RICARDO JALIL v. THE DIME SAVINGS BANK, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A- 1388-05T11388-05T1

RICARDO JALIL,

Plaintiff-Appellant,

v.

THE DIME SAVINGS BANK, C.

PENA REALTORS, JOSEPH ZARRA,

MARTHA FERRARI, GEORGE

JOHNSON, ESQUIRE, and

RICHARD SIMMONDS, ESQUIRE,

Defendants-Respondents.

__________________________________

 

Submitted September 13, 2006 - Decided September 26, 2006

Before Judges Hoens and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-0486-05.

Ricardo Jalil, appellant, pro se.

Norris, McLaughlin & Marcus, attorneys for respondent Washington Mutual Bank (Alison L. Galer, on the brief).

Bumgardner, Ellis, McCook & Kingsley, attorneys for respondents C. Pena Realtors and Martha Ferrari (Roger G. Ellis, on the brief).

PER CURIAM

Plaintiff Ricardo Jalil appeals the entry of two September 23, 2005, orders, one of which dismissed his complaint against defendant C. Pena Realtors, while the other denied his motion to enter default against The Dime Savings Bank (The Dime) and granted, in part, the cross-motion of defendant Washington Mutual Bank, successor corporation to The Dime Savings Bank, to restrain and enjoin any further filings against it. Plaintiff also appeals the October 13, 2005, order which amended the September 23, 2005, dismissal order to include Martha Ferrari, C. Pena Realtors' sales agent. We affirm.

By way of background, in 1989 plaintiff purchased a multi-family residence located in Dover, New Jersey. Ferrari acted as the sales agent. Plaintiff secured a $200,000 loan from The Dime to finance the purchase. The note and mortgage evidencing the loan were executed by plaintiff on May 8, 1989.

In 1992, The Dime commenced a foreclosure action against plaintiff. As a defense to that action, plaintiff claimed he was the victim of fraud because he never signed the loan documents. The court struck that defense and a judgment of foreclosure was entered against plaintiff and his spouse. Plaintiff filed an action in federal court against The Dime and C. Pena Realtors, charging defendants with fraud in connection with the real estate transaction. The federal district court dismissed the complaint on jurisdictional grounds and the Third Circuit affirmed the dismissal. Plaintiff filed a second complaint in federal district court raising the same allegations; however, that complaint was also dismissed.

Plaintiff then commenced an action in state court in the Chancery Division, where plaintiff once again asserted the same fraud claims against defendants in connection with the purchase of the Dover property. Plaintiff also named as defendants, Joseph Zarra, The Dime's loan officer; Martha Ferrari, the sales agent; George Johnson, closing attorney for the sellers; and Richard Simmonds, closing attorney for plaintiff and his spouse, the buyers. Defendants moved for summary judgment, which the court granted on January 21, 1994, as to all remaining defendants, except C. Pena Realtors and Ferrari, who were granted summary judgment by order dated March 31, 1994. In his March 31, 2004, oral decision, Judge MacKenzie found plaintiff's fraud claims were "vague and generally unintelligible" and "unsupported" by the record. The judge concluded plaintiff had "no proof to support the wild and unsubstantiated allegations that he makes." In addition, as a matter of law, the judge found no duty is "impose[d] upon a real estate salesperson or the broker . . . to direct or advise a purchaser as to the terms of a contract of sale of real estate or to construe the meaning of the words used." Plaintiff did not seek reconsideration, nor did he file an appeal of Judge MacKenzie's decision. Instead, on January 5, 2005, nearly eleven years after Judge MacKenzie dismissed the Chancery Division action, plaintiff filed a motion to transfer the case to the Law Division.

The motion was docketed for administrative purposes only. Defendants C. Pena Realtors and Ferrari again filed a motion to dismiss. At the same time, plaintiff filed a motion to enter default judgment against Washington Mutual Bank, which cross-moved for an order restraining plaintiff from further filings against it. Judge Langlois dismissed the matter and also restrained and enjoined plaintiff "from filing any further pleadings (in this action) as to Washington Mutual Bank or The Dime Savings Bank relating to the claims asserted in this matter." In addition, the order required that "[a]ny further relief [to bar subsequent filings] shall be considered through [the] Assignment Judge."

The present appeal followed. Plaintiff claims the motion judge "had the responsibility to enter a formal and final judgment in this case."

We have carefully considered all of the points raised by plaintiff on appeal. We conclude the issues presented by the plaintiff are without sufficient merit to warrant extensive discussion in this opinion, R. 2:11-3(e)(1)(E). We add, however, the following comments.

Judge Langlois, in her oral opinion, reviewed the procedural history of plaintiff's cause of action and explained to plaintiff that the essence of his complaint was an attempt to revive claims, albeit for money damages, that had previously been dismissed and for which no appeal had been taken.

 
A cause of action for money damages based upon fraudulent conduct is subject to the six-year period of limitations set forth in N.J.S.A. 2A:14-1. In as much as plaintiff contends the fraudulent conduct arose in connection with the purchase of the Dover property, plaintiff became aware of the alleged fraud, at the earliest, during the real estate closing in 1989 or, at the very latest, in 1992, when he raised fraud as a defense to the foreclosure action. Thus, the judge properly concluded that plaintiff's attempt to recover money damages more than eleven years later based upon fraud was time barred. Ibid. We affirm substantially for the reasons expressed by Judge Langlois in her oral opinion delivered on September 23, 2005.

Affirmed.

Washington Mutual Bank is the successor by merger to The Dime Savings Bank of New York, F.S.B., improperly pled as The Dime Savings Bank.

The Estate of Martha Ferrari.

(continued)

(continued)

5

A-1388-05T1

 

September 26, 2006