INTELLIAN CAPITAL ADVISORS, INC v. DMITRY SUPRUNOV

NOT FOR PUBLICATION WITHOUT THE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-1449-18T3

INTELLIAN CAPITAL
ADVISORS, INC.,

          Plaintiff-Respondent,

v.

DMITRY SUPRUNOV and
GLOBAL CONSULTANTS, LLC,

          Defendants,

and

ANNA SUPRUNOVA,

     Defendant-Appellant.
____________________________

                    Submitted October 2, 2019 – Decided October 17, 2019

                    Before Judges Sabatino and Natali.

                    On appeal from the Superior Court of New Jersey,
                    Chancery Division, Bergen County, Docket No. C-
                    000261-18.
            Carmel, Milazzo & DiChiara LLP, attorneys for
            appellant (Michael D. Nacht, of counsel and on the
            briefs).

            Leon Matchin, attorney for respondent.

PER CURIAM

      Defendant Anna Suprunova appeals from an October 25, 2018 Chancery

Division order that granted plaintiff Intellian Capital Advisors, Inc.'s (Intellian)

request for a preliminary injunction reinstating a disputed mortgage lien. The

court's order also consolidated the Chancery Division action with a separate

pending foreclosure proceeding, and expressly stated that the October 25, 2018

order was "without prejudice to either party's claims or defense[s] in the

foreclosure action."

      We briefly recount the relevant factual background and procedural

history. On June 19, 2010, defendants Anna Suprunova, Dmitry Suprunov, and

Global Consultants, LLC, executed a $3 million promissory note to Intellian.

As security for repayment, defendants executed a mortgage to Intellian,

encumbering Anna Suprunova's and Dmitry Suprunov's marital residence in

Upper Saddle River.

      In April 26, 2018, plaintiff served defendant with a notice of intention to

foreclose on the mortgage. Three months later, on July 26, 2018, Lyudmilia


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Tetylukina executed a written resolution, un-notarized, that identified her as

Intellian's "sole director," and which appointed defendant Anna Suprunova, one

of the three mortgagors, as plaintiff's President, "with full power to act on behalf

of [Intellian]," as authorized by the resolution and the company's articles of

association.

      The resolution also stated that all three defendants were no longer

"indebted to . . . [Intellian] and no amounts are owed under the [m]ortgage, and

the [m]ortgage shall be terminated and removed of record against the

[p]roperty."    The resolution also authorized defendant to "execute the

[d]ischarge" of the mortgage. On the same day the resolution was executed,

defendant filed a discharge of the mortgage and security agreement with the

Bergen County Clerk.

      On August 29, 2018, plaintiff filed a foreclosure action in which it claimed

that defendants Anna Suprunova and Dmitry Suprunov were in the midst of

divorce proceedings which "disturb[ed] the day to day operations" of defendant

Global Consultants, LLC. The complaint further alleged that due to defendants

failure to pay the amounts due under the note, the "whole of the unpaid

principal" was due and owing. In accordance with Rule 4:64-1(a)(2), plaintiff's

counsel appended to the foreclosure complaint a certification of diligent inquiry


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attesting that he communicated with Vladimir Pavlov, plaintiff's Managing

Member, who confirmed the accuracy of the facts in the complaint.

      A month later, on September 28, 2018, plaintiff filed an order to show

cause under the foreclosure docket seeking an order restoring the mortgage and

striking the discharge because "it was recorded under false pretenses."          In

support of its order to show cause, plaintiff's counsel submitted a certification,

which attached certain of plaintiff's corporate documents.       The trial judge

directed that the order to show cause be refiled in the Chancery Division,

General Equity part, under a separate docket number. In a September 28, 2018

order, the court scheduled the return date for the order to show cause for October

25, 2018.

      Plaintiff later amended its foreclosure complaint consistent with its

allegations in the General Equity action to add a fraud and material

misrepresentation count. In its amended foreclosure pleading, plaintiff alleged

that "[defendant] fraudulently misrepresented herself as President of [plaintiff]"

and did not have authority to file the mortgage discharge.

      On the October 25, 2018 return date of plaintiff's order to show cause, the

court heard oral arguments and issued an oral opinion and order that reinstated

the mortgage and consolidated the matter with the pending foreclosure action.


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In its oral decision, the court considered and weighed the factors for issuing a

preliminary injunction under Crowe v. De Gioia,  90 N.J. 126 (1982) and Waste

Mgmt. of N.J., Inc. v. Morris Cty. Mun.,  433 N.J. Super. 445 (App. Div. 2013),

and concluded that interim relief was warranted to maintain the status quo

because "[t]o the extent . . . the property is not subject to a mortgage and steps

are taken to transfer [or] encumber . . . [the] property, that would in fact be

immediate and irreparable harm . . . ."

      On appeal, defendant claims that she filed a proper discharge and the court

erred in reinstating the mortgage because plaintiff failed to support its

application for injunctive relief with competent evidence as required by Rule

1:6-6, and instead relied on inadmissible testimony and inadmissible hearsay

evidence submitted by its counsel. Because the October 25, 2018 order is

interlocutory, and defendant failed to seek leave to appeal as required by Rule

2:2-4, we dismiss the appeal. Even were we to address the merits of defendant's

interlocutory appeal, however, it is clear from our review of the record that the

trial court correctly exercised its discretion in maintaining the status quo by

restoring the mortgage, consolidating the pending complaints, and reserving all

of the parties' claims and defenses.




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      As to the finality of the October 25, 2018 order, in defendant's notice of

appeal and civil case information statement, she represented that all claims

against all parties had been disposed of with finality.         Defendant further

characterized the October 25, 2018 order as a "final disposition" which "was

consolidated with a foreclosure action for housekeeping purposes only." As the

terms of the October 25, 2018 order make clear, however, that order was not

final but represented an interlocutory decision of the court.

      Only final judgments may be appealed as of right. R. 2:2-3(a). In general,

to be considered a final judgment, an order or judgment must dispose of all

claims against all parties. "To have the finality required to create appellate

jurisdiction, an order must not only completely dispose of all pleaded claims as

to all parties, but all its dispositions must also be final." Grow Co. v. Chokshi,

 403 N.J. Super. 443, 460 (App. Div. 2008) (citing Lawler v. Isaac,  249 N.J.

Super. 11, 17 (App. Div. 1991)). If devoid of the required finality, an order is

interlocutory and appellate review is available only by leave granted under Rules

2:2-4 and 2:5-6(a).

      Moreover, interlocutory review is "limited to those exceptional cases

warranting appellate intervention, [and] the sole discretion to permit an

interlocutory appeal has been lodged with the appellate courts." Chokshi, 403


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                                         6 N.J. Super. at 458 (citing Brundage v. Estate of Carambio,  195 N.J. 575, 599–

600 (2008)).     "Interlocutory review is 'highly discretionary' and is to be

'exercised only sparingly' . . . because of the strong policy 'that favors an

uninterrupted proceeding at the trial level with a single and complete review . .

. .'"   Id. at 461 (citation omitted) (quoting S.N. Golden Estates, Inc. v.

Continental Cas. Co.,  317 N.J. Super. 82, 88 (App. Div. 1998)).

        The October 25, 2018 order granting plaintiff's request for injunctive

relief and reinstating the mortgage was not a final judgment. The court expressly

recognized as such when it consolidated the matter with the pending foreclosure

action and reserved all parties' claims and defenses. Thus, when the notice of

appeal was filed, plaintiff's claims against defendants under the amended

foreclosure complaint, and those alleged against defendant in the General Equity

action, as well as defendant Anna Suprunova's claim that the debt was

discharged, were not settled by way of a final judgment.

        With respect to defendant's substantive challenges to the court's October

25, 2018 order, we find defendant's arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). As noted, we

conclude the trial court properly considered plaintiff's request for injunctive

relief under the Crowe factors, as informed by our decision in Waste Mgmt., and


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correctly exercised its discretion to reinstate the mortgage, subject to subsequent

proceedings where the parties' respective claims and defenses could be fully

litigated. In reaching its conclusion, the court prevented the potential sale of the

property to a third party until the court could address plaintiff's challenges to the

mortgage discharge. We find no error in the court's decision.

      Although we agree with defendant that much of the evidence presented by

plaintiff by way of its counsel's certification did not constitute competent

evidence, see Rule 1:6-6; Deutsche Bank Nat'l Trust Co. v. Mitchell,  422 N.J.

Super. 214, 226 (App. Div. 2011) ("Attorneys in particular should not certify to

facts within the primary knowledge of their clients."), the documents submitted

by defendant created a sufficient basis to justify restoring and reinstating the

mortgage. Indeed, as noted, the un-notarized July 26, 2018 resolution was

signed by Lyudmilia Tetylukina, plaintiff's alleged sole director. The order to

show cause record does not explain her relationship to the parties, or why

plaintiff named defendant as its President, particularly considering she was an

obligor under the note secured by her personal residence. Further, neither the

resolution, nor defendant's certification, contained any documents evidencing or

explaining the amount due on the note, if it was paid by any of the mortgagors,

or why plaintiff would discharge a $3 million obligation.


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        In addition, the resolution and discharge was executed and filed a mere

three months after plaintiff served a notice of intention to foreclose. And,

despite the alleged authority of defendant to discharge the mortgage, plaintiff

nevertheless filed a foreclosure complaint one month later, which was approved

by Vladimir Pavlov, plaintiff's purported Managing Member.

      We make no determination in our decision as to the propriety of any of

the aforementioned transactions. We only conclude that the October 25, 2018

order was not final, and in any event, the court's decision merely to reinstate a

disputed mortgage discharge, subject to further proofs, was a correct exercise of

its discretion.

      Dismissed.




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