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MON-L-001522-22 04/10/2023 2:36:59 PM Pglof6 Trans ID: LCV20231226336
MELLINGER KARTZMAN LLC
ATTORNEYS AT LAW
101 GIBRALTAR DRIVE
SUITE 2F
MORRIS PLAINS, N.J. 07950
(973) 267-0220
LOUIS P. MELLINGER FAX (973) 267-3979
STEVEN P. KARTZMAN
JOSEPH R. ZAPATA, JR.
JUDAH B. LOEWENSTEIN
SEYMOUR RUDENSTEIN (1933-1983) E-Mail: wluger7@gmail.com
JACOB MELLINGER (1928-2001)
OF COUNSEL
WALTER G. LUGER
PETER ROSEN
ROBERT D. ROSEN April 10, 2023
Via E-Courts
Hon. Owen C. McCarthy, J.S,C,
Monmounth County Courthouse Fortune Funding Concierge, LLC.., et al.
Freehold, New Jersey v. Louis Mercatanti, et al.
Docket No. MON-L- 1522-22
Plaintiffs’ Reply Brief In Further Support
Of Their Motion For Reconsideration
Motion Return Date: April 14, 2023
Dear Judge McCarthy:
This firm represents the Plaintiffs, Fortune Funding Concierge, LLC.,
(“Fortune Funding”), and Mark Jones, (“Jones”) in this matter (jointly referred to
as “FF/Jones”). The Defendants are Louis Mercatanti and Nassau Marina
Holdings, Inc, (“Nassau Defendants” “Defendants,” or “Nassau/Mercatanti”).
Please accept this letter Reply Letter Brief in further support of the Motion for
Reconsideration of the Court's Summary Judgment decision made on February
28, 2023. For the reasons set forth in its comprehensive moving brief and for the
additional reasons set forth herein, it is respectfully requested (a) that the Court
vacate the premature grant of summary judgment dismissing the Complaint and
(b) that the Court provide the Plaintiffs leave to amend their Complaint as set
forth herein, and (c) that the permit the discovery period reopen until July 3, 2023
as is presently set forth in an earlier Order.
This letter Reply Brief is written in a different format from those briefs filed
by FF/Jones in this matter. Perhaps this Reply Brief will provide the Court with a
new vantage point or view in reconsidering the premature granting of Summary
Judgment to Defendants on February 28, 2023. The Plaintiffs’ incorporate by
reference herein the certified facts set forth in the present Motion for
Reconsideration.
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A. The Defendants’ First Preliminary Argument or Position Is Untrue
The Preliminary Statement set forth in the Reconsideration Opposition
Brief filed by Nassau/Mercatanti is a sham. The reconsideration “overview” made
by Nassau/Mercatanti incorrectly states that the only issue on reconsideration
involves a simple discovery request or requests. This view, respectfully, is
entirely incorrect and very misleading. Anyone making a fair reading of the
Plaintiffs’ comprehensive Reconsideration Motion would have a hard time
recognizing this preliminary statement as being anywhere close to being
accurate and fair.
In fact, the true state of affairs is that Mercatanti signed a written fee
Agreement with Fortune Funding and Taub in April 2000. A true copy is attached
to the Luger Certification as Exhibit A. Mercatanti designated Fortune Funding
and Taub as the co-brokers of record charged with being the exclusive
representatives of Nassau/Mercatanti. The Agreement prepared by Mercatanti,
visited so much confidence in Taub and Fortune Funding that Mercantai
promised to pay them 1.5% each of the gross amount of the loan financing
eventually obtained. A huge loan in the amount of $10.5 million was eventually
obtained and the Agreement was never modified by the parties.
After doing the math, Taub was entitled to a commission of about $164k
and Fortune Funding was entitled to separate1.5% commission of another
$164k. (Agreement). For reasons that Nassau/Mercatanti never disclosed and
tried to hide from Taub and FF/Jones, Nassau/Mercatanti decided that they
would unilaterally and significantly reduce the commission amounts to be paid to
Taub and FF. After the September 2020 loan financing closing took place,
Defendants paid FF the significantly reduced sum of only $41,500 as a
commission. This left the remaining promised but unpaid commission still owed
by the Defendants to Plaintiffs at about $122,500.00.
As for Taub, they must have really done something wrong! Instead of the
significantly reduced commission paid to Plaintiffs, Nassau/Mercatanti unilaterally
reduced Taub’s contractual commission to $7,500. Taub rejected this paltry
amount as grossly unacceptable and subsequently filed suit against
Nassau/Mercatanti in federal court for breach of contract, breach of the implied
covenant, and conversion, among other counts, to recover the over $120k in
commissions owed. Taub also sued the other parties to the transaction on a
number of different theories.
In fact, during discovery in the Taub federal lawsuit, FF/Jones has no
record of having received a copy of the limited discovery the Defendants
provided to Taub. Also, it was suspicious that that it took Taub several extra
months to obtain the loan documents (presumably easily available from Nassau’s
own Fortune 200 loan closing firm) and the loan refinancing documents from
Defendants. Unfortunately, Taub no longer has access to these discovery
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documents produced to them by Nassau/Mercatanti and FF/Jones is probably
happy to hear this because it would disclose much about the fraud and
concealment the Defendants visited on FF/Jones and other parties. And,
Nassau’s recent premature summary judgment motion was filed with discovery
incomplete, a request for additional discovery was made, and the discovery end
date of on or about July 2, 2023 has still not expired.
At all times relevant, FF/Jones needed to complete discovery to get to the
bottom of what really happened to its still unpaid commission amount of about
$122,500.00. Indeed, if the discovery had been permitted by the Court, the
Plaintiffs may well have moved to amend their Complaint to allege fraud,
concealment, and similar claims. Although FF/Jones is not 100% certain, it
certainly seems that fraud claims may well indeed make the real estate Statute in
issue to be rendered irrevelant because fraud vitiates the entire transaction and
should have provided a direct access to what FF/Jones believe really happened
in this matter.
FF/Jones respectfully submits that the Court should vacate its February
28, 2023 Summary judgment Order granted in favor of Mercatanti/Nassu, permit
the Plaintiffs to amend their claims to include fraud and equitable fraud, and to
further pursue their present claims of promissory and equitable estoppel, and
waiver. The Plaintiffs also request that the Court permit discovery to remain open
at least until the current discovery end date on about about July 3, 2023 --- so
that Plaintiffs can complete the discovery that is very important and is absolutely
required for the Plaintiffs them to prove their claims against Nassau/Mercatanti.
B. The Second Paragraph of Nassau/Mercatanti’s Reply Statement Is
False And Should Be Disregarded by The Court
The second paragraph of the Defendants’ Preliminary Statement is also a
sham. Despite the time and effort that FF/Jones put into their comprehensive
moving reconsideration brief and papers, Nassau/Mercatanti has the gall to state
that FF/Jones has failed to comply with the requirements of Rule 4:42-9. Not
surprisingly, like almost every other defense counsel in New Jersey,
Nassau/Mercatanti hides behind having to do any real work about how and in
what specific respects the reconsideration motion rehashes old arguments.
Nassau/Mercatanti also has another trick up its sleeve which it fails to tell the
Court. That is, it is not permissible to introduce completely new arguments that
could have been raised before any reconsideration motion was filed. Once again,
the Defendants have crafted another catch-22 situation. First, they claim the
reconsideration arguments are a rehash of arguments already made. Second,
they also claim the reconsideration arguments are barred because they involve
new matters which are not supposed to be raised on reconsideration. It is
requested that the Court be on guard for these dual traps on reconsideration and
focus instead on the bona fide arguments made by FF/Jones.
Cc The Defendants’ Argument That Even With More Discovery, The
Plaintiffs Cannot Overcome The “Absolute” Bar Of The Statute Is Also
False
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Respectfully, our Supreme and Appellate Courts have stated that when,
as here, a premature summary judgment motion has been filed based on
incomplete discovery, trial courts should be very cautious in granting summary
judgment. In Friedman v. Martinez, 242 N.J. 449, 472-43 (2020), our Supreme
Court practically dictated to trial courts that “[i]t is inappropriate to grant summary
judgment when discovery is incomplete and critical facts are peculiarly within the
moving party's knowledge.” Despite that the fact that discovery is still open until
July of 2023, the Court violated the directive in Friedman and ignored the fact
that “critical facts are still peculiarly within the knowledge of Nassau/Mercatanti.”
Essentially, the Court improperly disregarded long-settled principles of discovery
by “calling the ball game in the 5" inning,” when there were still 4 more innings
left to be played. The Court, respectfully, reached the wrong result by focusing in
the “shiny object” presented by Nassau (i.e., the Statute), instead of staying
focused on the fundamentals of this suit concerning breach of contract, fraud, the
cheating by Nassau/Mercatanti, and by permitting discovery run its course.
The “shiny object” referred to is the Defendants’ incorrect position that the
Statute says what the Statute says and it is a complete and to total bar to any
recovery by FF/Jones. This argument is false on several levels. First, discovery
from the Nassau/Defendants into the Defendants’ material breaches of its
Agreement with Taub and Fortune Funding is sure to bring bad news to
Nassau/Mercatanti and to further set the stage that to prove FF/Jones was
defrauded by Defendants in September 2020. Second, further discover will
elaborate on the Defendants’ efforts to defraud and to cheat FF/Jones and
others. Third, further discovery will reveal the remaining links in the chain to
prove that the Nassau Defendants were estopped from using the Statute in 2023
because they intentionally cheated the Plaintiffs in 2020 and the Defendants
were charged with knowledge of the Statute in 2020 and thereafter. Fourth, the
additional discovery will likely demonstrate that due to their unclean hands and
bad faith, that the fraud-producing defendants waived their rights to use the
Statute as a bar to the recovery of additional commissions in 2023. It will also
bring into focus how the Defendants were able cheat the Plaintiffs and Taub
without providing any meaningful explanation.
Fifth, and perhaps most exciting, is that Nassau/Mercatanti have
refocused this litigation upon the Statue instead of the rights of FF/Jones and
their ability to prosecute their claims for another $122,500 that is due to them.
However, the Defendants’ 4 shiny object” is nowhere near a 100% bar to the
Plaintiffs several claims for additional commissions. A quick look at Sammarone
shows that the so-called slam-dunk Statute is already riddled with at least one
equitable exception developed in Sammarone wherein the Plaintiffs’ contend
they too qualify for this exception. Like the young but cheated broker in
Sammarone, the court held that the Statute barred his claims for a real estate
commission, But, seeing to right a gross injustice, the Sammarone court created
narrow equitable relief so that the young broker could still move forward in
attempting to prove his entitlement to the commission he had been cheated from
obtaining. Like the young broker, FF/Jones was cheated in 2000 but was refused
the equitable Sammarone exception provided to the young broker. Both the
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young broker and FF/Jones were cheated by the adverse party and FF/Jones
should have just as much of an opportunity as the young broker to use the
judicially created Sammarone exception.
Simply stated, the Statute is not a complete bar to the prosecution of this
suit. If it were, then why did the Court in Sammarone hold that even though the
Statute barred a cheated but unlicensed broker from attempting to collect a real
estate commission, the court nevertheless created a narrow exception to permit
an equitable remedy for the unlicensed broker. Sixth, if the Legislature took any
issue with Sammarone, it could have easily closed the Sammarone exception but
chose not to do so.
The Defendants attempt to belittle, distinguish, and otherwise discredit
the Sammarone decision is made because they are afraid that if full discovery
was permitted, the Plaintiffs would be able to obtain evidence to further
substantiate their claim that they were duped or cheated by Nassau/Mercatanti in
2020. The Defendants know that they intentionally breached their written
agreement with Plaintiffs dated in April of 2020 and signed by Mercatanti as
President of Nassau and also by Taub and Fortune Funding as the co-exclusive
brokers of record who were appointed by Mercatanti. He also promised to pay
Taub a 1.5% commission and Fortune Funding another 1.5% on the gross
amount of the loan eventually obtained (which was $10.5 million dollars). After
doing the math, Nassau/Mercatanti were each owed but never paid $164k that
each of them had earned.
C. The Defendants, Nassau Mercatanti Are Not Entitled To Any
Sanctions Because FF/Jones And Its Lawyer Still Have A Reasonable Good
Faith Belief In The Merits Of Their Legal Position
As previously noted at length, a reasonably good faith belief in the merits
of one’s position does not permit any award of attorney's fees and expenses.
This disallows FF/Jones from obtaining any attorney's fees and costs in this
reconsideration motion. In fact, it appears to be the Defendants’ main defense
that its argument is the winning one and the Plaintiffs position relying on
Sammarone is the losing and therefore frivolous argument. Despite being
completely manipulative and close minded, defense counsel knows that in
litigation, parties make opposing arguments to which the other party disagrees.
But, just because the Defendants do not believe in the Sammarone exception
this does not make one argument frivolous and the other on firm ground.
In comment 2 to Rule 1:4-8, Judge Pressler has stated:
To assert a paper is frivolous does not make it so. Advocates often use
Rule 11 to intimidate their adversaries. In filing a motion for sanctions,
the attorney signing the paper also certifies that it is not being used for
an improper purpose, such as intimidation. Threatening the use of the
rule but not filing the motion is also an intimidation practice.
This having been said, the Plaintiffs have grown tiresome of the
MON-L-001522-22 04/10/2023 2:36:59 PM Pg6of6 Trans ID: LCV20231226336
Defendants efforts to intimidate them by threatening sanctions that are false or ill-
founded, or fail to respect the rights of FF/Jones to raise its good faith legal
arguments. By continually going back to the “sanctions well” in this contested
matter is abusive to FF/Jones, is harassing, unduly increases litigation costs, and
is improper intimidation and sanctionable discovery misconduct. If this
misconduct continues, the Plaintiffs will have no choice but to file an appropriate
disciplinary complaint.
Lastly, for defense counsel to argue that the Jones’s moving Certification
on reconsideration was presented solely for delay is inexcusable. There is no
competent evidence to support this ridiculous position. That defense counsel
says that something is so does not make it true. The Opposition Certification was
not filed for a frivolous, delaying, or any improper purpose. In fact, FF/Jones and
their counsel still certify that they continue to have a reasonable good faith belief
in the merits of their position and no sanctions are warranted.
CONCLUSION
For these additional reasons it is respectfully requested that the Court
vacate its February 28, 2023 Summary Judgment Decision, Permit the Plaintiffs
to amend their Complaint, and Reopen discover until at least July 3, 2023
Respectfully submitted,
MELLINGER KARTZMAN, LLC.
Attorneys for Plaintiffs
a
Bi
WALTER G. LUGER, ESQ
MON-L-001522-22 04/10/2023 2:36:59 PM Pglof5 Trans ID: LCV20231226336
MELLINGER KARTZMAN, LLC.
Walter G. Luger, Esq. (033821984)
101 Gibraltar Drive, Suite 2F
Morris Plains, New Jersey 07950
(973) 267-0330
Attorneys for Plaintiffs
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: MONMOUTH COUNTY
FORTUNE FUNDING CONCIERGE,
INC. AND MARK JONES,
Plaintiffs,
Docket No. MON-L-001522-22
Vv.
LOUIS MERCATANTI AND NASSAU REPLY CERTIFICATION OF
MARINA HOLDINGS, LLC., PLAINTIFFS’ COUNSEL IN FURTHER
SUPPPORT OF PLAINTIFFS’ MOTION
Defendants. FOR RECONSIDERATION
WALTER G. LUGER, ESQ., of full age, deposes and states:
MON-L-001522-22 04/10/2023 2:36:59 PM Pg2of5 Trans ID: LCV20231226336
1 | am an attorney at law of the State of New Jersey and | am Of
Counsel to the law firm of Mellinger Kartzman, LLC. located in Morris
Plains, New Jersey.
2 | have personal knowledge about the facts involved in this lawsuit
and of the facts set forth herein.
3. | submit this Certification in further support of the Plaintiffs’ Motion
for Reconsideration of the February 28, 2023 Summary Judgment Decision
4 | have attached hereto a true and accurate copy of the written
Agreement prepared by Mercatanti and Signed By Him in April 29, 2020.
CERTIFICATION
MON-L-001522-22 04/10/2023 2:36:59 PM Pg3o0f5 Trans ID: LCV20231226336
| certify that the foregoing statements made by me are true. | am
aware that if any of the foregoing statements made by me is willfully false |
am subject to punishment.
a
WALTERG. LUGER, ESQ.
Dated: April 10, 2023
MON-L-001522-22 04/10/2023 2:36:59 PM Pg4of5 Trans ID: LCV20231226336
EXHIBIT A
MON-L-001522-22 04/10/2023 2:36:59 PM Pg5Sof5 Trans ID: LCV20231226336
Case 3:21-cv-00712-MAS-LHG Document 67-1 Filed 02/25/22 Page 13 of 15 PagelD: 746
AUTHORIZATION AND FEE AGREEMENT LETTER
Dated: April
29, 2020 |
To Whom It May Concern, David Paylor and Mark Jones,
Please be advised that we are currently in search of commercial financing for our business
and or real
estate projects involving our marinas located at 3245 Route 35 South, Lavallette, NJ 08735 and 700
Baramore Ave, Lanoka Harbor, NJ 08734 (the “Loan Collaterat”) and have agreed that Bruce
F. Taub,
P.A., a Maryland corporation, and Fortune Funding Concierge LUC (the “Co-Correspondents”)
are
collectively exclusively authorized to communicate and forward any and all documentation
on our
behalf that may be required in consideration for approval of any loan program for which we may be
a
candidate {the “Loan”)}.
We acknowledge and agree that there are no assurances that the submission of an application, any
and
ail supporting information and or application fees required by you will result in loan approval and
neither will receipt of a'term sheet from you and further that there have been no representations
or
warranties made to us by any party, to the contrary.
We further acknowledge and agree that we have and will continue to engage, at our
own cost and
expense, independent legal counsel and advice regarding the risks and costs associated with
the Loan
before accepting and closing on any such loan transaction. Further, we acknowledge and agree that
despite the role of Co-Correspondents in this transaction, they may be compensated
by you, the lender,
for closing this transaction and that after consulting with legal counsel, we knowingly waive
any
potential conflict that this compensation arrangement may present. Further, in recognition
of the time
and effort spent by the Co-Correspondents on this matter on our behalf, we also
acknowledge and agree
that we are obligated to pay the Co-Correspondents a combined success fee equal to 3% of
the gross
loan amount divided equally between the Co-Correspondents (the “CC Fee”) and that
the CC Fee shall
be due and paid outside of, but simultaneously with, the funding of the Loan and shall be sent
by wire
transfer pursuant to Instructions provided by each Co-Correspondent. Furthermo
re, in the event we fail
to pay the CC Fee as provided herein, we agree to pay interest on the CC Fee amount
equal to 1.5%
monthly until the CC Fee is paid in full and shall pay all costs of collection, including but
not limited to,
attomeys’ fees.
i
/ ¢
Signed by:
Louis F Mercatanti, the duly authorized President of Nassau Marina Holdings LUC
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MELLINGER KARTZMAN, LLC.
Walter G. Luger, Esq. (033821984)
101 Gibraltar Drive, Suite 2F
Morris Plains, New Jersey 07950
(973) 267-0330
Attorneys for Plaintiffs
SUPERIOR COURT OF NEW JERSEY
FORTUNE FUNDING CONCIERGE, LAW DIVISION: MONMOUTH
INC. AND MARK JONES, COUNTY
Plaintiffs,
Vv. Docket No. MON-L-001522-22
LOUIS MERCATANTI AND NASSAU
MARINA HOLDINGS, LLC.,
PROOF OF SERVICE
Defendants.
WALTER G. LUGER, ESQ.., of full age, certifies as follows:
1 | am the attorney of record for the Defendants commonly referred to as FF/Jones
(i.e., Fortune Funding and Mark Jones).
2 | have personal knowledge about the facts set forth herein.
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3 On Monday, April 10, 2023, | caused the following documents to be filed via E-
COURTS: (1) Luger Opposition Cert; (2) Pls.’ Letter Reply Brief; and (3) this Proof of
Service.
4 Counsel of record for Nassau/Mercatanti should be automatically served
through the E-Courts system. .
CERTIFICATION
| certify that the foregoing statements made by me are true. | am aware that if any of the
foregoing statements made by me are willfully false, | am subject to punishment.
—S
WALTER G. LUGER, ESQ.
Dated: April 10, 2023
Preview
MON-L-001522-22 04/10/2023 2:36:59 PM Pglof6 Trans ID: LCV20231226336 MELLINGER KARTZMAN LLC ATTORNEYS AT LAW 101 GIBRALTAR DRIVE SUITE 2F MORRIS PLAINS, N.J. 07950 (973) 267-0220 LOUIS P. MELLINGER FAX (973) 267-3979 STEVEN P. KARTZMAN JOSEPH R. ZAPATA, JR. JUDAH B. LOEWENSTEIN SEYMOUR RUDENSTEIN (1933-1983) E-Mail: wluger7@gmail.com JACOB MELLINGER (1928-2001) OF COUNSEL WALTER G. LUGER PETER ROSEN ROBERT D. ROSEN April 10, 2023 Via E-Courts Hon. Owen C. McCarthy, J.S,C, Monmounth County Courthouse Fortune Funding Concierge, LLC.., et al. Freehold, New Jersey v. Louis Mercatanti, et al. Docket No. MON-L- 1522-22 Plaintiffs’ Reply Brief In Further Support Of Their Motion For Reconsideration Motion Return Date: April 14, 2023 Dear Judge McCarthy: This firm represents the Plaintiffs, Fortune Funding Concierge, LLC., (“Fortune Funding”), and Mark Jones, (“Jones”) in this matter (jointly referred to as “FF/Jones”). The Defendants are Louis Mercatanti and Nassau Marina Holdings, Inc, (“Nassau Defendants” “Defendants,” or “Nassau/Mercatanti”). Please accept this letter Reply Letter Brief in further support of the Motion for Reconsideration of the Court's Summary Judgment decision made on February 28, 2023. For the reasons set forth in its comprehensive moving brief and for the additional reasons set forth herein, it is respectfully requested (a) that the Court vacate the premature grant of summary judgment dismissing the Complaint and (b) that the Court provide the Plaintiffs leave to amend their Complaint as set forth herein, and (c) that the permit the discovery period reopen until July 3, 2023 as is presently set forth in an earlier Order. This letter Reply Brief is written in a different format from those briefs filed by FF/Jones in this matter. Perhaps this Reply Brief will provide the Court with a new vantage point or view in reconsidering the premature granting of Summary Judgment to Defendants on February 28, 2023. The Plaintiffs’ incorporate by reference herein the certified facts set forth in the present Motion for Reconsideration. MON-L-001522-22 04/10/2023 2:36:59 PM Pg2of6 Trans ID: LCV20231226336 A. The Defendants’ First Preliminary Argument or Position Is Untrue The Preliminary Statement set forth in the Reconsideration Opposition Brief filed by Nassau/Mercatanti is a sham. The reconsideration “overview” made by Nassau/Mercatanti incorrectly states that the only issue on reconsideration involves a simple discovery request or requests. This view, respectfully, is entirely incorrect and very misleading. Anyone making a fair reading of the Plaintiffs’ comprehensive Reconsideration Motion would have a hard time recognizing this preliminary statement as being anywhere close to being accurate and fair. In fact, the true state of affairs is that Mercatanti signed a written fee Agreement with Fortune Funding and Taub in April 2000. A true copy is attached to the Luger Certification as Exhibit A. Mercatanti designated Fortune Funding and Taub as the co-brokers of record charged with being the exclusive representatives of Nassau/Mercatanti. The Agreement prepared by Mercatanti, visited so much confidence in Taub and Fortune Funding that Mercantai promised to pay them 1.5% each of the gross amount of the loan financing eventually obtained. A huge loan in the amount of $10.5 million was eventually obtained and the Agreement was never modified by the parties. After doing the math, Taub was entitled to a commission of about $164k and Fortune Funding was entitled to separate1.5% commission of another $164k. (Agreement). For reasons that Nassau/Mercatanti never disclosed and tried to hide from Taub and FF/Jones, Nassau/Mercatanti decided that they would unilaterally and significantly reduce the commission amounts to be paid to Taub and FF. After the September 2020 loan financing closing took place, Defendants paid FF the significantly reduced sum of only $41,500 as a commission. This left the remaining promised but unpaid commission still owed by the Defendants to Plaintiffs at about $122,500.00. As for Taub, they must have really done something wrong! Instead of the significantly reduced commission paid to Plaintiffs, Nassau/Mercatanti unilaterally reduced Taub’s contractual commission to $7,500. Taub rejected this paltry amount as grossly unacceptable and subsequently filed suit against Nassau/Mercatanti in federal court for breach of contract, breach of the implied covenant, and conversion, among other counts, to recover the over $120k in commissions owed. Taub also sued the other parties to the transaction on a number of different theories. In fact, during discovery in the Taub federal lawsuit, FF/Jones has no record of having received a copy of the limited discovery the Defendants provided to Taub. Also, it was suspicious that that it took Taub several extra months to obtain the loan documents (presumably easily available from Nassau’s own Fortune 200 loan closing firm) and the loan refinancing documents from Defendants. Unfortunately, Taub no longer has access to these discovery MON-L-001522-22 04/10/2023 2:36:59 PM Pg3o0f6 Trans ID: LCV20231226336 documents produced to them by Nassau/Mercatanti and FF/Jones is probably happy to hear this because it would disclose much about the fraud and concealment the Defendants visited on FF/Jones and other parties. And, Nassau’s recent premature summary judgment motion was filed with discovery incomplete, a request for additional discovery was made, and the discovery end date of on or about July 2, 2023 has still not expired. At all times relevant, FF/Jones needed to complete discovery to get to the bottom of what really happened to its still unpaid commission amount of about $122,500.00. Indeed, if the discovery had been permitted by the Court, the Plaintiffs may well have moved to amend their Complaint to allege fraud, concealment, and similar claims. Although FF/Jones is not 100% certain, it certainly seems that fraud claims may well indeed make the real estate Statute in issue to be rendered irrevelant because fraud vitiates the entire transaction and should have provided a direct access to what FF/Jones believe really happened in this matter. FF/Jones respectfully submits that the Court should vacate its February 28, 2023 Summary judgment Order granted in favor of Mercatanti/Nassu, permit the Plaintiffs to amend their claims to include fraud and equitable fraud, and to further pursue their present claims of promissory and equitable estoppel, and waiver. The Plaintiffs also request that the Court permit discovery to remain open at least until the current discovery end date on about about July 3, 2023 --- so that Plaintiffs can complete the discovery that is very important and is absolutely required for the Plaintiffs them to prove their claims against Nassau/Mercatanti. B. The Second Paragraph of Nassau/Mercatanti’s Reply Statement Is False And Should Be Disregarded by The Court The second paragraph of the Defendants’ Preliminary Statement is also a sham. Despite the time and effort that FF/Jones put into their comprehensive moving reconsideration brief and papers, Nassau/Mercatanti has the gall to state that FF/Jones has failed to comply with the requirements of Rule 4:42-9. Not surprisingly, like almost every other defense counsel in New Jersey, Nassau/Mercatanti hides behind having to do any real work about how and in what specific respects the reconsideration motion rehashes old arguments. Nassau/Mercatanti also has another trick up its sleeve which it fails to tell the Court. That is, it is not permissible to introduce completely new arguments that could have been raised before any reconsideration motion was filed. Once again, the Defendants have crafted another catch-22 situation. First, they claim the reconsideration arguments are a rehash of arguments already made. Second, they also claim the reconsideration arguments are barred because they involve new matters which are not supposed to be raised on reconsideration. It is requested that the Court be on guard for these dual traps on reconsideration and focus instead on the bona fide arguments made by FF/Jones. Cc The Defendants’ Argument That Even With More Discovery, The Plaintiffs Cannot Overcome The “Absolute” Bar Of The Statute Is Also False MON-L-001522-22 04/10/2023 2:36:59 PM Pg4of6 Trans ID: LCV20231226336 Respectfully, our Supreme and Appellate Courts have stated that when, as here, a premature summary judgment motion has been filed based on incomplete discovery, trial courts should be very cautious in granting summary judgment. In Friedman v. Martinez, 242 N.J. 449, 472-43 (2020), our Supreme Court practically dictated to trial courts that “[i]t is inappropriate to grant summary judgment when discovery is incomplete and critical facts are peculiarly within the moving party's knowledge.” Despite that the fact that discovery is still open until July of 2023, the Court violated the directive in Friedman and ignored the fact that “critical facts are still peculiarly within the knowledge of Nassau/Mercatanti.” Essentially, the Court improperly disregarded long-settled principles of discovery by “calling the ball game in the 5" inning,” when there were still 4 more innings left to be played. The Court, respectfully, reached the wrong result by focusing in the “shiny object” presented by Nassau (i.e., the Statute), instead of staying focused on the fundamentals of this suit concerning breach of contract, fraud, the cheating by Nassau/Mercatanti, and by permitting discovery run its course. The “shiny object” referred to is the Defendants’ incorrect position that the Statute says what the Statute says and it is a complete and to total bar to any recovery by FF/Jones. This argument is false on several levels. First, discovery from the Nassau/Defendants into the Defendants’ material breaches of its Agreement with Taub and Fortune Funding is sure to bring bad news to Nassau/Mercatanti and to further set the stage that to prove FF/Jones was defrauded by Defendants in September 2020. Second, further discover will elaborate on the Defendants’ efforts to defraud and to cheat FF/Jones and others. Third, further discovery will reveal the remaining links in the chain to prove that the Nassau Defendants were estopped from using the Statute in 2023 because they intentionally cheated the Plaintiffs in 2020 and the Defendants were charged with knowledge of the Statute in 2020 and thereafter. Fourth, the additional discovery will likely demonstrate that due to their unclean hands and bad faith, that the fraud-producing defendants waived their rights to use the Statute as a bar to the recovery of additional commissions in 2023. It will also bring into focus how the Defendants were able cheat the Plaintiffs and Taub without providing any meaningful explanation. Fifth, and perhaps most exciting, is that Nassau/Mercatanti have refocused this litigation upon the Statue instead of the rights of FF/Jones and their ability to prosecute their claims for another $122,500 that is due to them. However, the Defendants’ 4 shiny object” is nowhere near a 100% bar to the Plaintiffs several claims for additional commissions. A quick look at Sammarone shows that the so-called slam-dunk Statute is already riddled with at least one equitable exception developed in Sammarone wherein the Plaintiffs’ contend they too qualify for this exception. Like the young but cheated broker in Sammarone, the court held that the Statute barred his claims for a real estate commission, But, seeing to right a gross injustice, the Sammarone court created narrow equitable relief so that the young broker could still move forward in attempting to prove his entitlement to the commission he had been cheated from obtaining. Like the young broker, FF/Jones was cheated in 2000 but was refused the equitable Sammarone exception provided to the young broker. Both the MON-L-001522-22 04/10/2023 2:36:59 PM Pg5of6 Trans ID: LCV20231226336 young broker and FF/Jones were cheated by the adverse party and FF/Jones should have just as much of an opportunity as the young broker to use the judicially created Sammarone exception. Simply stated, the Statute is not a complete bar to the prosecution of this suit. If it were, then why did the Court in Sammarone hold that even though the Statute barred a cheated but unlicensed broker from attempting to collect a real estate commission, the court nevertheless created a narrow exception to permit an equitable remedy for the unlicensed broker. Sixth, if the Legislature took any issue with Sammarone, it could have easily closed the Sammarone exception but chose not to do so. The Defendants attempt to belittle, distinguish, and otherwise discredit the Sammarone decision is made because they are afraid that if full discovery was permitted, the Plaintiffs would be able to obtain evidence to further substantiate their claim that they were duped or cheated by Nassau/Mercatanti in 2020. The Defendants know that they intentionally breached their written agreement with Plaintiffs dated in April of 2020 and signed by Mercatanti as President of Nassau and also by Taub and Fortune Funding as the co-exclusive brokers of record who were appointed by Mercatanti. He also promised to pay Taub a 1.5% commission and Fortune Funding another 1.5% on the gross amount of the loan eventually obtained (which was $10.5 million dollars). After doing the math, Nassau/Mercatanti were each owed but never paid $164k that each of them had earned. C. The Defendants, Nassau Mercatanti Are Not Entitled To Any Sanctions Because FF/Jones And Its Lawyer Still Have A Reasonable Good Faith Belief In The Merits Of Their Legal Position As previously noted at length, a reasonably good faith belief in the merits of one’s position does not permit any award of attorney's fees and expenses. This disallows FF/Jones from obtaining any attorney's fees and costs in this reconsideration motion. In fact, it appears to be the Defendants’ main defense that its argument is the winning one and the Plaintiffs position relying on Sammarone is the losing and therefore frivolous argument. Despite being completely manipulative and close minded, defense counsel knows that in litigation, parties make opposing arguments to which the other party disagrees. But, just because the Defendants do not believe in the Sammarone exception this does not make one argument frivolous and the other on firm ground. In comment 2 to Rule 1:4-8, Judge Pressler has stated: To assert a paper is frivolous does not make it so. Advocates often use Rule 11 to intimidate their adversaries. In filing a motion for sanctions, the attorney signing the paper also certifies that it is not being used for an improper purpose, such as intimidation. Threatening the use of the rule but not filing the motion is also an intimidation practice. This having been said, the Plaintiffs have grown tiresome of the MON-L-001522-22 04/10/2023 2:36:59 PM Pg6of6 Trans ID: LCV20231226336 Defendants efforts to intimidate them by threatening sanctions that are false or ill- founded, or fail to respect the rights of FF/Jones to raise its good faith legal arguments. By continually going back to the “sanctions well” in this contested matter is abusive to FF/Jones, is harassing, unduly increases litigation costs, and is improper intimidation and sanctionable discovery misconduct. If this misconduct continues, the Plaintiffs will have no choice but to file an appropriate disciplinary complaint. Lastly, for defense counsel to argue that the Jones’s moving Certification on reconsideration was presented solely for delay is inexcusable. There is no competent evidence to support this ridiculous position. That defense counsel says that something is so does not make it true. The Opposition Certification was not filed for a frivolous, delaying, or any improper purpose. In fact, FF/Jones and their counsel still certify that they continue to have a reasonable good faith belief in the merits of their position and no sanctions are warranted. CONCLUSION For these additional reasons it is respectfully requested that the Court vacate its February 28, 2023 Summary Judgment Decision, Permit the Plaintiffs to amend their Complaint, and Reopen discover until at least July 3, 2023 Respectfully submitted, MELLINGER KARTZMAN, LLC. Attorneys for Plaintiffs a Bi WALTER G. LUGER, ESQ MON-L-001522-22 04/10/2023 2:36:59 PM Pglof5 Trans ID: LCV20231226336 MELLINGER KARTZMAN, LLC. Walter G. Luger, Esq. (033821984) 101 Gibraltar Drive, Suite 2F Morris Plains, New Jersey 07950 (973) 267-0330 Attorneys for Plaintiffs SUPERIOR COURT OF NEW JERSEY LAW DIVISION: MONMOUTH COUNTY FORTUNE FUNDING CONCIERGE, INC. AND MARK JONES, Plaintiffs, Docket No. MON-L-001522-22 Vv. LOUIS MERCATANTI AND NASSAU REPLY CERTIFICATION OF MARINA HOLDINGS, LLC., PLAINTIFFS’ COUNSEL IN FURTHER SUPPPORT OF PLAINTIFFS’ MOTION Defendants. FOR RECONSIDERATION WALTER G. LUGER, ESQ., of full age, deposes and states: MON-L-001522-22 04/10/2023 2:36:59 PM Pg2of5 Trans ID: LCV20231226336 1 | am an attorney at law of the State of New Jersey and | am Of Counsel to the law firm of Mellinger Kartzman, LLC. located in Morris Plains, New Jersey. 2 | have personal knowledge about the facts involved in this lawsuit and of the facts set forth herein. 3. | submit this Certification in further support of the Plaintiffs’ Motion for Reconsideration of the February 28, 2023 Summary Judgment Decision 4 | have attached hereto a true and accurate copy of the written Agreement prepared by Mercatanti and Signed By Him in April 29, 2020. CERTIFICATION MON-L-001522-22 04/10/2023 2:36:59 PM Pg3o0f5 Trans ID: LCV20231226336 | certify that the foregoing statements made by me are true. | am aware that if any of the foregoing statements made by me is willfully false | am subject to punishment. a WALTERG. LUGER, ESQ. Dated: April 10, 2023 MON-L-001522-22 04/10/2023 2:36:59 PM Pg4of5 Trans ID: LCV20231226336 EXHIBIT A MON-L-001522-22 04/10/2023 2:36:59 PM Pg5Sof5 Trans ID: LCV20231226336 Case 3:21-cv-00712-MAS-LHG Document 67-1 Filed 02/25/22 Page 13 of 15 PagelD: 746 AUTHORIZATION AND FEE AGREEMENT LETTER Dated: April 29, 2020 | To Whom It May Concern, David Paylor and Mark Jones, Please be advised that we are currently in search of commercial financing for our business and or real estate projects involving our marinas located at 3245 Route 35 South, Lavallette, NJ 08735 and 700 Baramore Ave, Lanoka Harbor, NJ 08734 (the “Loan Collaterat”) and have agreed that Bruce F. Taub, P.A., a Maryland corporation, and Fortune Funding Concierge LUC (the “Co-Correspondents”) are collectively exclusively authorized to communicate and forward any and all documentation on our behalf that may be required in consideration for approval of any loan program for which we may be a candidate {the “Loan”)}. We acknowledge and agree that there are no assurances that the submission of an application, any and ail supporting information and or application fees required by you will result in loan approval and neither will receipt of a'term sheet from you and further that there have been no representations or warranties made to us by any party, to the contrary. We further acknowledge and agree that we have and will continue to engage, at our own cost and expense, independent legal counsel and advice regarding the risks and costs associated with the Loan before accepting and closing on any such loan transaction. Further, we acknowledge and agree that despite the role of Co-Correspondents in this transaction, they may be compensated by you, the lender, for closing this transaction and that after consulting with legal counsel, we knowingly waive any potential conflict that this compensation arrangement may present. Further, in recognition of the time and effort spent by the Co-Correspondents on this matter on our behalf, we also acknowledge and agree that we are obligated to pay the Co-Correspondents a combined success fee equal to 3% of the gross loan amount divided equally between the Co-Correspondents (the “CC Fee”) and that the CC Fee shall be due and paid outside of, but simultaneously with, the funding of the Loan and shall be sent by wire transfer pursuant to Instructions provided by each Co-Correspondent. Furthermo re, in the event we fail to pay the CC Fee as provided herein, we agree to pay interest on the CC Fee amount equal to 1.5% monthly until the CC Fee is paid in full and shall pay all costs of collection, including but not limited to, attomeys’ fees. i / ¢ Signed by: Louis F Mercatanti, the duly authorized President of Nassau Marina Holdings LUC MON-L-001522-22 04/10/2023 2:36:59 PM Pglof2 Trans ID: LCV20231226336 MELLINGER KARTZMAN, LLC. Walter G. Luger, Esq. (033821984) 101 Gibraltar Drive, Suite 2F Morris Plains, New Jersey 07950 (973) 267-0330 Attorneys for Plaintiffs SUPERIOR COURT OF NEW JERSEY FORTUNE FUNDING CONCIERGE, LAW DIVISION: MONMOUTH INC. AND MARK JONES, COUNTY Plaintiffs, Vv. Docket No. MON-L-001522-22 LOUIS MERCATANTI AND NASSAU MARINA HOLDINGS, LLC., PROOF OF SERVICE Defendants. WALTER G. LUGER, ESQ.., of full age, certifies as follows: 1 | am the attorney of record for the Defendants commonly referred to as FF/Jones (i.e., Fortune Funding and Mark Jones). 2 | have personal knowledge about the facts set forth herein. MON-L-001522-22 04/10/2023 2:36:59 PM Pg2of2 Trans ID: LCV20231226336 3 On Monday, April 10, 2023, | caused the following documents to be filed via E- COURTS: (1) Luger Opposition Cert; (2) Pls.’ Letter Reply Brief; and (3) this Proof of Service. 4 Counsel of record for Nassau/Mercatanti should be automatically served through the E-Courts system. . CERTIFICATION | certify that the foregoing statements made by me are true. | am aware that if any of the foregoing statements made by me are willfully false, | am subject to punishment. —S WALTER G. LUGER, ESQ. Dated: April 10, 2023