Preview
BER-L-004906-21 02/16/2024 2:57:51 PM Pg 1 of 2 Trans ID: LCV2024427869
Attorney ID: 030492005
CLARK GULDIN
Attorneys At Law
20 Church Street – Suite 15
Montclair, New Jersey 07042
973.314.1967
Attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC
SUPERIOR COURT OF NEW JERSEY
BARBARA TROCANO and LAW DIVISION: BERGEN COUNTY
EDCOST I, LLC, CIVIL PART
Plaintiffs Docket No.: BER-L-4906-21
v.
GLEN STEVENS, CAROLINA
STEVENS, MICHAEL POOLE,
STEVEN POOLE, CENTURY 21 NOTICE OF MOTION FOR ENTRY OF
SOLID REALTY COMPANY, CTA FINAL JUDGMENT BY DEFAULT
TITLE SERVICE, LLC, INC., JOHN
DOE I, II, and XYZ CORPORATION I,
II
Defendants
TO: Joseph F. Ottino, Jr., Esq.
Ottino & Fuggi Law, LLC
721 Brick Boulevard Suite C
Brick, NJ 08723
Attorneys for Defendants,
Michael Poole, Steven Poole, Solid Gold Realty LLC
d/b/a Century 21 Solid Gold Realty Inc.,
Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC
and CTA Title Service LLC
PLEASE TAKE NOTICE that on March 15, 2024, at 9:00 a.m. in the forenoon or as
soon thereafter as counsel may be heard, the undersigned, attorneys for Plaintiffs, Barbara
Trocano and Edcost I (“Plaintiffs”), LLC, will move before the Honorable Gregg A. Padovano,
J.S.C., at the Bergen County Justice Center, 10 Main Street, Hackensack, NJ 070601 pursuant to
R. 4:43-2, for entry of final judgment by default against defendants Michael Poole, Steven Poole,
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Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a
Century 21 Solid Gold Realty LLC and CTA Title Service LLC, jointly and severally, and for
such other relief as the Court deems to be just and proper.
PLEASE TAKE FURTHER NOTICE that in support of the motion, Plaintiffs shall
rely on the Certification of Arthur M. Owens, Esq. with attached exhibits, Certification of
Barbara Trocano with attached exhibits, Certification of Russell Trocano, Esq., with attached
exhibits, and Brief submitted herewith.
PLEASE TAKE FURTHER NOTICE that, pursuant to R. 1:6-2(a), a proposed form of
order is being submitted herewith.
PLEASE TAKE FURTHER NOTICE that pursuant to R. 1:6-2 and R. 4:43-2, request
is hereby made for a ruling on the papers, unless opposition is filed, in which case Plaintiffs
request oral argument.
CLARK GULDIN
Attorneys for Plaintiffs, Barbara Trocano
and Edcost I, LLC
By:/s/ Arthur M. Owens _
Dated: February 16, 2024 Arthur M. Owens, Esq.
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CLARK GULDIN
Attorneys At Law
20 Church Street – Suite 15
Montclair, New Jersey 07042
973.314.1967
Attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC
SUPERIOR COURT OF NEW JERSEY
BARBARA TROCANO AND LAW DIVISION: BERGEN COUNTY
EDCOST I, LLC, CIVIL PART
Plaintiffs Docket No.: BER-L-4906-21
v.
GLEN STEVENS, CAROLINA
STEVENS, MICHAEL POOLE,
STEVEN POOLE, CENTURY 21 FINAL JUDGMENT BY DEFAULT
SOLID REALTY COMPANY, CTA
TITLE SERVICE, LLC, INC., JOHN
DOE I, II, and XYZ CORPORATION I,
II
Defendants
THIS MATTER having been opened to the Court by motion on behalf of Plaintiffs,
Barbara Trocano and Edcost I, LLC, through her counsel, Clark Guldin Attorneys at Law, seeking
an Order, pursuant to Rule 4:43-2, for final judgment by default against defendants, Michael Poole,
Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty
LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC; and the Court having
considered said motion, and the proofs and arguments submitted in support thereof and any
opposition thereto; and the Court being of the opinion that the relief sought in the motion should
be granted; and for good cause shown;
IT IS on this ________ day of _______________________ 2024,
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ORDERED that the motion by Plaintiffs for default judgment against defendants, Michael
Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold
Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC, is hereby
GRANTED; and it is further,
ORDERED that a Final Judgment by Default be and is hereby entered pursuant to Rule
4:43-2 in favor of Plaintiffs, Barbara Trocano and Edcost I, LLC, against Defendants, Michael
Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold
Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC, jointly and
severally, in the principal sum of $__________________________; and it is further,
ORDERED that a Final Judgment by Default be and is hereby entered in favor of
Plaintiffs, Barbara Trocano and Edcost I, LLC, against Defendants, Michael Poole, Steven Poole,
Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a
Century 21 Solid Gold Realty LLC and CTA Title Service LLC, jointly and severally, in the
additional amount of attorneys’ fees and costs incurred by Plaintiffs in the sum of
$__________________________; and it is further,
ORDERED that sanctions in the amount of $__________________ are entered against of
Joseph F. Ottino, Jr., Esq. and Ottino & Fuggi Law, jointly and severely, and said sanctions shall
be paid to Plaintiffs, Barbara Trocano and Edcost I, LLC within fourteen (14) days of the date of
the entry of this Order.
ORDERED that Plaintiffs shall have the right to docket this Judgment in the Superior
Court of New Jersey; and it is further,
ORDERED that the Court shall retain jurisdiction for the purposes of enforcement of this
Judgment; and it is further,
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ORDERED that the filing of this Order on eCourts shall constitute service on all parties.
____________________________________
Hon. Gregg A. Padovano, J.S.C.,
___ Opposed
___ Unopposed
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Attorney ID#030492005
Attorneys At Law
20 Church Street – Suite 15
Montclair, New Jersey 07042
973.314.1967
Attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC
SUPERIOR COURT OF NEW JERSEY
BARBARA TROCANO AND LAW DIVISION: BERGEN COUNTY
EDCOST I, LLC, CIVIL PART
Plaintiffs Docket No.: BER-L-4906-21
v.
GLEN STEVENS, CAROLINA
STEVENS, MICHAEL POOLE,
STEVEN POOLE, CENTURY 21 CERTIFICATION OF
SOLID REALTY COMPANY, CTA ARTHUR M. OWENS. IN SUPPORT OF
TITLE SERVICE, LLC, INC., JOHN PLAINTIFFS’ MOTION FOR FINAL
DOE I, II, and XYZ CORPORATION I, JUDGMENT BY DEFAULT
II
Defendants
I, ARTHUR M. OWENS, being of full age, hereby certify as follows:
1. I am an attorney-at-law of the State of New Jersey and a member of Clark Guldin
Attorneys at Law, attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC (“Plaintiffs”). As
present counsel for Plaintiffs, I am fully familiar with the facts and circumstances set forth
herein. I make this Certification in support of Plaintiffs’ Motion for Final Judgment by Default
against Defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid
Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA
Title Service LLC (collectively, “Poole Defendants”).
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2. As I filed a notice of appearance in this matter on November 20, 2023, this
certification is based upon a review of the file that was provided by Day Pitney LLP, former
attorneys for Plaintiffs, and my review of the complete NJ eCourts docket in this matter.
3. The Poole Defendants served as realtors and escrow agents in connection with
Plaintiffs’ September 2020 sale of property identified as 280 Dutchmans Point Road
Mantoloking, New Jersey 08738 (the “Property”) to Glen Stevens and Caroline Stevens
(“Stevens Defendants”).
4. The Property is a parcel of residential land and improvements which fronts on
Long Island Cove and is flowed by tidewater.
5. Plaintiffs’ consumer fraud claims against the Poole Defendants, which are
primary the subject of this motion, relate to the Poole Defendants’ efforts to induce Plaintiffs into
proceeding to close, with $550,000 in escrow, despite their knowledge of a riparian rights issue.
Specifically, the Poole Defendants falsely represented that one year would be sufficient time to
clear the riparian rights issues, when they knew this was not the case, thus effectively causing the
Plaintiffs to close, forfeiting the entire $550,000.00 escrow. Additional factual background
concerning Plaintiffs’ consumer fraud claims against the Poole Defendants is included within the
certification of Barbara Trocano, which is submitted herewith.
6. On July 23, 2021, Russel Trocano, Esq., on behalf of Plaintiffs, filed the initial
Complaint against the Poole Defendants and the Stevens Defendants. The initial Complaint
sought reformation of the contract against the Stevens Defendants and asserted claims under the
New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2 et. seq. (“NJCFA”) against the Poole
Defendants.
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7. The initial Complaint was accompanied by an Order to Show Cause, which
sought to prevent the Poole Defendants from releasing the escrowed funds to the Stevens
Defendants. A Temporary Restraining Order, preventing the release of the escrowed funds to the
Stevens Defendants, was entered by the Court on August 6, 2021, which was thereafter extended
by the Court on numerous occasions.
8. On January 21, 2022, Day Pitney, LLP, on behalf of Plaintiffs filed an Amended
Complaint which asserted causes of action for Reformation/Rescission of Contract - Mutual
Mistake (Count I); Reformation/Rescission of Contract – Unilateral Mistake (Count II); Fraud
Permitting Recission/Reformation of the Escrow (Count III); Breach of Covenant of Good Faith
and Fair Dealing (Count IV); Promise Causing Detrimental Reliance / Promissory Estoppel
(Count V); Unjust Enrichment (Count VI); Breach of the NJCFA (Count VII); and Declaratory
Judgment (Count IIX).
9. Joseph F. Ottino, Jr., Esq., of Ottino & Fuggi Law, on behalf of the Poole
Defendants filed an Answer to the Amendment Complaint on February 9, 2022. Mr. Ottino
remained as counsel of record for the Poole Defendants at all times herein.
10. On March 15, 2022, Plaintiffs served an Affidavit of Merit of James T. Hill, a
licensed real estate broker and title agent, which averred to a reasonable probability that the care,
skill and knowledge of the Poole Defendants, in their capacity as brokers and title agents with
respect to the Property, fell outside acceptable or professional standards or practices. See
Affidavit of Merit, dated March 14, 2022, attached hereto as Exhibit A.
11. On December 12, 2022, the Court entered an Order directing Poole Defendants to
provide more specific responses to written discovery. Specifically, the Poole Defendants were
ordered to (1) correct the numbering inconsistencies within their interrogatory answers; (2)
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provide more specific answers to certain interrogatories; and (3) provide written responses to
Plaintiffs’ document requests. See Order, dated December 12, 2022, attached hereto as Exhibit
B.
12. The Order of December 12, 2022, directed the Poole Defendants to provide the
amended and updated discovery responses on or before January 10, 2023. Ibid.
13. The Poole Defendants did not comply with the Order of December 12, 2022 and
no additional or supplemental discovery was produced on or before January 10, 2023.
14. On February 15, 2023, Plaintiffs filed a motion to strike the Poole Defendants’
Answer without prejudice, pursuant to R. 4:23-5(a)(1). See Motion dated February 15, 2023,
attached hereto as Exhibit C.
15. On February 28, 2023, counsel for the Poole Defendants submitted an
adjournment request, without contacting Plaintiffs’ counsel for consent, requesting an
adjournment due to an unexplained family emergency and so that the Poole Defendants could
have sufficient time to provide responsive discovery. See correspondence, dated February 28,
2023, attached hereto as Exhibit D.
16. On March 16, 2023, the Poole Defendants filed a late Opposition to the Motion to
Strike Without Prejudice, only one day before the then-scheduled return date of March 17, 2023.
The untimely Opposition purported to provide the deficient discovery, but once again did not
provide written responses to Plaintiffs’ Notices to Produce. See Opposition dated March 16,
2023, attached hereto as Exhibit E.
17. This matter was mediated by Hon. Robert P. Contillo, J.S.C. (retired) on April 11,
2023, but the Poole Defendants elected not to appear or participate. See Email of February 3,
2023, attached hereto as Exhibit F.
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18. Counsel for the Plaintiffs and the Stevens Defendants questioned this
determination. Counsel for the Stevens Defendants stated in an email in response: “If you are
not at the table, then you are on the menu. The rest of us will try to resolve our differences,
maybe one party can have assigned to it the claims against your clients, and we can concentrate
our fire on your clients. I cannot imagine this is on your advice and seems like an unwise choice
by uninsured parties.” See Ibid.
19. After the Poole Defendants failed to provide the ordered additional and
supplemental discovery, on April 3, 2023, the Court granted Plaintiffs’ Motion to Strike the
Poole Defendants’ Answer Without Prejudice. The Court’s Order stated, in relevant part: “The
Court has reviewed the opposition provided and in consideration of the information and reply
argument provided, the responses to discovery demands are untimely and woefully deficient as
to render the submission as unresponsive warranting the granting of Plaintiffs’ motion at this
time.” See Order dated April 3, 2023, attached hereto as Exhibit G.
20. Counsel for the Poole Defendants was served with a copy of the April 3, 2023,
Order via eCourts and via an e-mail with a letter enclosing the Order from Plaintiffs’ counsel on
April 3, 2023. See correspondence dated April 3, 2023, attached hereto as Exhibit H.
21. On June 6, 2023, Plaintiffs filed a Motion to Strike the Answer to the Amended
Complaint of the Poole Defendants with Prejudice. See Motion, dated June 6, 2023, attached
hereto as Exhibit I.
22. Oral argument as to the motion occurred on July 11, 2023 and during oral
argument, the Court directed counsel to meet and confer as to the missing discovery. See
correspondence dated July 11, 2023, attached hereto as Exhibit J.
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23. Before Plaintiffs’ Motion to Strike the Poole Defendants Answer with Prejudice
was resolved by the Court, the relationship between Plaintiffs and Day Pitney LLP devolved. On
July 28, 2023, Day Pitney LLP filed a motion to withdraw as counsel. See Motion dated July 28,
2023, attached hereto as Exhibit K.
24. On July 31, 2023, the Court converted Plaintiffs’ Motion to Strike the Answer to
the Amended Complaint of the Poole Defendants with Prejudice into an Order to Show Cause
returnable on September 15, 2023. This Order to Show Cause required the Poole Defendants
and their counsel to appear on September 15, 2023, and show cause as to why the Poole
Defendants’ pleadings should not be stricken with prejudice. See Order to Show Cause, dated
July 31, 2023, attached hereto as Exhibit L.
25. On August 25, 2023 the Court entered an order relieving Day Pitney LLP as
counsel for Plaintiffs. See Order, dated August 25, 2023, attached hereto as Exhibit M.
26. On September 6, 2023, the Poole Defendants requested an adjournment of this
hearing, and the Court entered a further Order to Show Cause rescheduling the hearing to
October 12, 2023. See Order to Show Cause, dated September 12, 2023, attached hereto as
Exhibit N.
27. The October 12, 2023 hearing was further rescheduled due to the Poole
Defendants’ counsel’s submission of an ex parte facsimile letter which was not filed on eCourts,
which recounted a medical emergency of some type. The Order to Show Cause hearing was
thereafter rescheduled for November 1, 2023. See Case Management Order October 12, 2023,
attached hereto as Exhibit O.
28. Despite the numerous adjournments, the Poole Defendants and their counsel still
did not appear on November 1, 2023 and the Court entered an Order striking and suppressing the
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pleadings of the Poole Defendants with prejudice pursuant to R. 4:23. See Order, dated
November 1, 2023, attached hereto as Exhibit P.
29. On November 17, 2023, counsel for the Poole Defendants filed a putative motion
for reconsideration, on the grounds that counsel prepared but did not submit an additional
adjournment request premised upon his own “return to work on a limited basis” and his mistaken
belief that case had been marked closed.
30. On December 27, 2023, the Court entered an Order denying the motion for
reconsideration. In relevant part, the Courts order stated: “The Court finds that there is no basis
or grounds to warrant reconsideration of the November 1, 2023 order. This Court finds that the
Defendants have had more than enough time to comply with this Court’s and to communicate
and cooperate with their attorney and have failed to do so.” See Order dated December 27, 2023,
attached hereto as Exhibit Q.
31. The Poole Defendants never provided the ordered amended and supplemental
discovery and the Poole Defendants were never deposed in this matter, due to the intentional and
impermissible scheme to refuse to meaningfully participate in this action, that was put in place
by the Poole Defendants and their counsel.
CERTIFICATION OF SERVICES
32. On or about November 15, 2023, Plaintiffs engaged my firm to represent her in
connection with the prosecution of the NJCFA and related claims against the Poole Defendants.
Pursuant to the written engagement letter, my hourly rate is $400 per hour. Under the terms of
our written engagement letter, Plaintiffs are also responsible for all costs, including but not
limited to, filing and service fees; transcript fees; postage; travel; delivery charges; expert fees;
and photocopying.
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33. Following November 15, 2023, I performed all legal work in this case.
34. I graduated from Seton Hall Law School, cum laude in May 2005, and was
admitted to the New Jersey State Bar in 2005 (and the New York State Bar in 2007). In
September 2005, I clerked for the Honorable Clarkson S. Fisher, Jr., J.A.D., of the New Jersey
Appellate Division.
35. From September 2006 until December 2021, I worked in the Litigation
Department of Lum Drasco & Positan LLC in Roseland, New Jersey. I was an associate from
2006 until 2012, when I was promoted to counsel. In January 2014, I was named partner and I
remained in that position until December 2021, when I left the firm to pursue another career
opportunity.
36. In December of 2021, I left Lum Drasco and Positan LLP and joined Clark
Guldin Attorneys at Law in Montclair, New Jersey. I am now a partner at Clark Guldin,
Attorneys at Law.
37. At the time I left Lum Drasco and Positan LLC, my hourly rate as a litigation
associate was $465. My hourly rate at Clark Guldin Attorneys at Law varies, but generally
ranges from $400-$500 per hour depending on a number of factors, including but not limited to
complexity of matters; volume on a client-by-client basis; anticipated time and costs; location of
the litigation; and other case-by-case factors. I have been awarded fees by Court on numerous
occasions, most notably in Keller et al. v. Electronic Arts. Inc., et al., Docket 09-cv-1967 (N.
Dist. Ca. 2015), the landmark case against the NCAA and Electronic Arts, Inc., related to the
misappropriation of the likenesses of college athletes by way of the digital avatars used in video
games developed and marketed by Electronic Arts Inc., and the NCAA. This case is commonly
referred to as one of the touchstone cases that ultimately lead to the present Name, Image
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SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: BERGEN COUNTY
DOCKET NO. BER-L-4904-21
BARBARA TROCANO AND
EDCOST I, LLC,
Plaintiff, CIVIL ACTION
v.
GLEN STEVENS, CAROLINA
STEVENS, MICHAEL POOLE,
STEVEN POOLE, CENTURY 21
SOLID REALTY COMPANY, CTA
TITLE SERVICE, LLC, INC., JOHN
DOE I, II, and XYZ CORPORATION
I, II
Defendants.
PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR ENTRY OF FINAL
JUDGMENT BY DEFAULT
CLARK GULDIN
Attorneys at Law
20 Church Street – Suite 15
Montclair, New Jersey 07042
Tel: (973) 707-5346
Attorneys for Plaintiffs
Barbara Trocano and Edcost I, LLC
On the Brief and Of Counsel:
Arthur M. Owens, Esq. (Attorney ID #)
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PRELIMINARY STATEMENT
Default Judgment has been entered in favor of Plaintiffs, Barbara Trocano and Edcost I,
LLC and against Defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century
21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and
CTA Title Service LLC (collectively, “Poole Defendants”) in connection with claims arising under
the New Jersey Consumer Fraud Act, with respect to misrepresentations made by the Poole
Defendants, in their capacity as brokers and title agents, during Plaintiffs’ 2020 sale of real estate.
Specifically, the Poole Defendants wrongfully advised Plaintiffs that all tidelands and riparian
right issues could be addressed within a one-year period and induced Plaintiffs into entering into
a futile escrow agreement that only operated to forfeit over a half million dollars of the purchase
price back to the purchaser.
The Poole Defendants were represented by counsel at all times in the underlying action
and initially participated, but the Poole Defendants thereafter essentially “declined” or “refused”
to participate in written discovery. As a result of the violation of this Court’s Order addressing the
Poole Defendants outstanding discovery, the Answer of the Poole Defendants was stricken without
prejudice and then with prejudice. After obtaining numerous adjournments, Poole Defendants and
their counsel directly violated this Court’s Order to Show Cause by not appearing for the final
hearing. The Poole Defendants never provided the outstanding and supplemental written
discovery, and the Poole Defendants were also never deposed. It appears that the Poole
Defendants incorrectly believed that if they simply ignored their discovery obligations, as well as
Orders of this Court, that this matter would simply go away. Unfortunately, party defendants
cannot be permitted to benefit from their own strategic nonparticipation in litigation and discovery.
It is submitted that Final Judgment by Default should be entered against the Poole
Defendants in connection with this matter and that treble damages and counsel fees must also be
awarded in favor of Plaintiffs. Given that Plaintiffs’ compensatory fraud damages are fixed and
not subject to dispute it is submitted that judgment can be entered without the Court conducting a
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proof hearing. Finally, it is submitted that counsel for the Poole Defendants should be held
responsible, in the form of a monetary sanction, for his role in disrupting the fairness of the
adversarial system though the purposeful nonparticipation of the Poole Defendants.
STATEMENT OF FACTS/PROCEDURAL HISTORY
The Court is respectfully referred to the accompanying Certification of Barbara Trocano
for a full recitation of the underlying facts and the accompanying Certification of Arthur M.
Owens, Esq. for the procedural history of this matter.
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LEGAL ARGUMENT
POINT I
PLAINTIFFS ARE ENTITLED TO JUDGMENT AGAINST
THE POOLE DEFENDANTS FOR VIOLATION OF THE
CONSUMER FRAUD ACT
The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (the “NJCFA”), is remedial
legislation and “should be construed liberally in favor of consumers.” Cox v. Sears Roebuck &
Co., 138 N.J. 2, 15 (1994). In 1971, the NJCFA was amended to allow a private cause of action.
Weinberg v. Sprint Corp., 173 N.J. 233, 248 (2002). This “promoted several purposes [including]
an efficient mechanism to: (1) compensate the victim for his or her actual loss; (2) punish the
wrongdoer through the award of treble damages; and (3) attract competent counsel to counteract
the ‘community scourge’ of fraud by providing an incentive for an attorney to take a case involving
a minor loss to the individual.” Id. at 249 (citing Lettenmaier v. Lube Connection, Inc., 162 N.J.
134, 139 (1999)).
The NJCFA provides, in relevant part:
The act, use or employment by any person of any unconscionable commercial
practice, deception, fraud, false pretense, false promise, misrepresentation, or the
knowing, concealment, suppression, or omission of any material fact with intent
that others rely upon such concealment, suppression or omission, in connection
with the sale or advertisement of any merchandise or real estate, or with the
subsequent performance of such person as aforesaid, whether or not any person has
in fact been misled, deceived or damaged thereby, is declared to be an unlawful
practice.
N.J.S.A. 56:8–2. The NJCFA further provides:
Any person who suffers any ascertainable loss of moneys or property, real or
personal, as a result of the use or employment by another person of any method,
act, or practice declared unlawful under this act . . . may bring an action . . . In any
action under this section the court shall, in addition to any other appropriate legal
or equitable relief, award threefold the damages sustained by any person in interest.
In all actions under this section the court shall also award reasonable attorneys’
fees, filing fees and reasonable costs of suit.
N.J.S.A. 56:8–19.
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A party violates the NJCFA when it commits an “unlawful practice” as defined in the
legislation. “Unlawful practices” fall into three categories: (1) affirmative acts, defined in N.J.S.A.
56:8–2 as “any unconscionable commercial practice, deception, fraud, false pretense, false
promise, [or] misrepresentation”; (2) conduct by omission, explained by the NJCFA as “the
knowing, concealment, suppression, or omission of any material fact”; or (3) regulatory violations
promulgated under the NJCFA and further outlined in the New Jersey Administrative Code. Cox,
138 N.J. at 17; Model Civil Jury Charge 4.43. Where a plaintiff alleges consumer fraud by an
affirmative act, the plaintiff need not show that the defendant intended to commit an unlawful act.
Cox, 138 N.J. at 17. However, where there is an allegation of consumer fraud by omission or
failure to disclose, the plaintiff must establish that the defendant acted with both knowledge and
intent. Ibid. Where a plaintiff alleges consumer fraud due to regulatory violations, “intent is not
an element of the unlawful practice, and the regulations impose strict liability for such violations.”
Id. at 18. Unlike common law fraud which must be established by clear and convincing evidence,
a claim under the Consumer Fraud Act need only be proven by the preponderance of the evidence.
Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 541 (App. Div. 1996), aff’d, 148 N.J. 582
(1997).
As a starting point, a NJCFA plaintiff is entitled to recovery of the actual compensatory
damages resulting from the defendant’s violative conduct. See Cogar v. Monmouth Toyota, 331
N.J. Super. 197, 203 (App. Div. 2000) Here, the compensatory damages to which Plaintiffs are
entitled to are not reasonably in dispute. If the Poole Defendants had not induced Plaintiffs into
entered into the Addendum, they would have not lost the $301,813, plus interest, that was paid out
of the escrow account to the Stevens Defendants in connection with the settlement. As the
misrepresentations of the Poole Defendants essentially caused the negotiated purchase price to be
reduced by $301,813, there is no reasonable dispute that Plaintiffs are initially entitled to
compensatory damages in the amount of $301,813.
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The NJCFA Applies to the Poole Defendants
Unconscionable commercial practices are affirmative acts that are prohibited by the
NJCFA. Such conduct “is not limited to the initial transaction but extends to ‘the subsequent
performance of such person [involved in the transaction].’” D’Ercole Sales, Inc., 206 N.J. Super.
at 26 (citing N.J.S.A. 56:8-2). Unconscionability is “an amorphous concept obviously designed
to establish a broad business ethic.” Cox, 138 N.J. at 18. “The standard of conduct that the term
‘unconscionable’ implies is lack of ‘good faith, honesty in fact and observance of fair dealing.’”
Cox, 138 N.J. at 18 (citation omitted); see Model Civil Jury Charge 4.43, ¶ B. Misrepresentations
in a commercial context are the baseline examples of unconscionability and deceptive practices.
Kugler v. Romain, 58 N.J. 522, 544 (1971).
The NJCFA unquestionably applies to real estate brokers and professionals. Under the
NJCFA, a real estate broker has a duty to disclose “on-site defective conditions if those conditions
[are] known to [the seller] and unknown and not readily observable by the buyer.” Strawn v.
Canuso, 140 N.J. 43, 59 (1995), superseded by statute on other grounds, (quoting Weintraub v.
Krobatsch, 64 N.J. 445, 454 (1974)). In Strawn, supra, 140 N.J. at 59–60, the New Jersey Supreme
Court held that in the context of realty sales, the NJCFA was “limited to professional sellers of
real estate and to brokers, agents, and salespersons representing such professional sellers.” See
also Byrne v. Weichert Realtors, 290 N.J.Super. 126, 134 (App.Div.) (holding that the NJCFA
does not apply to non-professional sellers of real estate, but does apply to brokers, agents, and
salespersons who represent such non-professional sellers), certif. denied, 147 N.J. 259, 686 A.2d
761 (1996); see also 539 Absecon Blvd., L.L.C. v. Shan Enterprises Ltd. P'ship, 406 N.J. Super.
242, 275(App. Div. 2009).
It is also clear that real estate brokers who sell properties on behalf of property owners are
subject to liability the NJCFA. See Gennari v. Weichert Co. Realtors, 148 N.J. 582 (1997). This
remains true even where the broker is facilitating a sale on behalf of residential owners who would
not themselves be liable under the NJCFA. See Byrne v. Weichert Realtors, 290 N.J. Super. 126,
134 (App. Div.), cert. den., 147 N.J. 259 (1996).
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Further, escrow agents and title companies are subject to liability under the NJCFA. See
Haskins v. First Am. Title Ins. Co., No. CIV. 10-5044 RMB/JS, 2011 WL 5080339, at *3 (D.N.J.
Oct. 25, 2011)(finding that title insurance is a consumer produce and that a title agent is not
immune from liability under the NJCFA based upon any semi-professional exemption). Here, the
actions and misstatements by the Poole Defendants in their capacity as escrow and/or title agents
were also the cause of the loss at issue, as the Poole Defendants erroneously advised that the
riparian rights and tidelands issues could be addressed within six months to one year of closing
and advised that the Addendum and escrow agreement allowed for indefinite extensions. Here,
the fact that the tidelands and riparian rights issue was carved out of the contract and not covered
by a separate title insurance policy offered by the Poole Defendants (which would be standard), is
further proof of an extant NJCFA claim. See William E. Andersen, Top 10 Tips on Handling
Tidelands Applications, N.J. Law., December 2005, at 25-26. The issue of the Poole Defendants
apparent lack of insurance also forms the basis of a regulatory NJCFA claim. Due to the Poole
Defendants willful ignorance of its discovery obligations, Plaintiffs were prevented from
developing and/or proving such claims against the Poole Defendants.
Michael Poole and Steven Poole are Jointly and Severally Liable
Our courts have held that “corporate officers and employees could be individually liable
pursuant to the NJCFA for their affirmative acts of misrepresentation to a consumer.” Allen, 208
N.J. at 131 (citing Gennari, 148 N.J. at 608-10); see also Kugler v. Koscot Interplanetary, Inc., 120
N.J. Super. 216, 251-57 (Ch. Div. 1972) (imposing personal liability on corporate officer).
Nothing in the NJCFA requires a plaintiff to be successful on (or even to set forth) a veil-piercing
theory of liability in order to find an individual responsible for a violation of the NJCFA. Allen,
208 N.J. at 133. Instead, when determining whether to impose liability on an individual for
affirmative acts that have been committed in violation of the [NJCFA], the question is simply
“whether the specific individual had engaged in conduct prohibited by the [NJCFA].” Id. at 132.
Here, Michael Poole and Steven Poole, who are the only members and shareholders of the
entities at issue, are jointly and severally liable for the numerous NJCFA violations since they are
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the specific individuals who engaged in all of the prohibited conduct. (See Certification of Barbara
Trocano.)
Plaintiffs are Entitled to the Recovery of Treble Damages and Attorneys’ Fees.
To warrant an award of treble damages, a “plaintiff must show an ‘ascertainable loss’” and
causation. Cox, 138 N.J. at 21. Unlike common-law fraud, however, this causal nexus does not
require a showing of reliance. Varacallo v. Mass. Mut. Life Ins. Co., 332 N.J. Super. 31, 48 (App.
Div. 2000). Moreover, while there must be a causal relationship between the unlawful conduct
and the plaintiff’s loss, the conduct need not be the sole cause of the harm. Id. Once a plaintiff
has “established a significant relationship between the defendant’s unlawful practices and the
plaintiff’s ascertainable losses, it becomes the defendant's responsibility to isolate particular losses
which do not have the required causal connection.” Roberts v. Cowgill, 316 N.J. Super. 33, 45
(App. Div. 1998). An “‘estimate of damages, calculated within a reasonable degree of certainty’
will suffice to demonstrate an ascertainable loss.” Thiedemann v. Mercedes-Benz USA, 183 N.J.
234, 248-49 (2005) (quoting Cox, 138 N.J. at 22).
The two remedies of treble damages and attorneys’ fees “are clearly independent of each
other.” Roberts, 316 N.J. Super. at 45. As such, even where a plaintiff cannot recover treble
damages, “a bona fide claim of ascertainable loss that raises a genuine issue of fact requiring
resolution by the factfinder [entitles a plaintiff to] receive an award of attorneys’ fees, even if the
plaintiff ultimately loses on h[er] damage claim but does prove an unlawful practice under the
[NJCFA].” Weinberg, 173 N.J. at 253; see also Perez v. Professionally Green, LLC, 215 N.J. 388
(2013) (“our task is to decide whether plaintiffs have presented ‘a bona fide claim of ascertainable
loss that raises a genuine issue of fact requiring resolution by the factfinder’”).
In this case, Plaintiffs assert that the entire $301,813 loss must be trebled pursuant to the
NJCFA. The actions and omissions of the Poole Defendants induced Plaintiffs into entering into
the Addendum, which only served to surreptitiously reduce the contracted price. Here, the Poole
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Defendants made knowing and purposeful misrepresentations which directly caused the loss at
issue. Further. the Poole Defendants purposeful and strategic decision to effectively ignore the
litigation, including all discovery obligations and various Orders of this Court, should also be taken
into consideration with respect to the issue trebling the quantifiable damages.
The NJCFA also mandates an award of counsel fees to successful plaintiffs, stating: “In all
actions under this section, including those brought by the Attorney General, the court shall also
award reasonable attorneys' fees, filing fees and reasonable costs of suit.” N.J.S.A. 56:8–19
(emphasis added). The public policy consideration supporting the fee shifting provisions of the
NJCFA is the “deterrence of fraudulent conduct, and encouragement of counsel to undertake
representation of plaintiffs.” See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004). When fee-
shifting is permitted, the public policy of the enabling statute is a relevant factor to be considered
in conjunction with the factors enumerated in RPC 1.5(a) in determining the award. Garmeaux v.
DNV Concepts, Inc., 448 N.J. Super. 148, 161–62 (App. Div. 2016).
Counsel fees that are incurred as a result of the misrepresentation and in connection with
the prosecution of the NJCFA claim are recoverable. See Garmeaux v. DNV Concepts, Inc., 448
N.J. Super. 148, 156 (App. Div. 2016)(citing Benkoski v. Flood, 626 N.W.2d 851, 862 (2001). In
Garmeaux v. DNV Concepts, Inc., the Appellate Division reasoned that fees incurred in connection
with the prosecution of counterclaims were recoverable where said claims were “inextricably
caught up with and related to the common core of the CFA claim.” Ibid. (internal quotations
omitted). In this matter, Plaintiffs incurred legal fees in connection with the claims for reformation
of the contract with the Stevens Defendants and the prosecution of the NJCFA claims against the
Poole Defendants. As the identified misrepresentations by the Poole Defendants necessitated the
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claims against the Stevens Defendants, all counsel fees incurred by Plaintiffs are now recoverable
by Plaintiffs.
Here, given the Poole Defendants’ willful ignorance of the discovery process and numerous
Orders of this Court, it is submitted that all counsel fees sought herein are just and reasonable.
The Court Need Not Conduct a Proof Hearing in this Matter.
Pursuant to Rule 4:43-2(a), final judgment by default can be entered by the Clerk and
without a proof hearing where the amount “is for a sum certain or for a sum which can by
computation be made certain.” As the amount of Plaintiffs compensatory damages are for a sum
certain, which is not reasonably in dispute, and that the NJCFA mandates treble damages and the
award of reasonable counsel fees it is submitted that no proof hearing is warranted and that
judgment can be entered by the Clerk or the Court as a result of the within application. There is
no issue of credibility or interpretation, and Barbara Trocano’s testimony would do little more than
repeat the incontrovertible statements set forth in her certification that is submitted herewith.
This matter is akin to a book account case because the compensatory damages can be determined
mathematically and without the need for testimony. Varela v. Bloomingdale Auto Grp., LLC,
2022 WL 1320328, at *5 (App. Div. 2022). Damages which flow from a specific contract, or which
can be made certain by mathematical calculation from known factors can be entered with the need
for a proof hearing. See Sema v. Automall 46 Inc., 384 N.J. Super. 145, 153 (App. Div. 2006)
(quoting 25 C.J.S. Damages § 2 (1966)); see also 22 Am. Jur. 2d Damages § 489 (2003).
Here, Plaintiffs entered into a contract to sell the Property for $1,510,000.00. and, due to
the violative conduct of the Poole Defendants, was paid $1,208,187.00, thus fixing Plaintiffs’
compensatory fraud damages at $301,813.00. As the NJCFA calls for treble damages and fee
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shifting, the Court has all information necessary to treble the actual damages and award the
requested reasonable counsel fees. No testimony is necessary as to any such issues.
Generally, the issue of whether a defaulting defendant may participate in a proof hearing,
and the extent of such participation, is a matter of judicial discretion. Jugan v. Pollen, 253 N.J.
Super. 123, 129-131 (App. Div. 1992); see also Pressler & Verniero, Current N.J. Court Rules,
cmt. 2.2.3 on R. 4:43-2 (2024). Given the flagrant nature of the Poole Defendants discovery
abuses, violations of numerous discovery Orders and even failing to appear on November 1, 2023,
in response to the Court’s repeatedly adjourned Order to Show Cause, it is submitted that the Poole
Defendants need not participate in any hearing on this issue, should they even desire or intend to
do so.
The Court Should Sanction Counsel for The Poole Defendants
Courts have significant discretion in entering sanctions against a litigant or attorney.
Counsel for the Poole Defendants’ conduct evidences a blatant disregard of the discovery orders
entered by this Court and the basic litigation process. It is clear that the Poole Defendants’ non-
involvement in this action was based upon the strategic belief that this matter would simply go
away if the Poole Defendants and their counsel ignored the case and the Court’s Orders. Monetary
sanctions have been entered against attorneys for far less egregious conduct. Fager v. Okechukwu,
No. A-5991-05T2, 2008 WL 398810, at *7 (N.J. Super. Ct. App. Div. Feb. 15, 2008) (Monetary
sanctions entered against attorney claiming personal problems who served late expert report
resulting in delay).
While we remain sensitive to the stated health concerns identified by the Poole Defendants
counsel, no motion to withdraw was ever filed and said counsel remained attorney of record at all
times herein. If counsel was truly unable to represent the Poole Defendants due to a medical issue,
then an obligation to withdraw existed. See RPC 1.16(a)(2). It is submitted that the Court should
make clear that voluntary and purposeful nonparticipation in the discovery and litigation process
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by a named party defendant is not a viable litigation strategy by entering a significant monetary
sanction against counsel for the Poole Defendants in addition to Final Judgment in the amounts
identified herein as against the Poole Defendants.
CONCLUSION
For all of the foregoing reasons, Plaintiffs respectfully submits that default judgment be
entered in their favor against Defendants, jointly and severally, calculated as follows:
(a) Compensatory Damages: $301,813
(b) Addition for Trebling (2x) $603,626
(c) Clark Guldin Counsel Fee $18,268.73
(d) Fees Paid to Day Pitney $278,891
(e) Russell Trocano, Esq., Fee $28,050
Total: $1,230,648.73
Respectfully submitted,
CLARK GULDIN
Attorneys for Plaintiffs
By:_/s/ Arthur M. Owens _
Arthur M. Owens, Esq.
Dated: February 16, 2024
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EXHIBIT A
BER-L-004906-21
BER-L-004906-21 03/15/2022
02/16/202410:53:03 AM Pg 1
2:57:51 PM 2 of 3
4 Trans
TransID:
ID:LCV20221073885
LCV2024427869
D AY P I T N E Y L L P
ONE JEFFERSON ROAD
PARSIPPANY, NJ 07054-2891
(973) 966-6300
By C. JOHN DESIMONE, III
Attorney I.D. No. 035101997
By Erin Hodgson
Attorney I.D. Np. 274452018
Attorneys for Plaintiffs
Barbara Trocano and The Edcost I LLC
: SUPERIOR COURT OF NEW JERSEY
BARBARA TROCANO and THE LAW DIVISION: BERGEN COUNTY
EDCOST I LLC, :
DOCKET NO. BER-L-4906-21
Plaintiffs, :
vs. : Civil Action
:
GLENN STEVENS; CAROLINE
STEVENS; MICHAEL POOLE; STEVEN AFFIDAVIT OF MERIT
:
POOLE; SOLID GOLD REALTY INC.
dba CENTURY 21 SOLID GOLD (MICHAEL POOLE; STEVEN POOLE;
REALTY INC.; SOLID GOLD REALTY :
Preview
BER-L-004906-21 02/16/2024 2:57:51 PM Pg 1 of 2 Trans ID: LCV2024427869 Attorney ID: 030492005 CLARK GULDIN Attorneys At Law 20 Church Street – Suite 15 Montclair, New Jersey 07042 973.314.1967 Attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC SUPERIOR COURT OF NEW JERSEY BARBARA TROCANO and LAW DIVISION: BERGEN COUNTY EDCOST I, LLC, CIVIL PART Plaintiffs Docket No.: BER-L-4906-21 v. GLEN STEVENS, CAROLINA STEVENS, MICHAEL POOLE, STEVEN POOLE, CENTURY 21 NOTICE OF MOTION FOR ENTRY OF SOLID REALTY COMPANY, CTA FINAL JUDGMENT BY DEFAULT TITLE SERVICE, LLC, INC., JOHN DOE I, II, and XYZ CORPORATION I, II Defendants TO: Joseph F. Ottino, Jr., Esq. Ottino & Fuggi Law, LLC 721 Brick Boulevard Suite C Brick, NJ 08723 Attorneys for Defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC PLEASE TAKE NOTICE that on March 15, 2024, at 9:00 a.m. in the forenoon or as soon thereafter as counsel may be heard, the undersigned, attorneys for Plaintiffs, Barbara Trocano and Edcost I (“Plaintiffs”), LLC, will move before the Honorable Gregg A. Padovano, J.S.C., at the Bergen County Justice Center, 10 Main Street, Hackensack, NJ 070601 pursuant to R. 4:43-2, for entry of final judgment by default against defendants Michael Poole, Steven Poole, {00130525 - 1} BER-L-004906-21 02/16/2024 2:57:51 PM Pg 2 of 2 Trans ID: LCV2024427869 Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC, jointly and severally, and for such other relief as the Court deems to be just and proper. PLEASE TAKE FURTHER NOTICE that in support of the motion, Plaintiffs shall rely on the Certification of Arthur M. Owens, Esq. with attached exhibits, Certification of Barbara Trocano with attached exhibits, Certification of Russell Trocano, Esq., with attached exhibits, and Brief submitted herewith. PLEASE TAKE FURTHER NOTICE that, pursuant to R. 1:6-2(a), a proposed form of order is being submitted herewith. PLEASE TAKE FURTHER NOTICE that pursuant to R. 1:6-2 and R. 4:43-2, request is hereby made for a ruling on the papers, unless opposition is filed, in which case Plaintiffs request oral argument. CLARK GULDIN Attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC By:/s/ Arthur M. Owens _ Dated: February 16, 2024 Arthur M. Owens, Esq. {00130525 - 1} -2- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 1 of 3 Trans ID: LCV2024427869 CLARK GULDIN Attorneys At Law 20 Church Street – Suite 15 Montclair, New Jersey 07042 973.314.1967 Attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC SUPERIOR COURT OF NEW JERSEY BARBARA TROCANO AND LAW DIVISION: BERGEN COUNTY EDCOST I, LLC, CIVIL PART Plaintiffs Docket No.: BER-L-4906-21 v. GLEN STEVENS, CAROLINA STEVENS, MICHAEL POOLE, STEVEN POOLE, CENTURY 21 FINAL JUDGMENT BY DEFAULT SOLID REALTY COMPANY, CTA TITLE SERVICE, LLC, INC., JOHN DOE I, II, and XYZ CORPORATION I, II Defendants THIS MATTER having been opened to the Court by motion on behalf of Plaintiffs, Barbara Trocano and Edcost I, LLC, through her counsel, Clark Guldin Attorneys at Law, seeking an Order, pursuant to Rule 4:43-2, for final judgment by default against defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC; and the Court having considered said motion, and the proofs and arguments submitted in support thereof and any opposition thereto; and the Court being of the opinion that the relief sought in the motion should be granted; and for good cause shown; IT IS on this ________ day of _______________________ 2024, {00131020 - 1} BER-L-004906-21 02/16/2024 2:57:51 PM Pg 2 of 3 Trans ID: LCV2024427869 ORDERED that the motion by Plaintiffs for default judgment against defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC, is hereby GRANTED; and it is further, ORDERED that a Final Judgment by Default be and is hereby entered pursuant to Rule 4:43-2 in favor of Plaintiffs, Barbara Trocano and Edcost I, LLC, against Defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC, jointly and severally, in the principal sum of $__________________________; and it is further, ORDERED that a Final Judgment by Default be and is hereby entered in favor of Plaintiffs, Barbara Trocano and Edcost I, LLC, against Defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC, jointly and severally, in the additional amount of attorneys’ fees and costs incurred by Plaintiffs in the sum of $__________________________; and it is further, ORDERED that sanctions in the amount of $__________________ are entered against of Joseph F. Ottino, Jr., Esq. and Ottino & Fuggi Law, jointly and severely, and said sanctions shall be paid to Plaintiffs, Barbara Trocano and Edcost I, LLC within fourteen (14) days of the date of the entry of this Order. ORDERED that Plaintiffs shall have the right to docket this Judgment in the Superior Court of New Jersey; and it is further, ORDERED that the Court shall retain jurisdiction for the purposes of enforcement of this Judgment; and it is further, {00131020 - 1} BER-L-004906-21 02/16/2024 2:57:51 PM Pg 3 of 3 Trans ID: LCV2024427869 ORDERED that the filing of this Order on eCourts shall constitute service on all parties. ____________________________________ Hon. Gregg A. Padovano, J.S.C., ___ Opposed ___ Unopposed {00131020 - 1} BER-L-004906-21 02/16/2024 2:57:51 PM Pg 1 of 9 Trans ID: LCV2024427869 Attorney ID#030492005 Attorneys At Law 20 Church Street – Suite 15 Montclair, New Jersey 07042 973.314.1967 Attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC SUPERIOR COURT OF NEW JERSEY BARBARA TROCANO AND LAW DIVISION: BERGEN COUNTY EDCOST I, LLC, CIVIL PART Plaintiffs Docket No.: BER-L-4906-21 v. GLEN STEVENS, CAROLINA STEVENS, MICHAEL POOLE, STEVEN POOLE, CENTURY 21 CERTIFICATION OF SOLID REALTY COMPANY, CTA ARTHUR M. OWENS. IN SUPPORT OF TITLE SERVICE, LLC, INC., JOHN PLAINTIFFS’ MOTION FOR FINAL DOE I, II, and XYZ CORPORATION I, JUDGMENT BY DEFAULT II Defendants I, ARTHUR M. OWENS, being of full age, hereby certify as follows: 1. I am an attorney-at-law of the State of New Jersey and a member of Clark Guldin Attorneys at Law, attorneys for Plaintiffs, Barbara Trocano and Edcost I, LLC (“Plaintiffs”). As present counsel for Plaintiffs, I am fully familiar with the facts and circumstances set forth herein. I make this Certification in support of Plaintiffs’ Motion for Final Judgment by Default against Defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC (collectively, “Poole Defendants”). {00130518 - 1} BER-L-004906-21 02/16/2024 2:57:51 PM Pg 2 of 9 Trans ID: LCV2024427869 2. As I filed a notice of appearance in this matter on November 20, 2023, this certification is based upon a review of the file that was provided by Day Pitney LLP, former attorneys for Plaintiffs, and my review of the complete NJ eCourts docket in this matter. 3. The Poole Defendants served as realtors and escrow agents in connection with Plaintiffs’ September 2020 sale of property identified as 280 Dutchmans Point Road Mantoloking, New Jersey 08738 (the “Property”) to Glen Stevens and Caroline Stevens (“Stevens Defendants”). 4. The Property is a parcel of residential land and improvements which fronts on Long Island Cove and is flowed by tidewater. 5. Plaintiffs’ consumer fraud claims against the Poole Defendants, which are primary the subject of this motion, relate to the Poole Defendants’ efforts to induce Plaintiffs into proceeding to close, with $550,000 in escrow, despite their knowledge of a riparian rights issue. Specifically, the Poole Defendants falsely represented that one year would be sufficient time to clear the riparian rights issues, when they knew this was not the case, thus effectively causing the Plaintiffs to close, forfeiting the entire $550,000.00 escrow. Additional factual background concerning Plaintiffs’ consumer fraud claims against the Poole Defendants is included within the certification of Barbara Trocano, which is submitted herewith. 6. On July 23, 2021, Russel Trocano, Esq., on behalf of Plaintiffs, filed the initial Complaint against the Poole Defendants and the Stevens Defendants. The initial Complaint sought reformation of the contract against the Stevens Defendants and asserted claims under the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2 et. seq. (“NJCFA”) against the Poole Defendants. {00130518 - 1} -2- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 3 of 9 Trans ID: LCV2024427869 7. The initial Complaint was accompanied by an Order to Show Cause, which sought to prevent the Poole Defendants from releasing the escrowed funds to the Stevens Defendants. A Temporary Restraining Order, preventing the release of the escrowed funds to the Stevens Defendants, was entered by the Court on August 6, 2021, which was thereafter extended by the Court on numerous occasions. 8. On January 21, 2022, Day Pitney, LLP, on behalf of Plaintiffs filed an Amended Complaint which asserted causes of action for Reformation/Rescission of Contract - Mutual Mistake (Count I); Reformation/Rescission of Contract – Unilateral Mistake (Count II); Fraud Permitting Recission/Reformation of the Escrow (Count III); Breach of Covenant of Good Faith and Fair Dealing (Count IV); Promise Causing Detrimental Reliance / Promissory Estoppel (Count V); Unjust Enrichment (Count VI); Breach of the NJCFA (Count VII); and Declaratory Judgment (Count IIX). 9. Joseph F. Ottino, Jr., Esq., of Ottino & Fuggi Law, on behalf of the Poole Defendants filed an Answer to the Amendment Complaint on February 9, 2022. Mr. Ottino remained as counsel of record for the Poole Defendants at all times herein. 10. On March 15, 2022, Plaintiffs served an Affidavit of Merit of James T. Hill, a licensed real estate broker and title agent, which averred to a reasonable probability that the care, skill and knowledge of the Poole Defendants, in their capacity as brokers and title agents with respect to the Property, fell outside acceptable or professional standards or practices. See Affidavit of Merit, dated March 14, 2022, attached hereto as Exhibit A. 11. On December 12, 2022, the Court entered an Order directing Poole Defendants to provide more specific responses to written discovery. Specifically, the Poole Defendants were ordered to (1) correct the numbering inconsistencies within their interrogatory answers; (2) {00130518 - 1} -3- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 4 of 9 Trans ID: LCV2024427869 provide more specific answers to certain interrogatories; and (3) provide written responses to Plaintiffs’ document requests. See Order, dated December 12, 2022, attached hereto as Exhibit B. 12. The Order of December 12, 2022, directed the Poole Defendants to provide the amended and updated discovery responses on or before January 10, 2023. Ibid. 13. The Poole Defendants did not comply with the Order of December 12, 2022 and no additional or supplemental discovery was produced on or before January 10, 2023. 14. On February 15, 2023, Plaintiffs filed a motion to strike the Poole Defendants’ Answer without prejudice, pursuant to R. 4:23-5(a)(1). See Motion dated February 15, 2023, attached hereto as Exhibit C. 15. On February 28, 2023, counsel for the Poole Defendants submitted an adjournment request, without contacting Plaintiffs’ counsel for consent, requesting an adjournment due to an unexplained family emergency and so that the Poole Defendants could have sufficient time to provide responsive discovery. See correspondence, dated February 28, 2023, attached hereto as Exhibit D. 16. On March 16, 2023, the Poole Defendants filed a late Opposition to the Motion to Strike Without Prejudice, only one day before the then-scheduled return date of March 17, 2023. The untimely Opposition purported to provide the deficient discovery, but once again did not provide written responses to Plaintiffs’ Notices to Produce. See Opposition dated March 16, 2023, attached hereto as Exhibit E. 17. This matter was mediated by Hon. Robert P. Contillo, J.S.C. (retired) on April 11, 2023, but the Poole Defendants elected not to appear or participate. See Email of February 3, 2023, attached hereto as Exhibit F. {00130518 - 1} -4- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 5 of 9 Trans ID: LCV2024427869 18. Counsel for the Plaintiffs and the Stevens Defendants questioned this determination. Counsel for the Stevens Defendants stated in an email in response: “If you are not at the table, then you are on the menu. The rest of us will try to resolve our differences, maybe one party can have assigned to it the claims against your clients, and we can concentrate our fire on your clients. I cannot imagine this is on your advice and seems like an unwise choice by uninsured parties.” See Ibid. 19. After the Poole Defendants failed to provide the ordered additional and supplemental discovery, on April 3, 2023, the Court granted Plaintiffs’ Motion to Strike the Poole Defendants’ Answer Without Prejudice. The Court’s Order stated, in relevant part: “The Court has reviewed the opposition provided and in consideration of the information and reply argument provided, the responses to discovery demands are untimely and woefully deficient as to render the submission as unresponsive warranting the granting of Plaintiffs’ motion at this time.” See Order dated April 3, 2023, attached hereto as Exhibit G. 20. Counsel for the Poole Defendants was served with a copy of the April 3, 2023, Order via eCourts and via an e-mail with a letter enclosing the Order from Plaintiffs’ counsel on April 3, 2023. See correspondence dated April 3, 2023, attached hereto as Exhibit H. 21. On June 6, 2023, Plaintiffs filed a Motion to Strike the Answer to the Amended Complaint of the Poole Defendants with Prejudice. See Motion, dated June 6, 2023, attached hereto as Exhibit I. 22. Oral argument as to the motion occurred on July 11, 2023 and during oral argument, the Court directed counsel to meet and confer as to the missing discovery. See correspondence dated July 11, 2023, attached hereto as Exhibit J. {00130518 - 1} -5- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 6 of 9 Trans ID: LCV2024427869 23. Before Plaintiffs’ Motion to Strike the Poole Defendants Answer with Prejudice was resolved by the Court, the relationship between Plaintiffs and Day Pitney LLP devolved. On July 28, 2023, Day Pitney LLP filed a motion to withdraw as counsel. See Motion dated July 28, 2023, attached hereto as Exhibit K. 24. On July 31, 2023, the Court converted Plaintiffs’ Motion to Strike the Answer to the Amended Complaint of the Poole Defendants with Prejudice into an Order to Show Cause returnable on September 15, 2023. This Order to Show Cause required the Poole Defendants and their counsel to appear on September 15, 2023, and show cause as to why the Poole Defendants’ pleadings should not be stricken with prejudice. See Order to Show Cause, dated July 31, 2023, attached hereto as Exhibit L. 25. On August 25, 2023 the Court entered an order relieving Day Pitney LLP as counsel for Plaintiffs. See Order, dated August 25, 2023, attached hereto as Exhibit M. 26. On September 6, 2023, the Poole Defendants requested an adjournment of this hearing, and the Court entered a further Order to Show Cause rescheduling the hearing to October 12, 2023. See Order to Show Cause, dated September 12, 2023, attached hereto as Exhibit N. 27. The October 12, 2023 hearing was further rescheduled due to the Poole Defendants’ counsel’s submission of an ex parte facsimile letter which was not filed on eCourts, which recounted a medical emergency of some type. The Order to Show Cause hearing was thereafter rescheduled for November 1, 2023. See Case Management Order October 12, 2023, attached hereto as Exhibit O. 28. Despite the numerous adjournments, the Poole Defendants and their counsel still did not appear on November 1, 2023 and the Court entered an Order striking and suppressing the {00130518 - 1} -6- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 7 of 9 Trans ID: LCV2024427869 pleadings of the Poole Defendants with prejudice pursuant to R. 4:23. See Order, dated November 1, 2023, attached hereto as Exhibit P. 29. On November 17, 2023, counsel for the Poole Defendants filed a putative motion for reconsideration, on the grounds that counsel prepared but did not submit an additional adjournment request premised upon his own “return to work on a limited basis” and his mistaken belief that case had been marked closed. 30. On December 27, 2023, the Court entered an Order denying the motion for reconsideration. In relevant part, the Courts order stated: “The Court finds that there is no basis or grounds to warrant reconsideration of the November 1, 2023 order. This Court finds that the Defendants have had more than enough time to comply with this Court’s and to communicate and cooperate with their attorney and have failed to do so.” See Order dated December 27, 2023, attached hereto as Exhibit Q. 31. The Poole Defendants never provided the ordered amended and supplemental discovery and the Poole Defendants were never deposed in this matter, due to the intentional and impermissible scheme to refuse to meaningfully participate in this action, that was put in place by the Poole Defendants and their counsel. CERTIFICATION OF SERVICES 32. On or about November 15, 2023, Plaintiffs engaged my firm to represent her in connection with the prosecution of the NJCFA and related claims against the Poole Defendants. Pursuant to the written engagement letter, my hourly rate is $400 per hour. Under the terms of our written engagement letter, Plaintiffs are also responsible for all costs, including but not limited to, filing and service fees; transcript fees; postage; travel; delivery charges; expert fees; and photocopying. {00130518 - 1} -7- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 8 of 9 Trans ID: LCV2024427869 33. Following November 15, 2023, I performed all legal work in this case. 34. I graduated from Seton Hall Law School, cum laude in May 2005, and was admitted to the New Jersey State Bar in 2005 (and the New York State Bar in 2007). In September 2005, I clerked for the Honorable Clarkson S. Fisher, Jr., J.A.D., of the New Jersey Appellate Division. 35. From September 2006 until December 2021, I worked in the Litigation Department of Lum Drasco & Positan LLC in Roseland, New Jersey. I was an associate from 2006 until 2012, when I was promoted to counsel. In January 2014, I was named partner and I remained in that position until December 2021, when I left the firm to pursue another career opportunity. 36. In December of 2021, I left Lum Drasco and Positan LLP and joined Clark Guldin Attorneys at Law in Montclair, New Jersey. I am now a partner at Clark Guldin, Attorneys at Law. 37. At the time I left Lum Drasco and Positan LLC, my hourly rate as a litigation associate was $465. My hourly rate at Clark Guldin Attorneys at Law varies, but generally ranges from $400-$500 per hour depending on a number of factors, including but not limited to complexity of matters; volume on a client-by-client basis; anticipated time and costs; location of the litigation; and other case-by-case factors. I have been awarded fees by Court on numerous occasions, most notably in Keller et al. v. Electronic Arts. Inc., et al., Docket 09-cv-1967 (N. Dist. Ca. 2015), the landmark case against the NCAA and Electronic Arts, Inc., related to the misappropriation of the likenesses of college athletes by way of the digital avatars used in video games developed and marketed by Electronic Arts Inc., and the NCAA. This case is commonly referred to as one of the touchstone cases that ultimately lead to the present Name, Image {00130518 - 1} -8- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 9 of 9 Trans ID: LCV2024427869 BER-L-004906-21 02/16/2024 2:57:51 PM Pg 1 of 12 Trans ID: LCV2024427869 SUPERIOR COURT OF NEW JERSEY LAW DIVISION: BERGEN COUNTY DOCKET NO. BER-L-4904-21 BARBARA TROCANO AND EDCOST I, LLC, Plaintiff, CIVIL ACTION v. GLEN STEVENS, CAROLINA STEVENS, MICHAEL POOLE, STEVEN POOLE, CENTURY 21 SOLID REALTY COMPANY, CTA TITLE SERVICE, LLC, INC., JOHN DOE I, II, and XYZ CORPORATION I, II Defendants. PLAINTIFFS’ BRIEF IN SUPPORT OF MOTION FOR ENTRY OF FINAL JUDGMENT BY DEFAULT CLARK GULDIN Attorneys at Law 20 Church Street – Suite 15 Montclair, New Jersey 07042 Tel: (973) 707-5346 Attorneys for Plaintiffs Barbara Trocano and Edcost I, LLC On the Brief and Of Counsel: Arthur M. Owens, Esq. (Attorney ID #) {00130513 - 1} BER-L-004906-21 02/16/2024 2:57:51 PM Pg 2 of 12 Trans ID: LCV2024427869 PRELIMINARY STATEMENT Default Judgment has been entered in favor of Plaintiffs, Barbara Trocano and Edcost I, LLC and against Defendants, Michael Poole, Steven Poole, Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty Inc., Solid Gold Realty LLC d/b/a Century 21 Solid Gold Realty LLC and CTA Title Service LLC (collectively, “Poole Defendants”) in connection with claims arising under the New Jersey Consumer Fraud Act, with respect to misrepresentations made by the Poole Defendants, in their capacity as brokers and title agents, during Plaintiffs’ 2020 sale of real estate. Specifically, the Poole Defendants wrongfully advised Plaintiffs that all tidelands and riparian right issues could be addressed within a one-year period and induced Plaintiffs into entering into a futile escrow agreement that only operated to forfeit over a half million dollars of the purchase price back to the purchaser. The Poole Defendants were represented by counsel at all times in the underlying action and initially participated, but the Poole Defendants thereafter essentially “declined” or “refused” to participate in written discovery. As a result of the violation of this Court’s Order addressing the Poole Defendants outstanding discovery, the Answer of the Poole Defendants was stricken without prejudice and then with prejudice. After obtaining numerous adjournments, Poole Defendants and their counsel directly violated this Court’s Order to Show Cause by not appearing for the final hearing. The Poole Defendants never provided the outstanding and supplemental written discovery, and the Poole Defendants were also never deposed. It appears that the Poole Defendants incorrectly believed that if they simply ignored their discovery obligations, as well as Orders of this Court, that this matter would simply go away. Unfortunately, party defendants cannot be permitted to benefit from their own strategic nonparticipation in litigation and discovery. It is submitted that Final Judgment by Default should be entered against the Poole Defendants in connection with this matter and that treble damages and counsel fees must also be awarded in favor of Plaintiffs. Given that Plaintiffs’ compensatory fraud damages are fixed and not subject to dispute it is submitted that judgment can be entered without the Court conducting a {00130513 - 1} BER-L-004906-21 02/16/2024 2:57:51 PM Pg 3 of 12 Trans ID: LCV2024427869 proof hearing. Finally, it is submitted that counsel for the Poole Defendants should be held responsible, in the form of a monetary sanction, for his role in disrupting the fairness of the adversarial system though the purposeful nonparticipation of the Poole Defendants. STATEMENT OF FACTS/PROCEDURAL HISTORY The Court is respectfully referred to the accompanying Certification of Barbara Trocano for a full recitation of the underlying facts and the accompanying Certification of Arthur M. Owens, Esq. for the procedural history of this matter. {00130513 - 1} -2- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 4 of 12 Trans ID: LCV2024427869 LEGAL ARGUMENT POINT I PLAINTIFFS ARE ENTITLED TO JUDGMENT AGAINST THE POOLE DEFENDANTS FOR VIOLATION OF THE CONSUMER FRAUD ACT The New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. (the “NJCFA”), is remedial legislation and “should be construed liberally in favor of consumers.” Cox v. Sears Roebuck & Co., 138 N.J. 2, 15 (1994). In 1971, the NJCFA was amended to allow a private cause of action. Weinberg v. Sprint Corp., 173 N.J. 233, 248 (2002). This “promoted several purposes [including] an efficient mechanism to: (1) compensate the victim for his or her actual loss; (2) punish the wrongdoer through the award of treble damages; and (3) attract competent counsel to counteract the ‘community scourge’ of fraud by providing an incentive for an attorney to take a case involving a minor loss to the individual.” Id. at 249 (citing Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 139 (1999)). The NJCFA provides, in relevant part: The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice. N.J.S.A. 56:8–2. The NJCFA further provides: Any person who suffers any ascertainable loss of moneys or property, real or personal, as a result of the use or employment by another person of any method, act, or practice declared unlawful under this act . . . may bring an action . . . In any action under this section the court shall, in addition to any other appropriate legal or equitable relief, award threefold the damages sustained by any person in interest. In all actions under this section the court shall also award reasonable attorneys’ fees, filing fees and reasonable costs of suit. N.J.S.A. 56:8–19. {00130513 - 1} -3- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 5 of 12 Trans ID: LCV2024427869 A party violates the NJCFA when it commits an “unlawful practice” as defined in the legislation. “Unlawful practices” fall into three categories: (1) affirmative acts, defined in N.J.S.A. 56:8–2 as “any unconscionable commercial practice, deception, fraud, false pretense, false promise, [or] misrepresentation”; (2) conduct by omission, explained by the NJCFA as “the knowing, concealment, suppression, or omission of any material fact”; or (3) regulatory violations promulgated under the NJCFA and further outlined in the New Jersey Administrative Code. Cox, 138 N.J. at 17; Model Civil Jury Charge 4.43. Where a plaintiff alleges consumer fraud by an affirmative act, the plaintiff need not show that the defendant intended to commit an unlawful act. Cox, 138 N.J. at 17. However, where there is an allegation of consumer fraud by omission or failure to disclose, the plaintiff must establish that the defendant acted with both knowledge and intent. Ibid. Where a plaintiff alleges consumer fraud due to regulatory violations, “intent is not an element of the unlawful practice, and the regulations impose strict liability for such violations.” Id. at 18. Unlike common law fraud which must be established by clear and convincing evidence, a claim under the Consumer Fraud Act need only be proven by the preponderance of the evidence. Gennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 541 (App. Div. 1996), aff’d, 148 N.J. 582 (1997). As a starting point, a NJCFA plaintiff is entitled to recovery of the actual compensatory damages resulting from the defendant’s violative conduct. See Cogar v. Monmouth Toyota, 331 N.J. Super. 197, 203 (App. Div. 2000) Here, the compensatory damages to which Plaintiffs are entitled to are not reasonably in dispute. If the Poole Defendants had not induced Plaintiffs into entered into the Addendum, they would have not lost the $301,813, plus interest, that was paid out of the escrow account to the Stevens Defendants in connection with the settlement. As the misrepresentations of the Poole Defendants essentially caused the negotiated purchase price to be reduced by $301,813, there is no reasonable dispute that Plaintiffs are initially entitled to compensatory damages in the amount of $301,813. {00130513 - 1} -4- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 6 of 12 Trans ID: LCV2024427869 The NJCFA Applies to the Poole Defendants Unconscionable commercial practices are affirmative acts that are prohibited by the NJCFA. Such conduct “is not limited to the initial transaction but extends to ‘the subsequent performance of such person [involved in the transaction].’” D’Ercole Sales, Inc., 206 N.J. Super. at 26 (citing N.J.S.A. 56:8-2). Unconscionability is “an amorphous concept obviously designed to establish a broad business ethic.” Cox, 138 N.J. at 18. “The standard of conduct that the term ‘unconscionable’ implies is lack of ‘good faith, honesty in fact and observance of fair dealing.’” Cox, 138 N.J. at 18 (citation omitted); see Model Civil Jury Charge 4.43, ¶ B. Misrepresentations in a commercial context are the baseline examples of unconscionability and deceptive practices. Kugler v. Romain, 58 N.J. 522, 544 (1971). The NJCFA unquestionably applies to real estate brokers and professionals. Under the NJCFA, a real estate broker has a duty to disclose “on-site defective conditions if those conditions [are] known to [the seller] and unknown and not readily observable by the buyer.” Strawn v. Canuso, 140 N.J. 43, 59 (1995), superseded by statute on other grounds, (quoting Weintraub v. Krobatsch, 64 N.J. 445, 454 (1974)). In Strawn, supra, 140 N.J. at 59–60, the New Jersey Supreme Court held that in the context of realty sales, the NJCFA was “limited to professional sellers of real estate and to brokers, agents, and salespersons representing such professional sellers.” See also Byrne v. Weichert Realtors, 290 N.J.Super. 126, 134 (App.Div.) (holding that the NJCFA does not apply to non-professional sellers of real estate, but does apply to brokers, agents, and salespersons who represent such non-professional sellers), certif. denied, 147 N.J. 259, 686 A.2d 761 (1996); see also 539 Absecon Blvd., L.L.C. v. Shan Enterprises Ltd. P'ship, 406 N.J. Super. 242, 275(App. Div. 2009). It is also clear that real estate brokers who sell properties on behalf of property owners are subject to liability the NJCFA. See Gennari v. Weichert Co. Realtors, 148 N.J. 582 (1997). This remains true even where the broker is facilitating a sale on behalf of residential owners who would not themselves be liable under the NJCFA. See Byrne v. Weichert Realtors, 290 N.J. Super. 126, 134 (App. Div.), cert. den., 147 N.J. 259 (1996). {00130513 - 1} -5- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 7 of 12 Trans ID: LCV2024427869 Further, escrow agents and title companies are subject to liability under the NJCFA. See Haskins v. First Am. Title Ins. Co., No. CIV. 10-5044 RMB/JS, 2011 WL 5080339, at *3 (D.N.J. Oct. 25, 2011)(finding that title insurance is a consumer produce and that a title agent is not immune from liability under the NJCFA based upon any semi-professional exemption). Here, the actions and misstatements by the Poole Defendants in their capacity as escrow and/or title agents were also the cause of the loss at issue, as the Poole Defendants erroneously advised that the riparian rights and tidelands issues could be addressed within six months to one year of closing and advised that the Addendum and escrow agreement allowed for indefinite extensions. Here, the fact that the tidelands and riparian rights issue was carved out of the contract and not covered by a separate title insurance policy offered by the Poole Defendants (which would be standard), is further proof of an extant NJCFA claim. See William E. Andersen, Top 10 Tips on Handling Tidelands Applications, N.J. Law., December 2005, at 25-26. The issue of the Poole Defendants apparent lack of insurance also forms the basis of a regulatory NJCFA claim. Due to the Poole Defendants willful ignorance of its discovery obligations, Plaintiffs were prevented from developing and/or proving such claims against the Poole Defendants. Michael Poole and Steven Poole are Jointly and Severally Liable Our courts have held that “corporate officers and employees could be individually liable pursuant to the NJCFA for their affirmative acts of misrepresentation to a consumer.” Allen, 208 N.J. at 131 (citing Gennari, 148 N.J. at 608-10); see also Kugler v. Koscot Interplanetary, Inc., 120 N.J. Super. 216, 251-57 (Ch. Div. 1972) (imposing personal liability on corporate officer). Nothing in the NJCFA requires a plaintiff to be successful on (or even to set forth) a veil-piercing theory of liability in order to find an individual responsible for a violation of the NJCFA. Allen, 208 N.J. at 133. Instead, when determining whether to impose liability on an individual for affirmative acts that have been committed in violation of the [NJCFA], the question is simply “whether the specific individual had engaged in conduct prohibited by the [NJCFA].” Id. at 132. Here, Michael Poole and Steven Poole, who are the only members and shareholders of the entities at issue, are jointly and severally liable for the numerous NJCFA violations since they are {00130513 - 1} -6- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 8 of 12 Trans ID: LCV2024427869 the specific individuals who engaged in all of the prohibited conduct. (See Certification of Barbara Trocano.) Plaintiffs are Entitled to the Recovery of Treble Damages and Attorneys’ Fees. To warrant an award of treble damages, a “plaintiff must show an ‘ascertainable loss’” and causation. Cox, 138 N.J. at 21. Unlike common-law fraud, however, this causal nexus does not require a showing of reliance. Varacallo v. Mass. Mut. Life Ins. Co., 332 N.J. Super. 31, 48 (App. Div. 2000). Moreover, while there must be a causal relationship between the unlawful conduct and the plaintiff’s loss, the conduct need not be the sole cause of the harm. Id. Once a plaintiff has “established a significant relationship between the defendant’s unlawful practices and the plaintiff’s ascertainable losses, it becomes the defendant's responsibility to isolate particular losses which do not have the required causal connection.” Roberts v. Cowgill, 316 N.J. Super. 33, 45 (App. Div. 1998). An “‘estimate of damages, calculated within a reasonable degree of certainty’ will suffice to demonstrate an ascertainable loss.” Thiedemann v. Mercedes-Benz USA, 183 N.J. 234, 248-49 (2005) (quoting Cox, 138 N.J. at 22). The two remedies of treble damages and attorneys’ fees “are clearly independent of each other.” Roberts, 316 N.J. Super. at 45. As such, even where a plaintiff cannot recover treble damages, “a bona fide claim of ascertainable loss that raises a genuine issue of fact requiring resolution by the factfinder [entitles a plaintiff to] receive an award of attorneys’ fees, even if the plaintiff ultimately loses on h[er] damage claim but does prove an unlawful practice under the [NJCFA].” Weinberg, 173 N.J. at 253; see also Perez v. Professionally Green, LLC, 215 N.J. 388 (2013) (“our task is to decide whether plaintiffs have presented ‘a bona fide claim of ascertainable loss that raises a genuine issue of fact requiring resolution by the factfinder’”). In this case, Plaintiffs assert that the entire $301,813 loss must be trebled pursuant to the NJCFA. The actions and omissions of the Poole Defendants induced Plaintiffs into entering into the Addendum, which only served to surreptitiously reduce the contracted price. Here, the Poole {00130513 - 1} -7- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 9 of 12 Trans ID: LCV2024427869 Defendants made knowing and purposeful misrepresentations which directly caused the loss at issue. Further. the Poole Defendants purposeful and strategic decision to effectively ignore the litigation, including all discovery obligations and various Orders of this Court, should also be taken into consideration with respect to the issue trebling the quantifiable damages. The NJCFA also mandates an award of counsel fees to successful plaintiffs, stating: “In all actions under this section, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.” N.J.S.A. 56:8–19 (emphasis added). The public policy consideration supporting the fee shifting provisions of the NJCFA is the “deterrence of fraudulent conduct, and encouragement of counsel to undertake representation of plaintiffs.” See Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004). When fee- shifting is permitted, the public policy of the enabling statute is a relevant factor to be considered in conjunction with the factors enumerated in RPC 1.5(a) in determining the award. Garmeaux v. DNV Concepts, Inc., 448 N.J. Super. 148, 161–62 (App. Div. 2016). Counsel fees that are incurred as a result of the misrepresentation and in connection with the prosecution of the NJCFA claim are recoverable. See Garmeaux v. DNV Concepts, Inc., 448 N.J. Super. 148, 156 (App. Div. 2016)(citing Benkoski v. Flood, 626 N.W.2d 851, 862 (2001). In Garmeaux v. DNV Concepts, Inc., the Appellate Division reasoned that fees incurred in connection with the prosecution of counterclaims were recoverable where said claims were “inextricably caught up with and related to the common core of the CFA claim.” Ibid. (internal quotations omitted). In this matter, Plaintiffs incurred legal fees in connection with the claims for reformation of the contract with the Stevens Defendants and the prosecution of the NJCFA claims against the Poole Defendants. As the identified misrepresentations by the Poole Defendants necessitated the {00130513 - 1} -8- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 10 of 12 Trans ID: LCV2024427869 claims against the Stevens Defendants, all counsel fees incurred by Plaintiffs are now recoverable by Plaintiffs. Here, given the Poole Defendants’ willful ignorance of the discovery process and numerous Orders of this Court, it is submitted that all counsel fees sought herein are just and reasonable. The Court Need Not Conduct a Proof Hearing in this Matter. Pursuant to Rule 4:43-2(a), final judgment by default can be entered by the Clerk and without a proof hearing where the amount “is for a sum certain or for a sum which can by computation be made certain.” As the amount of Plaintiffs compensatory damages are for a sum certain, which is not reasonably in dispute, and that the NJCFA mandates treble damages and the award of reasonable counsel fees it is submitted that no proof hearing is warranted and that judgment can be entered by the Clerk or the Court as a result of the within application. There is no issue of credibility or interpretation, and Barbara Trocano’s testimony would do little more than repeat the incontrovertible statements set forth in her certification that is submitted herewith. This matter is akin to a book account case because the compensatory damages can be determined mathematically and without the need for testimony. Varela v. Bloomingdale Auto Grp., LLC, 2022 WL 1320328, at *5 (App. Div. 2022). Damages which flow from a specific contract, or which can be made certain by mathematical calculation from known factors can be entered with the need for a proof hearing. See Sema v. Automall 46 Inc., 384 N.J. Super. 145, 153 (App. Div. 2006) (quoting 25 C.J.S. Damages § 2 (1966)); see also 22 Am. Jur. 2d Damages § 489 (2003). Here, Plaintiffs entered into a contract to sell the Property for $1,510,000.00. and, due to the violative conduct of the Poole Defendants, was paid $1,208,187.00, thus fixing Plaintiffs’ compensatory fraud damages at $301,813.00. As the NJCFA calls for treble damages and fee {00130513 - 1} -9- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 11 of 12 Trans ID: LCV2024427869 shifting, the Court has all information necessary to treble the actual damages and award the requested reasonable counsel fees. No testimony is necessary as to any such issues. Generally, the issue of whether a defaulting defendant may participate in a proof hearing, and the extent of such participation, is a matter of judicial discretion. Jugan v. Pollen, 253 N.J. Super. 123, 129-131 (App. Div. 1992); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.2.3 on R. 4:43-2 (2024). Given the flagrant nature of the Poole Defendants discovery abuses, violations of numerous discovery Orders and even failing to appear on November 1, 2023, in response to the Court’s repeatedly adjourned Order to Show Cause, it is submitted that the Poole Defendants need not participate in any hearing on this issue, should they even desire or intend to do so. The Court Should Sanction Counsel for The Poole Defendants Courts have significant discretion in entering sanctions against a litigant or attorney. Counsel for the Poole Defendants’ conduct evidences a blatant disregard of the discovery orders entered by this Court and the basic litigation process. It is clear that the Poole Defendants’ non- involvement in this action was based upon the strategic belief that this matter would simply go away if the Poole Defendants and their counsel ignored the case and the Court’s Orders. Monetary sanctions have been entered against attorneys for far less egregious conduct. Fager v. Okechukwu, No. A-5991-05T2, 2008 WL 398810, at *7 (N.J. Super. Ct. App. Div. Feb. 15, 2008) (Monetary sanctions entered against attorney claiming personal problems who served late expert report resulting in delay). While we remain sensitive to the stated health concerns identified by the Poole Defendants counsel, no motion to withdraw was ever filed and said counsel remained attorney of record at all times herein. If counsel was truly unable to represent the Poole Defendants due to a medical issue, then an obligation to withdraw existed. See RPC 1.16(a)(2). It is submitted that the Court should make clear that voluntary and purposeful nonparticipation in the discovery and litigation process {00130513 - 1} -10- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 12 of 12 Trans ID: LCV2024427869 by a named party defendant is not a viable litigation strategy by entering a significant monetary sanction against counsel for the Poole Defendants in addition to Final Judgment in the amounts identified herein as against the Poole Defendants. CONCLUSION For all of the foregoing reasons, Plaintiffs respectfully submits that default judgment be entered in their favor against Defendants, jointly and severally, calculated as follows: (a) Compensatory Damages: $301,813 (b) Addition for Trebling (2x) $603,626 (c) Clark Guldin Counsel Fee $18,268.73 (d) Fees Paid to Day Pitney $278,891 (e) Russell Trocano, Esq., Fee $28,050 Total: $1,230,648.73 Respectfully submitted, CLARK GULDIN Attorneys for Plaintiffs By:_/s/ Arthur M. Owens _ Arthur M. Owens, Esq. Dated: February 16, 2024 {00130513 - 1} -11- BER-L-004906-21 02/16/2024 2:57:51 PM Pg 1 of 4 Trans ID: LCV2024427869 EXHIBIT A BER-L-004906-21 BER-L-004906-21 03/15/2022 02/16/202410:53:03 AM Pg 1 2:57:51 PM 2 of 3 4 Trans TransID: ID:LCV20221073885 LCV2024427869 D AY P I T N E Y L L P ONE JEFFERSON ROAD PARSIPPANY, NJ 07054-2891 (973) 966-6300 By C. JOHN DESIMONE, III Attorney I.D. No. 035101997 By Erin Hodgson Attorney I.D. Np. 274452018 Attorneys for Plaintiffs Barbara Trocano and The Edcost I LLC : SUPERIOR COURT OF NEW JERSEY BARBARA TROCANO and THE LAW DIVISION: BERGEN COUNTY EDCOST I LLC, : DOCKET NO. BER-L-4906-21 Plaintiffs, : vs. : Civil Action : GLENN STEVENS; CAROLINE STEVENS; MICHAEL POOLE; STEVEN AFFIDAVIT OF MERIT : POOLE; SOLID GOLD REALTY INC. dba CENTURY 21 SOLID GOLD (MICHAEL POOLE; STEVEN POOLE; REALTY INC.; SOLID GOLD REALTY :