HUNTER et al v. STERLING BANKS, INC. et al

Filing 68

OPINION. Signed by Judge Freda L. Wolfson on 11/28/2011. (gxh)

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
______________________________
:
ELIZABETH HUNTER and THEODORE
:
R. KNUDSEN,
:
:
Civil Action No. 09-172 (FLW)
Plaintiffs,
:
:
vs.
:
:
OPINION
STERLING BANK, INC, et al.,
:
:
Defendants.
:
______________________________:
WOLFSON, United States District Judge:
Plaintiffs, Elizabeth Hunter and Theodore Knudsen (collectively, “Plaintiffs”), brought this
suit against various mortgage companies, agents and brokers, including defendants Sterling Bank,
Inc. (“Sterling”) and Mark Ramos (“Ramos”)(collectively, “Defendants”), essentially alleging that
these defendants fraudulently induced Plaintiffs into obtaining a construction loan for the renovation
of Plaintiffs’ existing property. In the present matter, defendants Sterling and Ramos move
separately for summary judgment on the claims asserted against them. For the reasons that follow,
the Court grants both motions.

BACKGROUND
The Court only recounts facts relevant to these motions and those facts are undisputed unless
otherwise noted. In April 2007, Plaintiffs purchased the real property located at 1296 Niihau Drive,
Forked River, New Jersey (the “Property”). Plaintiffs intended to substantially renovate the existing
structure and building a new two story house on the Property. See Hunter Dep., 147:19-25. After
Plaintiffs purchased the Property, in September 2007, Knudsen contacted Ramos to inquire about

obtaining a construction loan in order to make the renovations to his home. See Knudsen Dep.,
T119:18 to 122:22; Ramos Dep., T12:2-6 and 14:8-17. Ramos was employed as a mortgage broker
by defendant Allied Home Mortgage Capitol Corp. (“Allied”), a mortgage brokerage agency. Allied
conducted business in New Jersey through its agent, defendant Morgan Properties, LLC (“Morgan”).
Ramos informed Plaintiffs that Allied could arrange for the end term financing, however, he
advised Plaintiffs that Allied did not provide construction loans and Ramos would contact defendant
Interstate Construction Funding, Inc. (“Interstate”) to arrange for the construction loan. Thereafter,
in February 2008, with the assistance of Ramos, Plaintiffs secured approval from Countrywide Home
Loans (“Countrywide”) for the end term financing. See Loan Approval dated February 13, 2008.
At around the same time, Interstate processed Plaintiffs’ loan application and contacted
Sterling to secure a short term construction loan for Plaintiffs. Based on the loan application and
documents provided by Plaintiffs, Sterling approved Plaintiffs for a short term construction loan.
See Construction Loan Agreement dated February 26, 2008. The principal amount for the
construction loan was $550,000, and it was for a nine month term. See Construction Note dated
February 26, 2008.

At the closing of this loan, according to the terms of the loan agreement,

$295,344.84 was utilized to pay in full Plaintiffs’ pre-existing mortgage on the Property with
Plaintiffs’ former mortgagor, CitiMortgage.

See Payoff Statement dated March 1, 2008.

Significantly, at the time the construction loan closed, Sterling and the mortgage brokers, including
Ramos, were aware that Plaintiffs had been pre-approved by Countrywide for end term financing at
the conclusion of the nine month construction loan term. See Hunter Dep., 128:14-25.
Approximately two months after closing on the construction loan, Countrywide advised
Plaintiffs that it had terminated its approval of their end term financing because, purportedly, the
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loan product Plaintiffs applied for was no longer being offered. See Action Letter dated April 22,
2008. However, Hunter testified that she first learned of this fact in July 2008, and subsequently,
contacted Sterling to inform Sterling regarding the termination of the end term financing by
Countrywide. See Hunter Dep., 128:14-25, 156:20-25, 157:1-15.
Sometime in the Spring of 2008, while construction was ongoing, Plaintiffs listed the
Property for sale in the amount of $925,000. See Id.,129:20-21; 131:7-19. Hunter testified that she
listed the Property for sale for personal reasons unrelated to the termination of the end term loan.
In connection with the listing, Plaintiffs received an offer, in the amount of $710,000, for the
purchase of the Property. See Id.,131:23-25, 132:1-20. However, Plaintiffs declined to accept this
offer.
In the Fall of 2008, the construction of the Property was completed, and when Plaintiffs’ loan
to Sterling became due in December 2008, they defaulted on the construction loan. See Id.,167:1-14.
Thereafter, in February 2009, Plaintiffs initiated this action. In the Amended Complaint, Plaintiffs
assert a variety of contract, tort and statutory claims against Sterling and the mortgage brokers,
including Ramos, involved in Plaintiffs’ financing. The Court will delineate these claims infra. In
the instant matter, defendants Sterling and Ramos move separately for summary judgment. In
response, Plaintiffs have opposed Ramos’ motion; however, Plaintiffs did not file any opposition
papers to Sterling’s motion.
DISCUSSION
I.

Standard of Review
"Summary judgment is proper if there is no genuine issue of material fact and if, viewing the

facts in the light most favorable to the non-moving party, the moving party is entitled to judgment
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as a matter of law." Pearson v. Component Tech. Corp., 247 F.3d 471, 482 n.1 (3d Cir. 2001) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)); accord Fed. R. Civ. P. 56(c). For an issue to
be genuine, there must be "a sufficient evidentiary basis on which a reasonable jury could find for
the non-moving party." Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material
fact exists, the court must view the facts and all reasonable inferences drawn from those facts in the
light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002). For a fact to be material,
it must have the ability to "affect the outcome of the suit under governing law." Kaucher, 455 F.3d
at 423. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment.
Initially, the moving party has the burden of demonstrating the absence of a genuine issue
of material fact. Celotex Corp., 477 U.S. at 323. 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.; Maidenbaum v. Bally's Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J.
1994). 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 nonmoving party may not 'rest upon mere allegations,
general denials or . . . vague statements . . . .’” Trap Rock Indus., Inc. v. Local 825, Int'l Union of
Operating Eng'rs, 982 F.2d 884, 890 (3d Cir. 1992) (quoting Quiroga v. Hasbro, Inc., 934 F.2d 497,
500 (3d Cir. 1991)). Moreover, the non-moving party must present "more than a scintilla of evidence
showing that there is a genuine issue for trial." Woloszyn v. County of Lawrence, 396 F.3d 314, 319
(3d Cir. 2005). Indeed, the plain language of Rule 56(c) mandates the entry of summary judgment,
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after adequate time for discovery and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and on which that
party will bear the burden of proof at trial. Celotex, 477 U.S. at 322.
Moreover, in deciding the merits of a party's motion for summary judgment, the court's role
is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is
a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of
the fact finder. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
II.

Defendant Sterling
As indicated earlier, Plaintiffs have not opposed Sterling’s motion for summary judgment. In

fact, while Plaintiffs filed an opposition brief and supporting documents in response to defendant
Ramos’ motion for summary judgment, Plaintiffs have not filed any opposition papers to Sterling’s
motion. Pursuant to L. Civ. R. 56.1, Plaintiffs must file a “responsive statement of material facts,
addressing each paragraph of the movant’s statement, indicating agreement or disagreement and, if
not agreed, stating each material fact in dispute and citing to the affidavits and other documents . .
. .” L. Civ. R. 56.1(a). Because Plaintiffs have not disputed any facts set fort by Sterling, the Court
will deem those facts as undisputed. See Id. Moreover, Plaintiffs have not substantively opposed
Sterling’s legal arguments with respect to the claims asserted in the Amended Complaint against
Sterling. Consequently, due to Plaintiffs’ non-compliance with the Rules and their failure to oppose
Sterling’s motion, the Court summarily dismisses Counts I, II, III, IV, VIII, IX and X of the
Amended Complaint against defendant Sterling.

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III.

Defendant Ramos
1.

New Jersey Consumer Fraud Act (“NJCFA”)

To sustain a claim under the NJCFA, a plaintiff must prove three elements: (1) unlawful
conduct by the defendant; (2) an ascertainable loss by the plaintiff; and (3) causal connection
between the defendant’s unlawful conduct and the plaintiffs’ ascertainable loss. Bosland v. Warnock
Dodge, Inc., 197 N.J. 543, 577 (2009). With respect to the first element, the NJCFA defines
unlawful practice broadly, as including, but not limited to, unconscionable commercial practice,
deception, fraud, false promise, false pretense, misrepresentation, or knowing concealment. N.J.SA.
§56:8-2. Specifically, an affirmative misrepresentation in the context of the fraudulent act is “one
which is material to the transaction and which is a statement of fact, found to be false, made to
induce the buyer to make the purchase.” Gennerai v. Weichert Co. Realtors, 288 N.J. Super. 504,
535 (App. Div. 1996) aff’d, 148 N.J. 582 (1997).
In this case, with respect to the first element of unlawful conduct, Plaintiffs claim that Ramos
made false representations to Plaintiffs by stating that “Plaintiffs had been approved by Countrywide
for a 30 year fix end loan in the amount of $591,000.00 at 8.125%. This financing was intended to
pay off the construction loan. Am. Compl., ¶ 19. In that connection, Plaintiffs further claim that
“Ramos knew or should have known plaintiffs had not qualified for an end loan with Countrywide
prior to closing on the Sterling loan and failed to notify plaintiffs of same.” Am. Compl., ¶21. In
support of this alleged affirmative misrepresentation, Plaintiffs point solely to the deposition of
Victor J. Bean, a former employer of Countrywide’s branch manager in 2008 who oversaw the
operations center which handled the mortgage broker application process. Bean testified that with
respect to Countrywide’s loan approval letter sent to Plaintiffs in February 2008, it was an approval
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with conditions, see Bean Dep. 28:21-25, and that if the conditions were not met, there would be no
loan approval. See Id. 29:1-4. However, Bean also went on to say that he has never seen a loan
approval without any conditions. Id. 63:24-25; 64:1-3. More importantly, Bean explained that
Plaintiffs’ end term financing from Countrywide is essentially a refinance of the construction loan,
and as such, the loan approval in that situation would not have been final until the Property’s
renovations had been completed. Id. 64:4-10. Indeed, those conditions were clearly set forth in the
Loan Approval Letter sent by Countrywide to Plaintiffs and Plaintiffs were aware of those terms.
See Loan Approval dated February 18, 2008. Moreover, the same conditions were presented to
Plaintiffs at the closing of the construction loan on February 26, 2008, and Plaintiffs acknowledged
those conditions by initialing the approval sent by Countrywide. See Hunter Dep., 199:11-16.
Based on above testimony, the Court is satisfied that Plaintiffs have failed to raise any
genuine issue of material fact regarding whether Ramos made any false representations when he
advised Plaintiffs, at the time of the closing of the construction loan with Sterling, that Countrywide
had approved Plaintiffs’ end term financing, albeit with certain conditions. Indeed, the statements
made by Ramos that Plaintiffs contend were false, were in fact true; that is, Plaintiffs were approved
for a loan with Countrywide upon meeting certain conditions, one of which was the completion of
the renovation of the Property. Further, Ramos could not have advised Plaintiffs that their loan with
Countrywide was cancelled at the time of the closing of the construction loan because based on
uncontroverted evidence, Countrywide did not notify Plaintiffs of the cancellation until April 2008 approximately two months after the closing of Sterling construction loan. Accordingly, there is no
evidence demonstrating that Ramos engaged in any unlawful conduct under the NJCFA.
Likewise, Plaintiffs fail to raise any genuine issue of material fact as to the third element of
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their NJCFA claim - causal connection between the defendant’s unlawful conduct and the plaintiffs’
ascertainable loss. As explained by Bean and acknowledged by Plaintiffs, Countrywide’s decision
not to issue the end term financing was because Countrywide, in April 2008, no longer supported
the type of loan that was approved for Plaintiffs. See Bean Dep., 40:19-26; 41:1-13; Hunter Dep.,
209:1-11. As such, Ramos had no control in the decisions made by Countrywide. In that regard,
clearly, the damages that Plaintiffs allegedly suffered were not causally related in any way to any
alleged misrepresentations or omissions made by Ramos.
The Court finds that no genuine issue of material fact exists to preclude summary judgment
on this claim, and thus, Plaintiffs’ NJCFA claim asserted against Ramos is dismissed.
2.

Common Law Fraud and Negligent Misrepresentation

In order to be successful on a fraud claim, “a plaintiff must prove: (1) material
misrepresentation of a presently existing or past fact; (2) knowledge or belief by the defendant of its
falsity; and (3) an intention that the other person rely on it; (4) reasonable reliance thereon by the
other person; and (5) resulting damages.” Banco Popular N.A. v. Gandi, 184 N.J. 161, 172-73
(2005). Importantly, “[m]isrepresentations and reliance are the hallmark of any fraud claim, and a
fraud cause of action fails without them.” Id. at 174. The elements of fraud must be proved by clear
and convincing evidence. Stochastic Decisions, Inc. v. DiDomenico, 236 N.J. Super 388, 395 (App.
Div. 1989).
In New Jersey, “negligent misrepresentation is . . . [a]n incorrect statement, negligently made
and justifiably relied on, [and] may be the basis for recovery of damages for economic loss . . .
sustained as a consequence of that reliance.”

Kaufman v. I-Stat Corp., 165 N.J. 94, 109

(2000)(citing H. Rosenblum, Inc. v. Adler, 93 N.J. 3234 (1983)). Indeed, a claim for negligent
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misrepresentation is “essentially the same claim as fraud, except that it requires a scienter only of
negligence.” McClellan v. Feit, 376 N.J. Super. 305, 313, 870 A.2d 644 (App. Div. 2005); Beals v.
Bank of Am., N.A., No. 10-5427, 2011 U.S. Dist. LEXIS 128376, at *37 (D.N.J. Nov. 4, 2011).
Similar to their NJCFA claim, Plaintiffs argue that Ramos has committed a fraud by “using
fraudulent and/or material misrepresentations and nondisclosure” to induce Plaintiffs to “enter into
a loan transaction with Sterling with the false belief that they had a secured end loan to repay Sterling
upon completion of the home improvement project.” Am. Compl., ¶ 40. Again, in support of this
claim, Plaintiffs rely on the testimony of Bean that Countrywide’s loan approval was not final until
certain conditions were met. In that regard, for the same reasons explained by the Court above,
Plaintiffs have not provided any evidence to demonstrate that Ramos made any material
misrepresentations or omissions. This failure is fatal to their common law fraud claim, and
accordingly, the Court dismisses this claim against Ramos.
Likewise, with respect to their negligent misrepresentation claim, Plaintiffs maintain that
Ramos made “false, misleading or materially incomplete misrepresentations to the plaintiffs.” Am.
Compl., ¶ 72. To support this claim, Plaintiffs again rely on the testimony of Bean that the loan
approval letter is not a final approval of an end loan, and that Ramos negligently misrepresented that
fact.

For the same reasons why Plaintiffs fail to sustain a fraud claim, their negligent

misrepresentation claim must be dismissed for failure to show that Ramos’ representation regarding
Plaintiffs’ loan approval from Countrywide was false or otherwise negligent.
3.

Breach of the Covenant of Good Faith and Fair Dealing

A covenant of good faith and fair dealing is implied in every contract in New Jersey. Sons
of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997) (citing numerous cases of this Court
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holding covenant implied in every contract). Under such a covenant, “‘neither party shall do
anything which will have the effect of destroying or injuring the right of the other party to receive
the fruits of the contract[.]’” Bak-A-Lum Corp. v. Alcoa Bldg. Prod., 69 N.J. 123, 129 (1976)
(quoting Ass'n Group Life, Inc. v. Catholic War Vets. of U.S., 61 N.J. 150, 153 (1972)). “Although
the implied covenant of good faith and fair dealing cannot override an express term in a contract, a
party's performance under a contract may breach that implied covenant even though that performance
does not violate a pertinent express term.” Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001)
(citations omitted). “[A]n allegation of bad faith or unfair dealing should not be permitted to be
advanced in the abstract and absent an improper motive.” Wilson, 168 N.J. 236 at 251; Wade v.
Kessler Inst., 172 N.J. 327, 341 (2002). In other words, proof of “bad motive or intention” is vital
to an action for breach of the covenant of good faith and fair dealing. Id.
In Count Four of the Amended Complaint, Plaintiffs allege that Ramos breached his duty of
good faith and fair dealing by acting “with bad motives or intentions and contrary to the reasonable
expectations of plaintiffs.” Am. Compl., ¶¶ 46-47. However, while Count Four is captioned as
“Breach of Contract,” Plaintiffs have not specifically alleged any contract that Ramos purportedly
breached. Logically, a violation of the implied covenant of good faith and fair dealing cannot be
maintained when there is no contract between the parties. Attempting to remedy such a deficiency,
in their opposition, Plaintiffs only state that “disputed facts exist regarding Defendant Ramos’ breach
of good faith and fair dealing” because they have set forth the existence of a contract in Count Four.
Because Plaintiffs failed to allege a contractual relationship between Ramos and themselves, the
Court can summarily dismiss this claim against Ramos.
Nevertheless, even if there were a contract between Ramos and Plaintiffs, Plaintiffs have
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failed to show any bad motive or intention on the part of Ramos. According to the testimony of
Plaintiffs, Ramos assisted them in obtaining an end loan with Countrywide, as well as a construction
loan with Sterling. Indeed, Ramos’ efforts were successful. To the extent that Plaintiffs premise a
showing of bad motive related to Ramos’ alleged misrepresentations or omissions, the Court has
already found that there were no such false representations or nondisclosures. Other than these
allegations, Plaintiffs have not pointed to any other evidence to substantiate their claim in this
context. As such, the Court finds that summary judgment is appropriate.
4.

Breach of Fiduciary Duty

The essence of a fiduciary relationship is that one party places trust and confidence in another
who is in a dominant or superior position. A fiduciary relationship arises between two persons when
one person is under a duty to act for or give advice for the benefit of another on matters within the
scope of their relationship. F.G. v. MacDonell, 150 N.J. 550, 563-64 (1997) (citing Restatement
(Second) of Torts § 874 cmt. a (1979)); see In re Stroming's Will, 12 N.J. Super. 217, 224
(App.Div.), certif. denied, 8 N.J. 319 (1951) (stating essentials of confidential relationship "are a
reposed confidence and the dominant and controlling position of the beneficiary of the transaction");
Blake v. Brennan, 1 N.J. Super. 446, 453 (Ch. Div.1948) (describing “the test [as] whether the
relationship between the parties were of such a character of trust and confidence as to render it
reasonably certain that the one party occupied a dominant position over the other”); Bogert, Trusts
and Trustees 2d § 481 (1978) (stating "[t]he exact limits of the term 'fiduciary relation' are
impossible of statement. Depending upon the circumstances of the particular case or transaction,
certain business, public or social relationships may or may not create or involve a fiduciary
character."). “The fiduciary's obligations to the dependent party include a duty of loyalty and a duty
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to exercise reasonable skill and care.” F.G., 150 N.J. at 564 (citing Restatement (Second) of Trusts
§§ 170, 174 (1959). Accordingly, the fiduciary is liable for harm resulting from a breach of the duties
imposed by the existence of such a relationship. Id. (citing Restatement (Second) of Torts § 874
(1979)).
Here, Plaintiffs claim that Ramos breached his fiduciary duty by “using [his] influences to
falsely assure Plaintiffs had an approved end loan to repay Sterling upon completion of the home
improvement project.” Am. Compl., ¶ 52. With regard to such an allegation, there are no facts in
the record before the Court that Ramos unduly exerted any influence to persuade Countrywide, or
anyone else, to approve Plaintiffs’ end term financing. In fact, that determination was not in Ramos’
control as a mortgage broker. Moreover, Ramos did not falsely represent or assure Plaintiffs that
they had an end loan in place when the construction loan closed because, as this Court found earlier,
at the time of the closing of the Sterling loan, Plaintiffs indeed had an approved end loan with certain
conditions to be met before final approval could be provided by Countrywide. Plaintiffs were made
aware of those terms and conditions by way of the Loan Approval Letter and by certain documents,
which Plaintiffs had to initial, at the time the construction loan closed. During the loan process,
Plaintiffs admit that they were never advised by Ramos or Allied that final approval of the end loan
with Countrywide was guaranteed. See Hunter Dep., 202:16-203:6. In fact, upon learning that
Countrywide had withdrawn the loan approval, Ramos contacted Plaintiffs to inquire whether he
could assist Plaintiffs in obtaining replacement financing. See Ramos Dep., 68:11-17; 71:7-23.
Under this undisputed factual scenario, Plaintiffs have failed to make a showing of a “bad motive”
on the part of Ramos, and based on the lack of any evidence in that regard, summary judgment is
appropriate.
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5.

Promissory Estoppel

Plaintiffs contends that they are entitled to recovery under the doctrine of promissory estoppel
because they suffered damages by relying on Ramos’ knowingly false “promise to [Plaintiffs] that
they had an approved end loan to repay Sterling upon completion of the home improvement project.”
Am. Compl., ¶ 55. The elements of promissory estoppel are: 1) a clear and definite promise, 2)
made with the expectation that the promisee will rely upon it, 3) reasonable reliance upon the
promise, 4) which results in definite and substantial detriment. East Orange Bd. of Educ. v. New
Jersey Schools Const. Corp., 405 N.J. Super. 132, 148 (App. Div. 2009).
Here, Plaintiffs, through the testimony of Bean, reiterate their earlier contention that the loan
approval provided by Countrywide was not a final approval, and as such, Ramos falsely promised
Plaintiffs that Plaintiffs’ end term financing was approved. As the Court has already noted
throughout this Opinion, Ramos’ representation that Countrywide had approved Plaintiffs loan was
not false, and further, according to plaintiff Hunter’s own testimony, Ramos never made any promise
that the final approval of the end loan would be guaranteed. See Hunter Dep., 202:16-203:6. To the
contrary, there is no dispute that Ramos expressly advised Plaintiffs that the end loan documents
would have to be updated near the completion of the renovation of the Property, and that, according
to the terms of the approval, Plaintiffs should ensure that they pay all credit cards on time and not
overspend in order to prevent a negative change to their financial position. See Ramos Dep., 85:1487:6 and 140:3-7. Because there are no facts in dispute that Ramos never made any promise to
Plaintiffs, false or otherwise, that Plaintiffs had a guaranteed end loan with Countrywide, Plaintiffs
have failed to sufficiently establish the first element of promissory estoppel; accordingly, Count six
is summarily dismissed.
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6.

Unconscionability

An affirmative defense of unconscionability can be sustained when a party shows that the
contract terms are manifestly unfair or oppressive and are dictated by a dominant party. Howard v.
Diolosa, 241 N.J. Super 222, 230 (citing Kuzmiak v. Brookchester, 33 N.J.Super. 575 (App.
Div.1955)). In that a regard, a party must demonstrate unconscionability by “showing some
overreaching or imposition resulting from a bargaining disparity between the parties, or such patent
unfairness in the contract that no reasonable person not acting under compulsion or out of necessity
would accept its terms.” Id. (citing Rotwein v. General Accident Group & Cas. Co., 103 N.J. Super.
406, 417-418 (Law Div.1968)).
However, as a matter of law, the doctrine of unconscionability generally “acts as a shield
against enforcement of an unreasonable contract and not a sword on a claim for affirmative relief.”
Sitogum Holdings, Inc. v. Ropes, 352 N.J. Super 555, 566 n.14 (Ch. Div. 2002). Therefore, it can
not be brought as an affirmative claim or cause of action. See Lind v. New Hope Prop., LLC, No.
09-3757, 2010 U.S. Dist. LEXIS 36672, at *25-26 (D.N.J. Apr. 13, 2010); Alboyacian v. BP Prods.
N. Am., No. 09-5143, 2011 U.S. Dist. LEXIS 134453, at *17 (D.N.J. Nov. 21,
2011)(unconscionability is not a cause of action that a plaintiff may bring in the affirmative); see also
Calhabeu v. Rivera, 217 N.J. Super. 552, 558 (Law Div. 1987)(court held “‘unconscionability’ to
be a matter of defense” and “[t]raditionally, it is raised by defendant rather than plaintiff.”).
Here, it appears that while Ramos moved to dismiss this Count, the Amended Complaint
clearly states that this Count is only asserted against defendants Allied, Interstate and Morgan
Properties. However, to the extent that this Count is asserted against Ramos, Plaintiffs may not
affirmatively bring a claim of unconscionability against him.
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7.

Negligence

To state a claim for negligence under New Jersey law, a plaintiff must demonstrate: (1) a
duty of care owed by the defendant to the plaintiff; (2) a breach of that duty; (3) injury or harm to
the plaintiff; and (4) proximate cause. Anderson v. Sammy Redd and Associates, 278 N.J. Super
50, 56 (App. Div. 1995).
Here, to sustain a claim for negligence, Plaintiffs maintain that as their agent, Ramos had “a
duty to advise and inform them that the approval for the end loan was not a loan approval and that
if [he] had told them prior to their closing of the construction loan, they would then have the choice
of either continuing with the closing or not [close] at all.” Plaintiffs’ Opp., p. 5. Accordingly,
Plaintiffs reason, because Ramos had negligently performed his duties – i.e., falsely informing
Plaintiffs that Countrywide had provided Plaintiffs with a definitive loan approval – they are entitled
to relief. The Court disagrees.
Based on the testimony and other evidence introduced by the parties on this motion, Plaintiffs
have failed to demonstrate that Ramos breached his duty. As the Court has found, Ramos’
representation that Countrywide had approved Plaintiffs’ end loan with certain conditions was not
false and was not negligently made because it is undisputed that Countrywide provided Plaintiffs
with a loan approval. Plaintiffs were certainly aware that while this approval was sufficient to
procure a construction loan with Sterling, the conditions provided in the Loan Approval Letter must
be met before the closing of the end loan. Absent any contrary evidence, the Court finds that
Plaintiffs have failed to show that Ramos was negligent in his duties as a broker, and therefore, this
claim is dismissed.

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8.

Civil Conspiracy

Because Plaintiffs cannot sustain their claim for common law fraud, which is the sole basis
for their conspiracy claim, this claim must be dismissed. See Farris v. County of Camden, 61 F.
Supp. 2d 307, 326 (D.N.J. 1999) (civil conspiracy is not an independent cause of action but rather
a liability expanding mechanism which exists only if the plaintiff can prove the underlying
independent wrong); Board of Educ. Asbury Park v. Hoek, 38 N.J. 213, 238 (1962).
CONCLUSION
The Court finds that based upon uncontroverted evidence in the record, Plaintiffs fail to show
that Ramos made any fraudulent or negligent misrepresentations or nondisclosures in connection
with Plaintiffs’ end term financing with Countrywide. Accordingly, defendant Ramos’ motion for
summary judgment is GRANTED. Based upon Plaintiffs’ failure to oppose or otherwise respond
to Sterling’s motion for summary judgment, Sterling’s motion is likewise GRANTED.

DATED: November 28, 2011

/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge

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