MONROE CENTER II URBAN RENEWAL COMPANY, LLC v. STRATEGIC PERFORMANCE FUND-II INC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0909-09T3

MONROE CENTER II URBAN RENEWAL

COMPANY, LLC, DILAWEZ HODA,

GERARD SADDEL, JR., and MONROE

CENTER III URBAN RENEWAL

COMPANY, LLC,

Plaintiffs,

v.

STRATEGIC PERFORMANCE FUND-II,

INC.,

Defendant.

________________________________________

APPLIED MONROE LENDER, LLC,

Counterclaim Plaintiff-Respondent,

v.

MONROE CENTER II URBAN RENEWAL

COMPANY, LLC, GERARD SADDEL, JR., and

MONROE CENTER III URBAN RENEWAL COMPANY,

LLC,

Counterclaim Defendants,

and

DILAWEZ HODA,

Counterclaim Defendant-Appellant.

__________________________________________

December 29, 2010

Submitted September 22, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Hudson County, Docket No. C-52-08.

Meaghan Tuohey-Kay, attorney for appellant.

Gibbons P.C., attorneys for respondent (Frederick W. Alworth and Elyssa Kay, on the brief).

PER CURIAM

Plaintiff/counterclaim-defendant Dilawez Hoda appeals from the trial court order granting summary judgment in favor of counterclaimant Applied Monroe Lender, LLC (AML).1 In granting summary judgment, Judge Thomas P. Olivieri found Hoda jointly and severally liable for the repayment of funds advanced by Strategic Peformance Fund-II, Inc. (SPF) to Monroe Center II Urban Renewal Corporation, LLC (Monroe II). We affirm.

The facts underlying the dispute arise out of the default on a construction loan issued to Monroe II. Monroe II was part of a five-phase real estate development project in Hoboken, collectively known as Monroe Center. Hoda and plaintiff/counterclaim-defendant Gerard Saddel, Jr. were each fifty percent holders of membership interests in Monroe II.

On July 20, 2005, Monroe II, as borrower, and Sovereign Bank (Sovereign), as lender, entered into a construction loan agreement in which Sovereign agreed to loan Monroe II up to $41 million for the construction of improvements for Phase II of the project. The loan was secured by a mortgage on real estate located at 630 8th Street in Hoboken. On that same date, in conjunction with the Sovereign loan, SPF agreed to loan Monroe II $12 million for the principal mezzanine part (Mezzanine Loan) of Phase II.

To secure payment of the Mezzanine Loan, Monroe II executed loan documents. In addition, SPF required that Hoda and Saddel execute a "Carveout Guaranty" agreement in which each agreed, as guarantors of the Mezzanine Loan, among other conditions, that "[a]s a condition precedent to Lender[]s making the Loan, Lender has required that Guarantors enter into this Guaranty to unconditionally guarantee payment to Lender of the Guaranteed Obligations (as herein defined)."

The agreement further provided:

Each Guarantor hereby consents and agrees to each of the following, and agrees that none of such Guarantor's obligations under this Guaranty shall be released, diminished, impaired, reduced or adversely affected by any of the following, and waive any common Law, equitable, statutory or other rights (including, without limitation, rights to notice) which such Guarantor might otherwise have as a result of or in connection with any of the following:

. . . .

(b) The insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of Borrower, Guarantors or any other party at any time liable for the payment of all or part of the Guaranteed obligations; or any dissolution of Borrower, Guarantors or any other Loan Party; or any sale, lease or transfer of any or all of the assets of Borrower, Guarantors or any other Loan Party; or any changes in the shareholders, partners or members of Borrower or any other Loan Party; or any reorganization of Borrower or any other Loan Party.

The obligations of Hoda and Saddel under the Carveout
Guaranty also included their agreement to be personally liable on the loan in the event certain "recourse events" occurred. The definition of "recourse events" triggering their guaranty obligations included the filing of "voluntary bankruptcy or insolvency proceedings" by any party to the loan documents.

Monroe II defaulted on the loan in January 2008. The following month, SPF purchased the Sovereign loan along with the first mortgage on the 630 8th Street property. It subsequently assigned all of its rights, claims and interest as lender to SPF Monroe Center Lender, LLC (SPF Lender), which in turn assigned all of its rights, claims, and interests under the loan documents to AML.

AML commenced an action in Superior Court against Hoda and Saddel under the Carveout Guaranty, arguing that the bankruptcy filing by Monroe II triggered their personal guarantees under the Carveout Garanty. AML subsequently moved for summary judgment seeking a declaration that Hoda was jointly and severally liable for the repayment of what had accumulated to $23,369,195.55 at the time the motion was filed.2 In opposing the motion, Hoda argued that AML was not entitled to a judgment holding him personally liable for repayment of the loan because it had breached its duty of good faith and fair dealing. Further, Hoda urged that the ipso facto clause termination rule, found under 11 U.S.C. 365(e)(1) of the Bankruptcy Code, precluded enforcement of the Carveout Guaranty. Following oral argument on the motion, Judge Olivieri rejected Hoda's argument, concluding that Hoda failed to raise a genuinely disputed issue of fact demonstrating a breach of the duty of good faith and fair dealing by AML and that 365(e) protection precluding the imposition of personal liability against a debtor did not extend to Hoda. The present appeal followed.

On appeal, Hoda argues that summary judgment was improperly

granted because he is entitled to protections under 365(e) and that AML's commencement of default proceedings based upon its failure to complete the construction by September 2007 was evidence of its bad faith since an additional agreement extended the time for completion of the project to February 2009.

When reviewing a grant of summary judgment, we employ the same standards used by the motion judge, who grants summary judgment if the record demonstrates that "there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See Burnett v. Gloucester County Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App. Div. 2009); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has shown that there are no genuine disputes as to material facts, and then we determine whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

After carefully considering the record and briefs in accordance with the applicable legal principles, we are satisfied that none of these arguments have merit. R. 2:11-3(e)(1)(E). We affirm, substantially for the reasons set forth in Judge Olivieri's comprehensive and well-reasoned oral opinion of September 10, 2009. We add the following comments.

11 U.S.C. 365 provides:

(e)(1) Notwithstanding a provision in an executory contract or unexpired lease, or in applicable law, an executory contract or unexpired lease of the debtor may not be terminated or modified, and any right or obligation under such contract or lease may not be terminated or modified, at any time after the commencement of the case solely because of a provision in such contract or lease that is conditioned on -

(A) the insolvency or financial condition of the debtor at any time before the closing of the case;

(B) the commencement of a case under this title; or

(C) the appointment of or taking possession by a trustee in a case under this title or a custodian before such commencement.

Citing Liberty Mutual Insurance Company v. Greenwich Insurance Company, 286 F. Supp. 2d 73 (D. Mass. 2003), aff'd, 417 F.3d 193 (1st Cir. 2005), Judge Olivieri concluded that under 365(e),

Mr. Hoda is not protected from personal liability on the basis of Monroe II's bankruptcy filing . . . . Mr. Hoda is not a bankruptcy debtor, but is a guarantor of the subject loan. AML has established its contractual right to proceed against Mr. Hoda in his personal capacity as guarantor under the plain terms of the carveout agreement.

The court distinguished In the Matter of Rose, 29 B.R. 272 (D. N.J. 1982), upon which Hoda relied, by noting that unlike the creditors in that case, who were fully secured by their collateral, there was no evidence that AML "would be fully protected on the basis of its interests in Monroe II or that enforcement of the carveout agreement will lead to any unconscionable windfall to AML."

We agree with the trial court's conclusion that the protections afforded to debtors under 365(e) do not extend to AML. However, we reach this conclusion not solely because of AML's status as a non-debtor as the trial court found. Rather, also significant is the fact that the Carveout Agreement represents "an independent obligation" of Hoda which "happens to have been triggered" by Monroe II's default and resort to bankruptcy. Liberty Mutual Ins. Co., supra, 417 F.3d at 199.

Similarly, we are also in complete agreement with Judge Olivieri's conclusion that Hoda's claim that AML breached its duty of good faith and fair dealing is unsupported by facts sufficient to defeat summary judgment. Hoda points to the notice of default letter to Monroe II dated September 13, 2007, as evidence of AML's bad faith. Specifically, Hoda claims that this action was taken despite the fact that no payments were due on the Mezzanine Loan until the January 20, 2008 maturity date, and the remedial plan set forth in the First Loan Amendment executed on March 2, 2006 extended the time period for receiving a "No Further Action" letter from the Department of Environmental Protection until February 28, 2009.

First, Hoda, as part of its opposition to summary judgment, did not dispute that it was in default of obligations, other than interest payments on the loan. Hoda did not dispute that as of the date of the Notice of Default letter, construction under Phase II had not been completed in accordance with the Loan Agreement by July 31, 2007. Second, the "No Further Action" letter related solely to the remediation efforts undertaken in connection with the project. Finally, even assuming the Notice of Default letter was issued precipitously, there is no evidence in the record that the Mezzanine Loan was accelerated before the January 20, 2008 due date. As Judge Olivieri observed: "Mr. Hoda does not describe how the notice of sale precipitated the demise of Monroe II, nor does he point to any evidence demonstrating an adverse impact on Monroe II's business resulting from SPF's actions." Consequently, the court properly dismissed Hoda's claim that AML breached the covenant of good faith and fair dealing.

1 By consent order dated February 20, 2009, Applied Monroe Lender, LLC was substituted for Strategic Performance Fund-II, Inc. as counterclaim plaintiff and was granted "the sole right to pursue the [c]ounterclaim." Also, while Appellate Division opinions do not normally reflect counterclaims, the February 20, 2009 consent order directs that "all pleadings filed herein" shall denote Applied Monroe Lender, LLC as "counterclaim plaintiff." In addition, as a result of summary judgment being granted on November 22, 2008, in favor of defendant Strategic Performance Fund-II, Inc. and against all plaintiffs, only the counterclaims remain viable.

2 Summary judgment was also earlier sought and granted in favor of AML against Saddel, who is not a party to this appeal.