Opinion
DOCKET NO. A-4524-12T1
07-02-2015
MARILYNN ENGLISH, Plaintiff-Appellant, and ENGLISH FINANCIAL, LLC, Plaintiff, v. BANK OF AMERICA, N.A., SHAUYN COPELAND, RODNEY COPELAND, DONNA M. RINALDO, ESQ. and DAVID H. KAPLAN, ESQ., Defendants-Respondents, and AN UNIDENTIFIED EMPLOYEE OF BANK OF AMERICA and MICHAEL COPELAND, Defendants.
Marilynn English, appellant pro se. Zeichner Ellman & Krause, LLP, attorneys for respondent Bank of America, N.A. (William T. Marshall, Jr. and Kerry A. Duffy, on the brief). Slavitt & Cowen, attorneys for respondent Shauyn Copeland, rely on the brief of respondent Bank of America, N.A. Mariniello & Mariniello, PC, attorneys for respondent Rodney Copeland, rely on the brief of respondent Bank of America, N.A. Law Offices of Joseph Carolan, attorneys for respondent Donna M. Rinaldo (Steven J. Tegrar, on the brief). David H. Kaplan, respondent pro se.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Nugent and Accurso. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-10269-10. Marilynn English, appellant pro se. Zeichner Ellman & Krause, LLP, attorneys for respondent Bank of America, N.A. (William T. Marshall, Jr. and Kerry A. Duffy, on the brief). Slavitt & Cowen, attorneys for respondent Shauyn Copeland, rely on the brief of respondent Bank of America, N.A. Mariniello & Mariniello, PC, attorneys for respondent Rodney Copeland, rely on the brief of respondent Bank of America, N.A. Law Offices of Joseph Carolan, attorneys for respondent Donna M. Rinaldo (Steven J. Tegrar, on the brief). David H. Kaplan, respondent pro se. PER CURIAM
Plaintiff Marilynn English appeals from several orders granting summary judgment in favor of defendants Bank of America, N.A., Shauyn Copeland, Donna M. Rinaldo, Rodney Copeland and David H. Kaplan dismissing her complaint with prejudice. We affirm.
This case grew out of a residential real estate transaction between Shauyn Copeland (Shauyn) and her brother-in-law Rodney Copeland (Rodney). Plaintiff claims that Shauyn contacted her company, English Financial, LLC, a licensed mortgage broker, in 2005 to assist her in procuring a mortgage in connection with her purchase of a four-family home in Newark from Rodney. Because Shauyn said she wanted to live in the property and wanted to make little or no down payment, English advised her to apply for a stated income loan requiring only ten percent down but asset verification.
Based on information provided by Shauyn, plaintiff filled out a form entitled "Request for Verification of Deposit" for Shauyn's checking account in which she claimed to have $76,525.64 on deposit, and submitted it to the Bank of America branch in Summit. The form included instructions "To Depository," advising that the applicant had applied for a mortgage loan and stated to the lender "that the balance on deposit with you is as shown above." The depository was authorized to verify the information and supply the lender (listed on the form as English Financial) with the information sought. The form explicitly provided, "Your response is solely a matter of courtesy for which no responsibility is attached to your institution or any of your officers." An unidentified employee in the Summit branch verified the balance in Shauyn's account on December 14, 2005 to be $76,528.64 and reported an average balance over the prior two months of $73,212.04.
Rodney and Shauyn agreed on a purchase price of $405,000, and the contract provided that deposit funds of $40,500 were to be paid to Rodney's counsel, defendant Rinaldo, within three days of the seller's receipt of a fully executed contract. English Financial assisted Shauyn in securing a $364,500 mortgage from Countrywide Bank. The transaction closed on February 8, 2006, with only Shauyn in attendance. English Financial was paid all of its earned commission from funds at closing.
Shauyn defaulted on her mortgage within months, and the property went into foreclosure. In August 2009, defendant David Kaplan filed a predatory lending complaint in Superior Court on behalf of Shauyn against Countrywide, English Financial and plaintiff, as well as the title agency that closed the loan. The case was removed to federal court and eventually settled against Countrywide in August 2010. The claims against English Financial and plaintiff were dismissed without prejudice.
The foreclosure was instituted in 2006 by JP Morgan Chase Bank, N.A., which presumably had acquired the mortgage from Countrywide.
Countrywide merged into Bank of America on April 27, 2009. Bank of America funded the settlement.
In December 2010, English Financial and plaintiff instituted this action. English Financial's claims were dismissed after its counsel withdrew, and plaintiff became self-represented. Plaintiff thereafter amended her complaint to assert common law fraud, conspiracy, tortious interference, negligence, negligent supervision and tortious interference, vicarious liability, negligent interference, fraud, filing a false and frivolous lawsuit, and facilitating fraud. The gravamen of her claims is that she was the victim of fraud committed by Shauyn, Rodney, Rinaldo and the unidentified Bank of America employee that provided the erroneous information on the Verification of Deposit. She claims that because of the lawsuit filed negligently against her and her company by David Kaplan, the company lost its surety bond, causing damage to her reputation and income. Plaintiff claims English Financial could not broker mortgages without a bond, and that its loss ultimately led to her personal bankruptcy.
English Financial appealed that judgment, which we affirmed on Bank of America's motion for summary dismissal. English Financial did not oppose the motion.
Plaintiff alleges she learned in October 2010, via a subpoena served on Bank of America during the pendency of the federal suit, that Shauyn did not have the money she claimed to have on deposit at the bank in the Verification of Deposit. Plaintiff claims had the Bank of America employee reported the actual balances in Shauyn's account, the loan would never have closed and she and her company would never have been sued.
Plaintiff concedes, however, that Shauyn's bank statements reflect in excess of $7 9,000 in the account during January and February 2006, the month after plaintiff submitted the Verification of Deposit on Shauyn's behalf.
She also claims that Shauyn had no intention of ever residing in the property and that she and Rodney committed fraud by inflating the purchase price and arranging the transaction to reflect a $40,500 down payment that never existed. Plaintiff obtained in discovery two prior failed contracts for the property in 2005, one with a purchase price of $345,000 and the other for $340,000. Shauyn also admitted at deposition that she never paid any deposit monies to Rodney.
Plaintiff claims that Rodney's attorney, defendant Rinaldo, was aware of the inflated price, as she had prepared the two failed contracts, and falsified the HUD statement at closing by representing that Shauyn had paid the $40,500 deposit to Rodney. In response to a subpoena by the title company in the federal action, Rinaldo produced her file, including a letter to Rodney a week before the closing confirming a "conversation wherein [Rodney] advised that Buyer would be remitting the deposit funds directly to you, as agreed upon by and between you and the Buyer." The letter went on to say "this letter shall serve to amend the contract in regard thereto" and was copied to Shauyn. Based on the script of the letterhead, plaintiff asserts that the letter is fraudulent, created in 2010, years after the closing to cover up Rinaldo's role in the fraud.
Neither Rinaldo nor Rodney were defendants in Shauyn's predatory lending suit litigated in federal court.
Plaintiff did not depose Rinaldo to inquire about the different scripts of the letterhead and did not present an expert report in support of her claim that the letter was created sometime in 2010. --------
Finally, plaintiff claims that David Kaplan "filed a false and frivolous lawsuit against [p]laintiff that was without fact or merit," that he "failed to do any due diligence on the documents" he was presented by Shauyn, and that when he "accepted settlement [from Countrywide]" on her behalf knowing she never made the $40,500 deposit to Rodney, "he became a partner in her fraud scheme." Plaintiff claims it was the filing of that lawsuit that caused Hartford Fire Insurance Company to terminate its bond on behalf of English Financial.
After two years of discovery, the trial court granted motions for summary judgment dismissing the complaint against all remaining defendants, Bank of America, Shauyn, Rodney, Rinaldo and Kaplan. The judge concluded that plaintiff failed to demonstrate that Bank of America owed her any duty to accurately report the funds in Shauyn's account in the Verification of Deposit completed by one of its employees. The judge concluded the Verification of Deposit was for the benefit of the lender, Countrywide, and not for the benefit of English Financial, which acted only as Shauyn's agent in the transaction, or for plaintiff whose role was even more remote as a principal of English Financial. The judge noted that English Financial received the full commission earned on the transaction in 2006. Further, the court found that plaintiff could not establish a causal nexus between the Verification of Deposit and her decreased income and concluded her inability to establish that her loss of income was the result of any conduct of the Bank was fatal to her claims. Finally, the court noted plaintiff had failed to establish that she had the consent of her trustee in bankruptcy to even file the action or that it was exempt from her bankruptcy estate.
The judge dismissed the claims against both Shauyn and Rodney for similar reasons. Specifically, the judge found that neither Shauyn nor Rodney owed any duty to plaintiff and plaintiff could not demonstrate a causal connection between the loss of English Financial's surety bond and any acts on their parts. The court noted plaintiff's acknowledgment in a certification in opposition to the motion that the fraud at the heart of her conspiracy claims "can not yet be proven." Although acknowledging "that the action commenced [sic] in federal court which initially named English may have been the result of an overzealous filing where . . . everyone and anyone who had anything to do with the transaction was named," the court concluded that plaintiff was without proof that the loss of her company's surety bond and the damages occasioned by that loss were as a result of that action.
The court found the same lack of duty and absence of proximate cause dispositive of plaintiff's claims against Rinaldo, citing plaintiff's failure to establish that the cancellation of English Financial's surety bond was due to the federal action. The court found that the expert reports submitted by plaintiff in support of her malpractice claim failed to establish any duty on the part of Rinaldo to the mortgage broker or its principal, and dismissed them as simply net opinions devoid of any recognizable theory of liability. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011) ("[A]n expert's bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered."). The court dismissed plaintiff's claim that Rinaldo manufactured the letter amending the contract to reflect her client Rodney's advice that Shauyn tendered the deposit monies directly to him as "nothing more than mere speculation."
As to the claims against Kaplan, the court found plaintiff could not proceed under N.J.S.A. 2A:15-59 because the statute does not apply to attorneys, see McKeown-Brand v. Trump Castle Hotel and Casino, 132 N.J. 546, 560 (1993), and she failed to follow either state or federal procedural rules for the filing of frivolous complaints. Accordingly, the court rejected the claim for filing a frivolous complaint, even assuming arguendo that Kaplan should have dismissed the claim following Shauyn's deposition in the federal litigation admitting she never paid a deposit to Rodney. As with the claims against the other defendants, the court also found plaintiff could not establish that she had been harmed by any act on Kaplan's part. Finally, the court found plaintiff lacked standing to complain in this suit of Kaplan's acceptance of a settlement from Countrywide on behalf of Shauyn.
We review summary judgment using the same standard that governs the trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). Thus, we consider "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Applying that standard here, our review of the record convinces us that summary judgment was appropriately entered on behalf of all remaining defendants.
Plaintiff played no individual role in the 2006 real estate transaction. She acted as the principal of English Financial, all claims of which were previously dismissed with prejudice. She has asserted no basis upon which the court could find any duties flowing personally to her from anyone involved in that transaction. Even assuming she could somehow personally assert the breach of a duty flowing to her, plaintiff cannot establish on this record that Hartford's cancellation of her company's surety bond was as a result of the predatory lending action. Plaintiff admits that Hartford's stated reason for cancelling the bond was "Increased Hazard Or Material Change In Risk," and admits her credit "suffered significantly in December 2008." She argues to us, however, as she did to the trial court that "the 'change' referred to in the cancellation of the Company's surety bond was, in [her] opinion, the lawsuit that was filed against Marilynn English and English Financial in August 2009." We have no doubt that plaintiff's opinion is sincerely held, but it does not suffice as proof sufficient to defeat a motion for summary judgment.
Plaintiff's failure to establish that the predatory lending lawsuit, which she claims would not have been filed but for the nefarious acts of each defendant, was a proximate cause of her damages is fatal to her claims against all defendants and entitles each to summary judgment as a matter of law. Because we agree with the trial court that plaintiff failed to establish the existence of any duty owed personally to her by any defendant involved in the 2006 real estate transaction, has failed to establish the claimed reduction in her income was proximally caused by the filing of the predatory lending lawsuit three years later, and cannot proceed on her claims against Kaplan under statute or court rule, we affirm.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION