CARMINE P. AMELIO v. ROBERT GORDON

NOT FOR PUBLICATION WITHOUT THE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-2802-15T4

CARMINE P. AMELIO,

        Plaintiff-Appellant,

v.

ROBERT GORDON, ROBERT
MACALLISTER, and RUSHMORE
CAPITAL PARTNERS, LLC,

     Defendants-Respondents.
_____________________________

              Submitted December 12, 2017 – Decided January 25, 2018

              Before Judges Gilson and Mayer.

              On appeal from Superior Court of New Jersey,
              Law Division, Hudson County, Docket No.
              L-0980-14.

              Carmine P. Amelio, appellant pro se.

              Sheikh Partners, PC, attorneys for respondents
              (Umar A. Sheikh, of counsel and on the brief).

PER CURIAM

        Plaintiff Carmine Amelio appeals from orders dated June 30,

2015, and October 23, 2015, that dismissed his complaint for lack

of standing.       He also appeals from orders dated October 23, 2015,
and   January    8,    2016,    that     denied   his    motions    to   vacate    the

dismissal.      We are constrained to vacate the orders dismissing the

complaint for lack of standing because the current record does not

support dismissal on that ground.                 Thus, we remand for further

proceedings.

                                           I.

      The complaint was dismissed on an in limine motion based on

a review of the complaint and the loan documents referenced in the

complaint.      Thus, we take the facts as pled by plaintiff and read

them in the light most favorable to plaintiff.                    See, e.g., Green

v. Morgan Props., 
215 N.J. 431, 452 (2013) ("[P]laintiffs are

entitled   to    every    reasonable       inference      of   fact."    (citations

omitted)); Cho v. Trinitas Reg'l Med. Ctr., 
443 N.J. Super. 461,

471 (App. Div. 2015) (holding that an in limine motion to dismiss

a plaintiff's claim is subject to the rules governing summary

judgment   motions).           Indeed,    on    this    appeal,    defendants     have

accepted the facts and procedural history as recited by plaintiff.

      Plaintiff owns an apartment building in Hoboken, consisting

of five condominium units.             Sometime before July 2009, plaintiff

contacted defendant Rushmore Capital Partners, LLC (Rushmore) to

obtain a loan.        Plaintiff dealt with defendants Robert Gordon and

Robert McAllister, who are principals at Rushmore.                        Plaintiff

contends that he was seeking a loan of several hundred thousand

                                           2                                A-2802-15T4
dollars so that he could finish construction work on three of the

units, as well as the common areas of the building.                   Plaintiff

also asserts that Gordon and McAllister directed him to establish

a corporate entity for the purpose of obtaining a commercial loan

from Rushmore.

     On July 17, 2009, plaintiff registered a business entity in

New Jersey under the name Ironhouse, LLC (Ironhouse).                   Shortly

thereafter, on July 30, 2009, Ironhouse took a loan from Rushmore.

The loan documents consisted of a promissory note (Note) and

mortgage and security agreement (Mortgage).             Both the Note and

Mortgage     were   signed   by   plaintiff   as    "MANAGING    MEMBER"       of

Ironhouse.      The record contains only excerpts of the Note and

Mortgage.1

     The parties did not tell us the current status of the loan

or whether the Note or Mortgage are in default. Instead, plaintiff

alleges that the loan fees and interest payments on the loan exceed

the amount allowable under New Jersey usury law. Plaintiff further

contends     that   defendants    fraudulently     convinced    him    to   form




1
  The record contains only pages one and four of the Note, and the
cover page and page thirty-seven of the Mortgage.          In his
complaint, plaintiff initially states that the loan was for
$790,000. Later in the complaint, however, plaintiff states that
the loan was for $350,000. The excerpts from the Note and Mortgage
state that the loan was for $790,000.

                                      3                                 A-2802-15T4
Ironhouse to take a commercial loan so that they could charge him

usurious fees and interest.

     In March 2014, plaintiff, who is self-represented, filed a

complaint against defendants.             The complaint asserted two counts,

alleging    that    defendants      (1)    "violated          applicable    civil   and

criminal    usury    laws,"   and    (2)       engaged    in     fraud.     Plaintiff

contended that he was suing in his individual capacity, and

Ironhouse was not named as a party to the complaint.

     In    June     2014,   defendants         filed     an    answer     denying   the

allegations of usury and fraud.            Defendants also asserted several

affirmative defenses, but those defenses did not include lack of

standing.    Nor did defendants seek to join Ironhouse.

     The matter was listed for trial on June 24, 2015.                       Two days

before that date, defendants filed three in limine motions seeking

to (1) strike plaintiff's demand for a jury trial, (2) dismiss the

claims against Gordon and McAllister, and (3) substitute Ironhouse

as plaintiff, require Ironhouse to obtain legal counsel, and

prohibit plaintiff's "personal appearance."                     Plaintiff requested

an adjournment and objected to the timing of defendants' in limine

motions.    Plaintiff claims that he was informed that the motions

would not be heard because they were filed late, and his request

for an adjournment was denied.            The matter was then assigned to a

judge for trial.

                                           4                                   A-2802-15T4
      When the parties appeared before the trial judge, defendants'

counsel raised the in limine motions.            The court heard limited

arguments on those motions.            During those arguments, defense

counsel contended that plaintiff did not have standing to pursue

the claims in his complaint.          Although neither party had briefed

that issue, and although defense counsel did not cite any law to

support the standing argument, the court considered the argument.

Ultimately, the court took a break to review the law on standing.

The   court     then   came    back   and   dismissed   without    prejudice

plaintiff's complaint for lack of standing.             The court did not

cite to any law in support of its ruling.          Instead, it noted that

plaintiff might have standing as the managing member of Ironhouse

or as an interested party, if Rushmore was to sue Ironhouse in the

future.

      Defense    counsel      thereafter    submitted   a   form   of     order

dismissing the complaint with prejudice.           The court entered that

order on June 30, 2015.         Plaintiff filed a motion to vacate the

June 30, 2015 order.       Plaintiff also filed a motion to recuse the

judge who entered that order.         The judge heard arguments on those

motions on October 23, 2015, and denied both motions in orders

dated the same day.        The judge entered an additional order, also

dated October 23, 2015, amending the June 30, 2015 dismissal order

to a dismissal without prejudice.

                                       5                                A-2802-15T4
      Plaintiff    filed     a    second         motion    to     vacate   the    orders

dismissing his complaint and to recuse the trial judge who entered

those orders.      A different judge considered that second motion

because the first judge had been reassigned to another division.

Apparently without hearing oral argument, on January 8, 2016, the

second judge entered an order that struck out the relief requested

by plaintiff and stated:

            Judge [] reconsidered his June 30, 2015 order
            once and signed his October 23, 2015 order
            converting   the   previous   dismissal   with
            prejudice to a dismissal without prejudice.
            [Plaintiff]   may   seek  to   reinstate   the
            heretofore dismissed complaint or appeal [the]
            October 23, 2015 order. Judge [] is no longer
            assigned to the Civil Division and has already
            reconsidered this matter once.

      Plaintiff filed a notice appealing the orders entered on June

30, 2015, October 23, 2015, and January 8, 2016.                           We granted

plaintiff's motion to file his appeal as within time.

                                         II.

      On appeal, plaintiff makes three arguments, contending that

(1)   he   has   standing,       (2)   the       trial    court    erred   in    hearing

defendants' untimely in limine motions, and (3) his due process




                                             6                                   A-2802-15T4
rights   were   violated.2   Because   we   hold   that   plaintiff   had

standing, we reverse and remand for further proceedings.

     "Standing 'refers to the plaintiff's ability or entitlement

to maintain an action before the court.'"      In re Adoption of Baby

T, 
160 N.J. 332, 340 (1999) (quoting N.J. Citizen Action v. Riviera

Motel Corp., 
296 N.J. Super. 402, 409 (App. Div. 1997)). "Standing

is a threshold requirement for justiciability." Watkins v. Resorts

Int'l Hotel & Casino, Inc., 
124 N.J. 398, 421 (1991).        New Jersey

courts liberally grant a litigant standing to sue.           Jen Elec.,

Inc. v. Cty. of Essex, 
197 N.J. 627, 645 (2009).      Generally, there

is standing if the party seeking relief has a sufficient personal

stake in the controversy to assure adverseness, and the controversy

is capable of resolution by the court.      Bondi v. Citigroup, Inc.,


423 N.J. Super. 377, 436-37 (App. Div. 2011).

     Here, defendants frame the standing issue in light of the

loan documents, which are the Note and Mortgage.      They essentially

contend that the loan was made to Ironhouse, which, as a limited

liability corporation, is not permitted to "plead or set up the

defense of usury to any action brought against it to recover


2
  Plaintiff initially argued that defendants waived the standing
defense, but in his reply brief, plaintiff correctly conceded that
standing cannot be waived. R. 4:6-2; R. 4:6-7; see also Watkins
v. Resorts Int'l Hotel & Casino, Inc., 
124 N.J. 398, 417-18 (1991)
("Standing, like jurisdiction, involves a threshold determination
of the court's power to hear the case.").

                                  7                              A-2802-15T4
damages    or    enforce      a    remedy       on     any    obligation     [that      it]

executed[.]"      
N.J.S.A. 31:1-6.              Additionally, defendants argue

that individual endorsers or guarantors of a corporate loan––like

plaintiff––do not have standing to assert usury as a defense to a

commercial obligation.            Selengut v. Ferrara, 
203 N.J. Super. 249,

258-59 (App. Div. 1985).

     Over sixty years ago, however, our Supreme Court held that

an individual can recover usury payments on a loan made to a

corporation      if     the   individual         can       prove   that    the      lender

fraudulently caused the individual to create the corporation as a

device to evade the usury laws.                 Gelber v. Kugel's Tavern, Inc.,


10 N.J. 191, 196 (1952).            In Gelber, the lender loaned money to a

corporate entity that was created solely to execute that commercial

loan.    The corporation, thereafter, defaulted on the loan, and the

lender    sued    the    corporation.                The     individual    owner     filed

counterclaims     against         the   lender,       contending    that    the     lender

fraudulently advised him to create the corporation to subvert the

usury laws.      Specifically, he testified that the lender told him

that it would not give him a loan in his individual capacity, but

if he formed a corporation, it would lend money to the corporation.

While the lender disputed that contention, the Court held that

those conflicting claims presented jury questions of whether the

loan was made to the individual, and whether the corporation was

                                            8                                      A-2802-15T4
created at the insistence of the lender to cloak a usurious

transaction.   Gelber, 
10 N.J. at 196-97.

     Following the Court's decision in Gelber, New Jersey courts

have consistently recognized that a lender cannot evade the usury

laws by using a corporate shell to cloak a loan that, in effect,

is actually being made to an individual borrower. In re Greenberg,


21 N.J. 213, 220 (1956); Selengut, 
203 N.J. Super. at 256-57;

Spiotta v. Shelter Cove Estates, 
68 N.J. Super. 457, 467 (App.

Div. 1961); Feller v. Architects Display Bldgs., Inc., 
54 N.J.

Super. 205, 212 (App. Div. 1959).    If, however, the corporation

is not a shell and was not formed solely to cloak the loan, then

the individual will not be allowed to assert usury.   Selengut, 
203 N.J. Super. at 256-57.

     Here, defendants are correct that plaintiff cannot assert

individual claims based on alleged breaches of the        Note and

Mortgage.   Read in the light most favorable to plaintiff, however,

plaintiff's complaint can be understood to assert a claim that he

was fraudulently induced into creating Ironhouse as a way for

Rushmore to subvert the usury laws.         If he can prove facts

supporting that claim, he may be entitled to relief.

     We emphasize that we were provided with a very limited record.

As previously noted, we do not have the complete Note or Mortgage.

There may be defenses available to defendants in those documents.

                                 9                          A-2802-15T4
On the current record, however, we cannot affirm the holding that

plaintiff had no standing to assert any claim against defendants.

     In light of our holding on the standing issue, plaintiff's

arguments concerning the untimeliness of defendants' in limine

motions are moot.   We also find that his arguments concerning due

process are not viable in light of our remand.      The complaint

shall be reinstated, and the case shall be rescheduled for trial.

     Reversed and remanded.   We do not retain jurisdiction.




                                10                         A-2802-15T4