BARRY MARGULIES, et al. v. CHASE MANHATTAN MORTGAGE CORPORATION

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4087-03T34087-03T3

BARRY MARGULIES, on behalf of

himself and all others similarly

situated,

Plaintiff-Appellant,

v.

CHASE MANHATTAN MORTGAGE

CORPORATION,

Defendant-Respondent.

________________________________________________________________

 

Submitted October 11, 2005 - Decided

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-5812-03.

Trujillo Rodriquez & Richards and Ann Miller of the Pennsylvania bar, admitted pro hac vice and Richard D. Greenfield (Greenfield & Goodman) of the Maryland bar, admitted pro hac vice, attorneys for appellant (Lisa J. Rodriguez, Ms. Miller and Mr. Greenfield, on the brief).

Riker, Danzig, Scherer, Hyland & Perretti and LeAnn Pedersen Pope and Robert J. Emanuel (Burke, Warren, MacKay & Serritella) of the Illinois bar, admitted pro hac vice, attorneys for respondent (Anthony J. Sylvester, of counsel and on the brief; Ms. Pederson Pope, of counsel and on the brief; Harold L. Kofman and Mr. Emanuel, on the brief).

PER CURIAM

Plaintiff, Barry Margulies, appeals from a summary judgment dismissing in its entirety his putative class action claim against defendant, Chase Manhattan Mortgage Corporation (Chase), which challenged Chase's "account crediting practices." The complaint contained three counts: (1) violation of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -156; (2) breach of contract/breach of duty of good faith and fair dealing; and (3) breach of fiduciary duty. On appeal, plaintiff argues that the judge did not correctly apply summary judgment principles and acted as a factfinder. Plaintiff further argues that he was denied necessary discovery and the matter was not ripe for summary judgment disposition. With respect to the breach of fiduciary duty and breach of covenant of good faith and fair dealing claims, plaintiff contends the trial judge misapplied the law in dismissing those claims. With respect to the CFA claim, plaintiff contends the judge erred in determining that under conflict of laws principles Maryland law applied, thus defeating a claim under New Jersey's CFA. Finally, plaintiff contends that his complaint contained a straight breach of contract claim, separate and apart from his claim of breach of the covenant of good faith and fair dealing, that defendant did not address the straight breach of contract claim in its summary judgment motion, that he made a sufficient prima facie showing on that claim to survive summary judgment, and that the claim was improperly dismissed. We agree with plaintiff's last-mentioned contention, and we reverse and remand for further proceedings on the straight breach of contract claim. We reject plaintiff's remaining contentions and in all other respects affirm.

I

Plaintiff, a Maryland resident, and his wife refinanced their home, located in Maryland, by executing a note dated January 31, 2003 in the amount of $177,500 payable to Chase. The note was secured by a deed of trust of even date against the Maryland property. The loan was closed in Maryland.

Chase is a New Jersey corporation, with its principle place of business in New Jersey. It is authorized to transact business in many states (perhaps all states), including Maryland. The note provided for payments on the first day of each month, beginning March 1, 2003, of principle and interest in the amount of $993. The deed of trust further requires payment of certain escrow items, as pertinent here, a monthly amount sufficient to pay real estates taxes and insurance on the secured property, which was calculated at $412 and which is to be deposited into an escrow account out of which Chase is to pay the taxes and insurance as they become due. Thus, at the commencement of the installment obligations, plaintiff was obligated to pay Chase a total of $1,405.95 on the first of each month.

The deed of trust further provides that a payment is deemed received when Chase receives it at the location designated in the note or at such other location as it may direct by proper notice. Chase is authorized to return any payment or partial payment if it is insufficient to bring the loan current. Chase "may accept any payment or partial payment insufficient to bring the Loan current, without waiver of any rights [under the deed of trust] or prejudice to its rights to refuse such payment or partial payments in the future, but [Chase] is not obligated to apply such payments at the time such payments are accepted." Further, Chase is authorized to "hold such unapplied funds until Borrower makes payment to bring the Loan current."

Plaintiff utilized the internet bill paying service through the credit union at his place of employment to make the required payments. For the March 1, 2003 payment, he sent one payment of $703 on February 13, 2003, and another payment of $703 on February 27, 2003. Chase cashed the checks but did not credit them to plaintiff's account until one month later and it assessed plaintiff a late payment fee. For the April 1, 2003 payment, plaintiff sent one check in the amount of $703 on March 20, 2003, and another check in the amount of $703 on March 27, 2003. Chase again cashed the checks but did not credit them to plaintiff's account until one month later and again assessed a late payment fee. For the May 1, 2003 payment, plaintiff sent a check in the amount of $1,406 on April 24, 2003. Chase did not credit plaintiff's account until May 27, 2003, and again assessed a late payment fee. For the June 1, 2003 payment, plaintiff sent a check in the amount of $1,406 on May 23, 2003. Chase cashed the check, but did not promptly credit plaintiff's account, and assessed a late payment fee.

For summary judgment purposes, the trial judge and Chase accepted as true plaintiff's assertions regarding the time and amounts of his payments and the assessment of late fees as set forth above. It was also accepted as true that on two occasions during this time period, as reflected in the records of plaintiff's account furnished to plaintiff by Chase, his payments were placed into a "suspense account."

There is plainly a conflicts of law issue in this case. At the motion hearing, the parties agreed with the motion judge that with respect to the breach of fiduciary duty and breach of covenant of good faith and fair dealing, no conflict exists between the law in Maryland and New Jersey and, accordingly, the law of New Jersey, as the forum state, would apply. On appeal, the parties continue in their agreement on this point. We agree, and with respect to those issues we apply New Jersey law. With respect to the CFA action, a conflicts of law analysis is required, which we will discuss later in this opinion when we address the CFA claim.

II

The motion judge addressed the breach of fiduciary duty claim thusly:

With respect to the breach of fiduciary duty claim, I do believe that the cases in New Jersey, as well as Maryland, are legion in stating that as a general rule there is no fiduciary relationship between a debtor and a creditor, i.e., also a mortgagee and a mortgagor and, therefore, there can be no breach of fiduciary duty claim.

A breach of fiduciary duty claim can only arise in what the Courts generally will say are special circumstance or, perhaps, when the debtor has placed special trust and confidence in the bank.

The plaintiffs allege that there are two facts here that create at least a question of fact as to whether there is some special relationship or whether Mr. Margulies, in fact, placed some special confidence in the bank to give rise to a fiduciary duty. That is the existence of the escrow account and the existence of the suspense account. And, as I said, for the purpose of this motion, I am assuming that Chase improperly put these funds into the suspense account.

For me to hold that the placement of these funds into a suspense account, even if improperly, and into an escrow account for the purpose of paying property taxes on mortgage loans, if I held that those two facts gave rise to a fiduciary duty between a bank and the mortgagor, I would therefore be saying that every single mortgage loan that exists in the entire United States gives rise to a fiduciary relationship between a bank and its customer. I believe that as a matter of law the existence of an escrow account and a suspense account in the context of processing mortgage loans does not, under any circumstances in the typical garden variety home loan situation, which this is, apparently, a refinance, as a matter of law, that cannot give rise to a fiduciary relationship between a bank and its customer. There is nothing here that is alleged that takes this loan out of a garden variety financing of a residence, whether it be an initial financing or a refinancing.

Accordingly, I find that there is no fiduciary relationship that could have arisen between Mr. Margulies and Chase, taking all the facts the most favorable to the plaintiff and I will dismiss that cause of action.

First, we note that the judge correctly applied summary judgment principles, accepting, for purposes of analysis, all facts asserted or disputed by plaintiff in the light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995). Thus, the judge did not act as a factfinder, but applied the law to the facts most favorable to plaintiff. Further, we agree with the judge's legal analysis. "The essence of a fiduciary relationship is that one party places trust and confidence in another who is in a dominant or superior position." F.G. v. MacDonell, 150 N.J. 550, 563 (1997). The relationship arises when one party "is under a duty to act or give advice for the benefit of another on matters within the scope of their relationship." Ibid. Whether or not a fiduciary relationship exists is fact-sensitive. Id. at 563-64.

The general rule is that there are no presumed fiduciary relations between banks and their customers. United Jersey Bank v. Kensey, 306 N.J. Super. 540, 552 (App. Div. 1997), certif. denied, 153 N.J. 402 (1998). The virtually unanimous rule in all jurisdictions is that debtor-creditor relationships "rarely" give rise to a fiduciary duty. Ibid. This is due, in large part, to the adversarial nature of the debtor-creditor relations. Id. at 553.

Plaintiff does not contend that he placed any special trust in Chase. He did not seek advice from Chase. As a borrower, he was a party to an arms-length transaction with a lender, with each party being bound to the other by contractually agreed-upon provisions. Those provisions authorized Chase to collect funds from plaintiff for the payment of taxes and insurance, to hold those funds in escrow, and make the required disbursements when due. This contractual provision, which existed primarily for Chase's benefit to assure preservation of its collateral, did not establish a fiduciary relationship. Likewise, use of the suspense account, even if improperly, for the temporary holding of partial payments by plaintiff was within the contemplation of the loan documents. Again, no fiduciary relationship was established by virtue of these contractual provisions or their implementation. There was, in short, no "special relationship" between these parties that would overcome the presumption against a fiduciary relationship in the lender-borrower context. The breach of fiduciary duty claim was properly dismissed.

III

The count in plaintiff's complaint alleging "Breach of Contract/Breach of Duty of Good Faith and Fair Dealing" plainly sets forth two claims, straight breach of contract and breach of the covenant of good faith and fair dealing. The allegations of that count begin by incorporating by reference all allegations previously set forth in the complaint. Those allegations include, after setting forth the payment and late fee history, that "Chase's failure to credit Plaintiff's account with the payments it has cashed and accepted is a violation [i.e. breach] of the Mortgage." The count goes on to allege that Chase's conduct "constitutes a breach of each Mortgage governing the relations between Defendant and the members of the Class during the relevant time period." The allegation continues: "Further, such conduct is unfair and in violation of Defendant's obligation of good faith and fair dealing owed to Plaintiff and the members of the Class . . . ." (Emphasis added). The count concludes: "By reason of the foregoing breaches of contract, Plaintiff and members of the Class have been damaged in an amount to be determined." (Emphasis added).

In its brief in support of its summary judgment motion, Chase took the position that plaintiff's only claim in this count was that Chase breached an implied obligation of good faith and fair dealing. Chase stated in a footnote that "Plaintiff does not otherwise allege how [Chase] breached the loan agreement. . . . In fact, Plaintiff fails to cite any specific clause in the loan agreement that [Chase] breached, and instead, relies on the theory that [Chase] somehow breached an implied duty of good faith and fair dealing."

In his reply brief, plaintiff asserted that Chase "breached its contract with Plaintiff and other members of the Class, including Defendant's duty of good faith and fair dealing . . . ." (Emphasis added).

The motion judge began the hearing by framing and summarizing the issues before the court. It is very apparent to us that the judge had prepared thoroughly for the hearing and was fully familiar with the pleadings, the motion record, and the arguments advanced by the parties. In the judge's colloquy with Chase's attorney, it is clear that the judge identified the existence of a straight breach of contract claim in addition to the breach of contract claim predicated upon the alleged breach of the duty of good faith and fair dealing. This colloquy ensued:

THE COURT: You've addressed three causes of action. They also have a breach of contract claim.

[CHASE'S ATTORNEY]: Okay.

THE COURT: You don't address that.

[CHASE'S ATTORNEY]: To the extent there is a separate breach of contract claim other than the implied breach of good faith and fair dealing.

[Emphasis added.]

The judge then addressed plaintiff's attorney:

THE COURT: Is there?

[PLAINTIFF'S ATTORNEY]: No, the breach of contract claim is the breach of the duty of good faith and fair dealing.

THE COURT: So there's only three counts?

[PLAINTIFF'S COUNSEL]: Yes.

THE COURT: Okay.

[CHASE'S COUNSEL]: Okay. So, that's my understanding. We have addressed every count that is alleged.

THE COURT: Fine.

Based upon the response from plaintiff's counsel, the judge understandably treated the breach of the covenant of good faith and fair dealing as the only breach of contract claim. At the conclusion of the hearing, the judge dismissed with prejudice all claims as set forth in the complaint and entered an order accordingly. Plaintiff's counsel did not move for reconsideration. However, on appeal, plaintiff insists that it was never his intention to waive the straight contract claim which was plainly asserted in the complaint as acknowledged by the judge at the motion hearing. In plaintiff's appellate reply brief, it is stated that counsel for plaintiff who argued the summary judgment motion has no specific recollection of the colloquy with the court and urges that "[a] more reasonable interpretation is that counsel had understood the court's question to ask whether Chase had challenged anything other than Plaintiff's claim for breach of duty of good faith and fair dealing. Counsel answered that question."

In its appellate brief, Chase takes a twofold position on this issue. First, it argues that the complaint does not state a separate claim for straight breach of contract. For the reasons we have already stated, we reject that argument. Second, Chase argues that plaintiff's counsel waived or abandoned any possible separate claim at the motion hearing.

We resolve the issue this way. We deem this an honest misunderstanding between the parties and the motion judge. After the judge made her ruling and entered her summary judgment order, a motion by plaintiff for reconsideration would have been appropriate and would have cleared up the misunderstanding. What we have referred to as the straight breach of contract claim consists, basically, of the allegation that Chase breached the contract by not crediting payments that were timely made in a timely manner and by improperly charging late fees. Those allegations appear to be undisputed and would constitute a breach of contract. In its appellate brief, Chase off-handedly commented that the dispute between the parties over the payments and late fees are "now resolved." No record citation is given, and our examination of the record does not inform us about whether or not a resolution has been achieved. If it has, perhaps there has been an accord and satisfaction of that claim. In the interest of justice, we conclude that the appropriate disposition of this issue is to remand the matter to the trial court for further proceedings with respect to the straight breach of contract claim.

We next address the breach of covenant of good faith and fair dealing. Plaintiff argues that Chase violated the implied covenant by misapplying his mortgage payments, improperly charging him late fees, and attempting to conceal its activities. The record does not support the concealment contention. And we agree with the motion judge that viewing the facts most favorably to plaintiff, Chase's conduct in misapplying the payments and improperly charging late fees for several months, while it might constitute a straight breach of contract, does not rise to the level of a violation of the implied covenant of good faith and fair dealing.

Every contract in New Jersey contains an implied covenant of good faith and fair dealing. R.J. Gaydos Ins. Agency, Inc. v. Nat'l Consumer Ins. Co., 168 N.J. 255, 276 (2001). See Pickett v. Lloyd's, 131 N.J. 457, 467 (1993); Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 182 (1981); Bak-A-Lum Corp. v. Alcoa Bldg. Prods., Inc., 69 N.J. 123, 129-30 (1976). This covenant requires that "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." Ass'n Group Life, Inc. v. Catholic War Veterans of the U.S., 61 N.J. 150, 153 (1972) (quoting 5 Williston on Contracts 670, at 159-60 (3d ed. 1961)).

Plaintiff relies heavily on Wilson v. Amerada Hess Corp., 168 N.J. 236 (2001). He argues that he is in the same situation as the plaintiffs were there and that he should be entitled to discovery in order to ascertain whether facts exist that might directly or indirectly establish bad faith. However, as we view it, there is a material distinction. In Amerada Hess, it was alleged that the defendant's activities were designed to and capable of destroying the plaintiffs economically, and thus depriving them of the fruits of their contract with the defendant. It was the manner in which the defendant was performing under the terms of the contract that was called into question. Although the defendant had the right under the contract to set prices in its discretion, if it exercised that right in a manner outside the reasonable expectations of the parties, in a manner that would not give reasonable effect to the parties' bargain as expressed in the contract, defendant might well have breached the implied covenant.

That is not the situation here. Chase's conduct did not have the capacity to deprive plaintiff of the fruits of the contract and could not have frustrated or undermined the purpose of the loan agreement. Notwithstanding Chase's actions, even if they were wrongful, plaintiff was not precluded from enjoying the fruits of the contract, namely the $177,500 loan. See Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 203 (App. Div.), certif. denied, 176 N.J. 278 (2003). We find no error in the dismissal of plaintiff's claim for breach of the implied covenant of good faith and fair dealing.

IV

Finally, we address the CFA claim. Resolution of this claim requires a determination of whether New Jersey or Maryland law applies. Chase's primary argument, in the trial court and again on appeal, is that the loan documents contain a choice of law provision, which should be dispositive. In particular, a provision in the deed of trust provides: "This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located. All rights and obligations contained in this Security Instrument are subject to any requirements and limitations of Applicable Law." Thus, according to Chase, the parties expressly agreed that Maryland law would control.

The motion judge was reluctant to determine the issue based upon this contractual provision because the note does not contain a similar provision and, although the note makes reference to the deed of trust it does not expressly incorporate all of the terms of the deed of trust. The judge observed that analysis of the contractual provision might well lead to the conclusion that it does control. However, she found it unnecessary to make that determination because she was firmly convinced that under conflicts of law principles, Maryland law applies.

In our view, it is likely that the contractual provision does control. The note and deed of trust were executed simultaneously and in concert with each other. Each document makes reference to the other, and it is clear that the two documents combined contain the contractual agreement between the parties regarding this mortgage loan.

New Jersey courts will uphold a contractual choice of law provision if the provision does not violate our state's public policy. Instructional Sys., Inc. v. Computer Curriculum Corp., 130 N.J. 324, 341 (1992); Winer Motors, Inc. v. Jaguar Rover Triumph, Inc., 208 N.J. Super. 666, 671-72 (App. Div. 1986); Kalman Floor Co. v. Jos. L. Muscarelle, Inc., 196 N.J. Super. 16, 21-22 (App. Div. 1984), aff'd o.b., 98 N.J. 266 (1985). It would clearly not be contrary to any New Jersey public policy to allow parties entering into a transaction in Maryland regarding a mortgage loan on a Maryland property, where the homeowner is a Maryland resident and the lender is licensed to make such loans in Maryland, to agree to be bound by Maryland law regarding any dispute arising out of the transaction. Nevertheless, we, like the trial judge, are firmly convinced that under conflicts of law principles Maryland law applies in any event, and it is on that basis that we too rest our decision.

In determining which law applies, we apply the flexible "governmental-interest" test, in which we will apply the law of the state with the greatest interest in governing the specific issue underlying the litigation. Veazey v. Doremus, 103 N.J. 244, 247-48 (1986). In making the analysis, we employ a two-prong test. The first prong requires a determination of whether an actual conflict exists between the laws of the competing states. Fu v. Fu, 160 N.J. 108, 118 (1999). If so, the second prong requires a determination of which state has the most significant relationship to the occurrence and the parties with respect to the disputed issue. Id. at 119.

The first prong is plainly satisfied. New Jersey's CFA does not require scienter as an element of proof with respect to affirmative acts by defendants, D'Ercole Sales, Inc. v. Fruehauf Corp., 206 N.J. Super. 11, 21-23 (App. Div. 1985), whereas the Maryland Consumer Protection Act (CPA), Md. Code Ann., Com. Law 13-101 to -501 (West 2005), requires scienter. Luskin's Inc. v. Consumer Prot. Div., 353 Md. 335, 366-67 (1999). Further, actual conflicts exist regarding remedies. New Jersey's CFA entitles a successful claimant to treble damages plus attorney's fees and costs, N.J.S.A. 56:8-19, whereas Maryland's CPA does not provide for treble damages and does not provide for mandatory attorney's fees, but allows for their award in the court's discretion. Md. Code Ann., Com. Law 13-408. It is thus abundantly clear that actual conflicts exist, thus requiring an analysis of the second prong.

To determine which state has the most significant relationship to the occurrence and the parties with respect to the disputed issue, we must "identify the governmental policies underlying the law of each state and how those policies are affected by each state's contacts to the litigation and to the parties." Fu, supra, 160 N.J. at 119 (quoting Veazey, supra, 103 N.J. at 248). The Court identified five factors to guide this determination: (1) the interests of interstate comity; (2) the interests of the parties; (3) the interests underlying the field of tort law; (4) the interests of judicial administration; and (5) the competing interests of the states. Id. at 122.

In making her findings, the motion judge discussed the required analysis, making specific reference to Fu. After concluding that the first prong was satisfied, the judge referenced the factors required in evaluating the second prong. She then stated: "I'm not going to address these factors individually because my basis for my finding is really the same with respect to each of the factors. This is a Maryland loan. It deals with a Maryland resident. It deals with a Maryland piece of property." The judge acknowledged that Chase is incorporated in New Jersey and has its primary place of business in New Jersey, but concluded that under the governmental interest test, upon a weighing of all of the factors, "there is no interest in New Jersey for New Jersey to apply its consumer fraud statute to a Maryland resident regarding a home mortgage on property in Maryland." We agree.

We do not find it necessary to discuss in depth each of the five factors because we do not consider this a close case. We make these brief comments.

In evaluating the interests of interstate comity, we note that the primary policy of each state in enacting a consumer protection statute was to protect the rights of consumers within its state. Thus, application of Maryland law, which would advance the primary purpose of that law to protect its residents, would be in furtherance of Maryland's policy and would not frustrate the policy underlying New Jersey's law.

The interests of the parties require courts to focus on the justified expectations of the parties and their needs for predictability of result. Id. at 123. Clearly, this factor favors Maryland. Parties entering into a transaction in Maryland affecting Maryland real estate would naturally expect Maryland law to apply. This is particularly so where one party is a Maryland resident and the other is licensed to transact that kind of business in Maryland (although incorporated and headquartered in a different state). In this transaction in particular, where the loan documents designate the location of the property as the controlling factor in determining choice of law, this factor weighs heavily in favor of application of Maryland law.

The interests underlying the field of tort law require evaluation and weighing of the fundamental principles of tort law, namely compensation and deterrence. Ibid. The primary purposes of New Jersey's CFA and Maryland's CPA are to protect their resident consumers. Under such circumstances, "the state where the injury occurred, which is often where the plaintiff resides, may have the greater interest in the matter." Ibid. Both laws also contain, at least implicitly, a deterrent purpose. Plaintiff argues that because Chase is incorporated and headquartered in New Jersey it may be (which discovery might reveal) that the alleged improper conduct in the account crediting practices emanated from New Jersey, and New Jersey has an interest in deterring such improper practices by its corporate entities. Even if we accept this potential factual assertion as established, see Brill, supra, 142 N.J. at 540, at best that circumstance would only serve to reduce the weight attributable to this factor, but the factor would still favor Maryland in the balance. This entire analysis is, after all, a qualitative analysis.

The interests of judicial administration factor requires consideration of the relative ease in determination and application of the choice of law of a specific issue, which furthers the values of uniformity and predictability of result. Fu, supra, 160 N.J. at 124. It would be easier for a New Jersey court to apply New Jersey law. However, uniformity and predictability by Maryland consumers and entities conducting lending businesses in Maryland are better served by application of Maryland law. On balance, this factor favors Maryland. Notably, this factor is one of "lesser importance and must yield to a strong state interest implicated by the remaining factors." Ibid.

Finally, the most significant factor is the competing interests of the states. New Jersey's only contact with the transaction, and the dispute arising out of it, is that Chase is incorporated and maintains its principle place of business in New Jersey. Chase conducts its lending business around the country in multiple states where it is licensed to conduct business, including Maryland. It is subject to the licensing and regulatory requirements of each state, which, of course, differ from state to state. Maryland thus has a contact, with respect to this transaction and dispute, with Chase that is equal to or greater than that of New Jersey. Maryland has additional significant contacts that are pertinent to this litigation, namely it is the state of residence of plaintiff, the location of the property affected, the location where the transaction occurred, and the location where the alleged harm occurred. Maryland clearly has a greater interest than New Jersey in assuring that its policies and laws pertaining to mortgage loans on Maryland property involving Maryland property owners are applied. This factor, the most important factor, weighs very heavily in favor of application of Maryland law.

We are satisfied that under New Jersey's governing conflicts of law principles, Maryland law applies to any consumer fraud claim in this case. Because plaintiff's complaint asserted only a claim under New Jersey's CFA, that count was properly dismissed with prejudice. Although the complaint mentioned in passing that Chase's conduct violated the consumer protection statutes of other states, that mention is not sufficient to assert a claim under the consumer protection statutes of any other state. Therefore, no such claim was before the court for consideration.

V

We are satisfied that the case was ripe for summary judgment and that no further discovery was required with respect to plaintiff's claims for breach of fiduciary duty, breach of the covenant of good faith and fair dealing and violation of the CFA. With respect to the straight breach of contract claim, we reverse and remand for further proceedings. In all other respects, we affirm the summary judgment dismissing plaintiff's other claims.

Affirmed in part; reversed and remanded in part.

 

(continued)

(continued)

24

A-4087-03T3

November 7, 2005