GEORGE KIMMERLING VS. ASTORIA BANK (L-1330-17, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4724-17T4
GEORGE KIMMERLING,
Plaintiff-Appellant,
v.
ASTORIA BANK,
Defendant,
and
WEICHERT FINANCIAL
SERVICES,
Defendant-Respondent.
____________________________
Submitted September 9, 2019 – Decided September 17, 2019
Before Judges Rothstadt and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-1330-17.
Denbeaux & Denbeaux, attorneys for appellant (Joshua
Wood Denbeaux, on the brief).
Mc Cusker Anselmi Rosen & Carvelli PC, attorneys for
respondent (Alicyn Beth Craig, of counsel and on the
brief).
PER CURIAM
Plaintiff George Kimmerling appeals the trial court's May 14, 2018 order
granting summary judgment in favor of defendant Weichert Financial Services
("Weichert"). After holding a Lopez1 hearing, the trial court determined that
plaintiff's claims were barred by the applicable statute of limitations. We affirm.
We recite the following facts from the record. Plaintiff, who holds a
bachelor's degree in accounting and finance, is a licensed realtor. Throughout
his career, beginning in 1970, he has formed real estate businesses and has been
involved in the ownership or sale of approximately fifty properties.
In June 2005, plaintiff sought to refinance his property located in Mays
Landing (the property). He applied through Weichert for a thirty-year mortgage
with interest-only payments for the first five years.
Weichert approved plaintiff for a loan and prepared various pre-closing
documents in relation to the loan. Some of the pre-closing documents reflect a
thirty-year loan term, while others reflect a fifteen-year term. It is undisputed,
however, that on July 22, 2005, plaintiff executed a note and mortgage, as well
1
Lopez v. Swyer, 62 N.J. 267 (1973).
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as a "truth in lending" statement, which reflected a fifteen-year term with
interest-only payments for the first ten years. At the Lopez hearing, plaintiff
testified that he did not scrutinize the closing documents or read the terms item-
by-item prior to executing the documents.
Plaintiff avers that he did not learn the loan was for a fifteen-year term
until his amounts due increased after the interest-only period ended in August
2015. After plaintiff defaulted on the loan, Weichert's assignee, Astoria Bank,
filed a foreclosure complaint against plaintiff in February 2016. Plaintiff
answered the foreclosure complaint, asserted counterclaims against Astoria
Bank, and also filed a third-party complaint against Weichert, alleging
violations of the Consumer Fraud Act, N.J.S.A. 56:8-1 to -210, and common law
fraud. After Weichert failed to timely respond to the third-party complaint,
plaintiff requested the entry of default against Weichert.
In March 2017, Astoria bank moved for summary judgment. On June 2,
2017, in accordance with the parties' agreement memorialized on the record, the
Chancery Division: (1) transferred plaintiff's claims against Astoria Bank and
Weichert, upon refiling, to the Law Division; (2) vacated the default against
Weichert and permitted Weichert to file an answer and assert defenses to
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plaintiff's third-party complaint; and (3) struck plaintiff's answer and granted
Astoria Bank's motion for summary judgment in the foreclosure action.
After plaintiff re-filed his claims in the Law Division, Weichert moved
for summary judgment on the grounds that plaintiff's claims were barred by the
entire controversy doctrine and the applicable six-year statute of limitations. 2
Following the initial summary judgment motion hearing, the trial court
scheduled a Lopez hearing on the issue of whether plaintiff's claims were timely
filed under the discovery rule. During the April 25, 2018 Lopez hearing held
before Judge Nelson C. Johnson, plaintiff testified, portions of deposition
testimony were read into the record, and various documents were entered in
evidence.
On May 14, 2018, Judge Nelson issued a comprehensive written decision,
concluding that plaintiff's claims were time-barred and granting Weichert's
motion for summary judgment. The judge found that plaintiff "is a
knowledgeable, experienced, and a sophisticated real estate professional" with
a long career involving real estate transactions. Based on this experience, the
judge reasoned that "[a]ssuming [p]laintiff was conducting himself on this
2
Under N.J.S.A. 2A:14-1, the statute of limitations for fraud claims is six years.
Catena v. Raytheon Co., 447 N.J. Super. 43, 52 (App. Div. 2016).
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transaction at the standard expected of a real estate professional, it is difficult to
imagine any set of circumstances in which anyone could take advantage of this
gentlemen." The judge emphasized that plaintiff admitted he did not closely
read the closing documents and "was the victim of his own neglect."
Judge Nelson concluded that although there were differences between
some of the pre-closing documents and the closing documents, plaintiff would
have recognized the differences if he was reasonably diligent in reviewing the
closing documents prior to executing them. Citing to County of Morris v.
Fauver, 153 N.J. 80, 110 (1998), the judge noted that the discovery rule
ordinarily does not apply in contract actions because they do not involve
"undiscoverable types of injuries." For these reasons, the judge found that
plaintiff "is far too sophisticated a plaintiff – nor is this the type of occurrence
– for which the discovery rule was intended to apply . . . ." Accordingly, the
judge granted summary judgment and dismissed plaintiff's claims as time -
barred.
On appeal, plaintiff argues that the trial judge made both factual and legal
errors warranting reversal. He contends that pursuant to the discovery rule, his
claims did not accrue until August 2015 when the amounts due under the
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mortgage accelerated. Plaintiff also argues that the entire controversy doctrine
does not bar his claims.
Having reviewed plaintiff's contentions in light of the record and
applicable legal principles, we affirm substantially for the reasons set forth in
Judge Johnson's well-reasoned written opinion. We add only the following
comments.
The discovery rule is an equitable doctrine which tolls the accrual of the
statute of limitations "until the injured party discovers, or by an exercise of
reasonable diligence and intelligence should have discovered that he may have
a basis for an actionable claim." Lopez, 62 N.J. at 272. Where credibility of
witnesses is involved, the determination of the date upon which a plaintiff
became aware of the facts giving rise to the cause of action should ordinarily be
made by the judge "at a preliminary hearing and out of the presence of the jury."
Id. at 275. "The burden of proof will rest upon the party claiming the indulgence
of the [discovery] rule." Id. at 276.
The court's determination of the date of accrual "is highly fact-sensitive,
and will 'vary from case to case, and . . . from type of case to type of case.'"
Catena, 447 N.J. Super. at 54 (quoting Vispisiano v. Ashland Chem. Co., 107
N.J. 416, 434 (1987)). The court should consider all relevant factors, including:
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"the nature of the alleged injury, the availability of witnesses and written
evidence, the length of time that has elapsed since the alleged wrongdoing,
whether the delay has been to any extent deliberate or intentional, whether the
delay may be said to have peculiarly or unusually prejudiced the defendant."
Lopez, 62 N.J. at 276.
Our review of a trial court's fact-finding is limited. "Findings by the trial
judge are considered binding on appeal when supported by adequate, substantial
and credible evidence." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65
N.J. 474, 484 (1974). "[W]e do not disturb the factual findings and legal
conclusions of the trial judge unless we are convinced that they are so manifestly
unsupported by or inconsistent with the competent, relevant and reasonably
credible evidence as to offend the interests of justice[.]" Seidman v. Clifton
Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (alteration in original) (quoting In
re Trust Created By Agreement Dated December 20, 1961, ex rel. Johnson, 194
N.J. 276, 284 (2008)). We give particular deference to the trial judge's factual
findings when the evidence is largely testimonial and involves credibility
determinations. See In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997); see also Lopez, 62 N.J. at 275 (noting that the resolution of discovery
issues may rest on witness credibility).
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After reviewing the record, we conclude that Judge Johnson's factual
findings are fully supported by the record and, in light of those facts, h is legal
conclusions are unassailable. The judge appropriately determined that plaintiff,
an experienced real estate investor, reasonably should have read the closing
documents in 2005 and discovered that the loan term was fifteen years.
Accordingly, the judge correctly ruled that plaintiff's claims were not tolled by
the discovery rule.
To the extent we have not specifically addressed any remaining arguments
raised by plaintiff, we conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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