion must show that “(1) the issue to be precluded is identical to the
issue
decided in the prior proceeding; (2) the issue was actually litigated in the prior
proceeding; (3) the court in the prior proceeding issued a final judgment on
the merits;
(4) the determination of the issue was essential to the prior judgment; and
(5) the
party against whom the doctrine is asserted was a party to or in privity with
a party to
the earlier proceeding.” Winters v. N. Hudson Reg’l Fire & Rescue, 50 A.3d
649, 659
(N.J. 2012) (line breaks added for clarity); see also Jean Alexander Cosmetics,
Inc. v.
L’Oreal USA, Inc., 458 F.3d 244, 249 (3d Cir. 2006) (general federal standard).
Here,
the indebtedness of SFS and Antar—the condition precedent for Antonucci’s
liability
as guarantor—was adjudicated by and fully litigated in the Chance Divisio
n th
indbtdiess was necessary to e Chancery Division’s judgment of default
; and
Antonucci—as one of two shareholders in SFS and Antar and as an individually
named party—was present and fully represented in the prior action, and he
knew at

11

by Provident after the Chancery Division rendered its judgment create a
material dispute as to the amount of damages. Antonucci claims that Provident
failed to mitigate its own losses because it sold the assets SFS pledged as
collateral for the Term Loan at a below-market price. Thus, says Antonucci,
“the Plaintiff managed to take Assets with a value of $1,000,000 and sell them
for only $90,000.” (Dkt. No. 4 1-1, at 11) Provident’s strategy, according to
Antonucci, was to “use the liquidation as an opportunity to benefit other
individuals that it had a relationship with by hiring an unnecessary amount of
these professionals to do a number of unnecessary tasks.” (Id. at 10)
Antonucci further alleges that Provident chose an inappropriate agent to collect
SFS’s receivables, which led to an “unreasonably low amount being recovered”.
(Id. at 12) Because of this alleged malfeasance, Antonucci claims, he is “left
with significantly more personal liability than he would have been responsible
for” if the liquidation of assets and collection of receivables were conducted in
the proper manner. (Id.) Because these acts allegedly “did not occur until after
the [Chancery Division’s] Judgment,” granting summary judgment would
“defeat the purpose of the potential for counter-claims and abuse the doctrine
of collateral estoppel.” (Id.)
This alleged factual dispute is built on nothing more than the
unsupported assertions of Antonucci’s counsel. Antonucci’s arguments on this
point contain no citations to the record. He provides no evidence, affidavit, or
testimony that SFS’s assets were worth $1,000,000, that Provident hired too
many professionals to conduct the asset sale, or that its selection of the agent
to collect SFS’s receivables was improper. At any rate, these allegedly
6
improper actions did not occur “after the [state court] Judgment,” as Antonucci
states: SFS liquidated its assets in May 2012, over a year before the Chancery
all times of his potential liability as a guarantor. No fairness issues, such as binding a
party to a judgment it could not oppose, or lacked the incentive to oppose, arise in this
situation. Id. at 248-49 (citing Parkiane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 330—
31(1979).

In any event, the time to challenge the asset sale procedures, of which he had
notice, would have been in connection with that sale.

6

12

Division’s June 2013 judgment. (Dkt. No. 42, at 14 n.6) Any objections
could
and should have been raised then.
The unsworn statements of Antonucci’s counsel are plainly insufficient
to
raise an issue of material fact. Celotex Corp. v. Catrett, 477 U.s. 317,
324,
(“Rule 56(e) [1 requires the nonmoving party to go beyond the pleadings...”);
Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990)
(“unsworn
statements of counsel in memoranda submitted to the court are even
less
effective in meeting the requirements of Rule 56(e) than are unsupported

allegations in the pleadings”). The Chancery Division adjudged that,
as a result
of the defaults by SFS and Antar, Provident suffered damages in
a then-current
total amount of $7,775,941.11. Under the terms of the Guarantees,
Antonucci
is liable in full for that outstanding corporate debt. He has failed
to raise a
genuine, material issue of fact regarding the alleged reduction of the
balance as
a result of Provident’s subsequent conduct. Accordingly, Provident
is entitled to
seek from Antonucci that amount as well as any interest that has
accrued
since the date of the state court judgment.
For the foregoing reasons, Provident’s motion for summary
judgment on
its breach of contract claims is granted. SFS has defaulted on the
working
capital loans, and Antar has defaulted on the mortgage loan. A
binding state
court judgment so holds. It is undisputed that, as guarantor, Antonucci
is
liable for these outstanding debts. It is also undisputed that
Antonucci has
failed to pay these debts and thereby discharge his obligations under
the
guarantees. The alleged oral argument he raises in defense is unenforceable
as
a matter of law. I therefore find that Antonuccj is liable under the
guarantees
for the $7,775,941.11 judgment of the Chancery Division plus
the interest that
has accrued to date.

13

B. Antonucci’s Counterclaims
Provident also seeks summary judgment on Antonucci’s four
counterclaims. Antonucci has failed to respond substantively to any of
Provident’s arguments for summary judgment on the counterclaims. Provident
therefore urges me to deem the counterclaims abandoned. It is true that where
“a party responds to a dispositive motion, but only attempts to defend some
subset of the claims that are subject to the motion,” the undefended claims
may be deemed abandoned. Blakeman v. Freedom Rides, Inc., 2013 WL
3503165, at *13 (D. Del. July 10, 2013); see also Pollis v. Bd. of Chosen
Freeholders, 2012 WL 1118769, at *3 (D.N.J. Apr. 13, 2012) (finding plaintiffs
failure to respond to the defendant’s qualified immunity argument in its motion
for summary judgment amounts to “a concession that [the] [d]efendants are
correct”); Lawlor v. ESPN Scouts, LLC, 2011 WL 675215, at *2 (D.N.J. Feb. 16,
2011) (finding promissory estoppel claim abandoned where defendants, in
moving to dismiss, argued that the plaintiff was paid the amount owed, and
where plaintiff did not respond in any way to the defendants’ argument) (citing
Conroy v. Leone, 316 F. App’x 140, 144 n.5 (3d Cir. 2009) (“We find this
undeveloped argument has been waived.”)); Seals v. City of Lancaster:, 553 F.
Supp. 2d 427, 432 (E.D.Pa. 2008) (“Plaintiff failed to address this portion of
defendant’s motion for summary judgment in her response
plaintiff’s failure

...

...

[t]herefore,

constitutes abandonment of those claims.”) I will

nevertheless briefly review the sufficiency of Provident’s showing in favor of
summary judgment on each of Antonucci’s four counterclaims.
1.

Breach of the Alleged Oral Agreement

Count One of the Counterclaim alleges that Provident breached the
alleged oral agreement with Antonucci by instituting foreclosure proceedings
and commencing this action against him. As discussed above, however, the
alleged oral agreement is unenlorceable under both the New Jersey Statute of
Frauds and the express provisions of the LSA and MSA. See Section IV.A. 1,
14

supra. Because it does not rest on a valid and enforceable contract, the breach
of contract counterclaim must fail as a matter of law. Summary judgment is

awarded in favor of Provident on Count 1 of the Counterclaim.
2. Tortious Interference with Prospective Contractual Relations

Count Two of the Counterclaim alleges that Provident tortiously
interfered with Antonucci’s efforts to sell the Antar property. Antonucci
contends that he was actively marketing the Antar property to prospective
buyers, and that “[ijf Provident did not institute the Foreclosure Action and the
present action... [then] the Property would be sold.” (Dkt. No. 5, at 10 ¶23)
Under New Jersey law, a claimant alleging tortious interference with
contractual relations must demonstrate: “(1) that plaintiff had a reasonable
expectation of an economic benefit or advantage; (2) that defendant knew of
plaintiffs expectancy; (3) that defendant wrongfully and intentionally interfered
with this expectancy; (4) a reasonable probability that but for defendant’s
wrongful interference, plaintiff would have realized the economic benefit; and
(5) that plaintiff was injured as a result of defendant’s conduct.” Carpet Grp.
Int’l v. Oriental Rug Importers Ass’n, Inc., 256 F. Supp. 2d 249, 288 (D.N.J.
2003) (citing Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739
(1989), and Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 186 (3d
Cir. 1992)). Where the claimant alleges tortious interference with prospective

contractual relations, the requirements are identical except that the claimant
must demonstrate a “reasonable probability” of a prospective contract. See
Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1015 (3d Cir. 1994).

Antonucci has failed to raise a dispute of material fact with regard to any
of the elements of his tortious interference claim. His moving papers do not cite
to any record evidence that there were prospective buyers, or that Antonucci
had a reasonable probability of consummating such sales but for Provident’s
foreclosure. Moreover, Provident had the absolute right to foreclose on the
Antar property. That right was not relinquished pursuant to the alleged oral
15

agreement, which (if it existed) was unenforceable. See
Section IV.A. 1, supra.
Therefore, Provident could not have wrongjhlly interfered
with Antonucci’s
rights by instituting the foreclosure action. Where a party
acts in the legitimate
pursuit of its own legal and commercial interests, its cond
uct, even if harmful
to plaintiff, cannot amount to tortious interference. See,
e.g., Cargill Global
Trading v. Applied Dev. Co., 706 F. Supp. 2d 563, 576
(D.N.J. 2010) (stating
that wrongful interference means that “the interference was
inflicted
without
justification or excuse”) (quoting Mandel v. UBS Paine Web
/
ber, Inc., 373 N.J.
Super. 55, 79-80 (App. Div. 2004)); Ideal Dairy Farms, Inc.
v. Farmland Dairy
...

Farms, Inc., 282 N.J. Super. 140, 201 (App. Div. 1995
) (noting that even if the
defendant’s behavior had been motivated by spite and was
directly aimed at
hurting the plaintiff’s business, it would not rise to the
level of tortious
interference because the defendant had a “legitimate busi
ness reason to ‘target’
[the plaintiff]
regardless of any other motivation.”).
Antonucci’s counterclaim for tortious interference with
prospective
...

contractual relations fails as a matter of law. Summary
judgment is awarded in
favor of Provident on Count 2 of the Counterclaim.
3. Unjust Enrichment and Quantum Meruit

Counts Three and Four of the Counterclaim seek recovery
on the bases
of unjust enrichment and quantum meruit for the valu of
e
services provided or
benefits conferred for the benefit of Provident. Unjust enric
hment and quantum
meruit, equitable remedies, are typically pled together in
the absence of a valid
and enforceable contract. See Ramon v. Budget Rent—A—Ca
r Sys., 2007 WL
604795, at *5 (D.N.J. Feb. 20, 2007) (quasi-contract theo
ries of recovery are
generally disfavored where a valid, express contract cove
rs the subject matter
in dispute). To establish a claim for unjust enrichment,
“a plaintiff must show
both that [the] defendant received a benefit and that reten
tion of that benefit
539, 554 (1994). To recover under quantum meruit, the
claimant “must
16

establish that the services were performed with an expectation that the
beneficiary would pay for them, and under circumstances that should have
put
the beneficiary on notice that the plaintiff expected to be paid.” Weichert
Co.
Realtors v. Ryan, 128 N.J. 427 (1992). These causes of action, though quite
similar, are nevertheless distinct: under quantum meruit, although the
parties
never formed a valid and enforceable agreement, a court may find their
relationship sufficiently contractual as to permit implication of a contract
“in
fact.” Under unjust enrichment, by contrast, recovery is not premised
upon
quasi-contract, but rather upon society’s interest in preventing one party from
retaining a benefit without compensating the provider. See generally Bamert
Hosp. v. Horizon Healthcare Servs., Inc., 2007 WL 1101443, at *6
(D.N.J. Apr.
11, 2007).

The essence of Antonucci’s allegations in Counts 3 and 4 is that he
expended “services, labor and/or materials” (Dkt. No. 5, at 11 ¶36) to market
the Antar property for sale, and that Provident should compensate him
for
those efforts. Antonucci has not raised a dispute of material fact. There
is no
basis in the record for an inference that Antonuccj’s efforts to market the
Antar
property—which appear to have consisted of merely listing the property
with a
real estate broker (Declaration of Mark P. Jones, Dkt. No. 36-9, ¶16)—
conferred a benefit upon Provident. The property has been on the market
since
2012 and currently remains unsold. (Id.)
As to Count 3, listing the property for sale cannot be said to have
enriched Provident, whether justly or unjustly. Nor would Provident’s
retention
of any arguable benefit be unjust. As the mortgagee of the Antar property,
Provident had a contractual right to institute foreclosure proceedings
after
Antar defaulted. Provident cannot be compelled to compensate Antonucci
because he tried and failed to sell the property as a last-ditch effort to
avoid
foreclosure. Accordingly, summary judgment is granted in favor of Provident
Count 3 of the Counterclaim.

17

on

Likewise, as to Count 4, there is no basis in the record
for an inference
that Antonucci undertook to market the Antar property
with the expectation of
payment. Indeed, in Antonucci’s own telling, Provident
orally agreed to have
Antonuccj sell the property as part of deal to compensate
Provident for debts
owed by Antonucci in his capacity as Antar’s guarantor.
Summary judgment is
therefore granted in favor of Provident on Count 4 the
Counterclaim.
IV.

CONCLUSION

For the foregoing reasons, Provident’s motion for
summary
judgment on Counts 1 and 2 of its Complaint and on
Counts 1-4

of

Antonuccj’s Counterclaim is GRANTED.
An appropriate Order will issue.
Dated: December 12, 2014

KEVIN MCNULTY
United States District Judge

18