Opinion
DOCKET NO. A-0054-13T2
06-11-2014
TD BANK, N.A., f/k/a COMMERCE BANK, N.A., Plaintiff-Respondent, v. GEORGE A. TSAIRIS ARCHITECTS, P.C. and GEORGE A. TSAIRIS, Defendants-Appellants.
William C. Soukas argued the cause for appellants (Nowell Amoroso Klein Bierman, P.A., attorneys; Mr. Soukas, of counsel and on the briefs; Lisa J. Jurick, on the brief). Joseph A. Maurice argued the cause for respondent (Fleischer, Fleischer & Suglia, attorneys; Nicola G. Suglia, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Higbee.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6612-12.
William C. Soukas argued the cause for appellants (Nowell Amoroso Klein Bierman, P.A., attorneys; Mr. Soukas, of counsel and on the briefs; Lisa J. Jurick, on the brief).
Joseph A. Maurice argued the cause for respondent (Fleischer, Fleischer & Suglia, attorneys; Nicola G. Suglia, on the brief). PER CURIAM
In this appeal, defendants George A. Tsairis Architects P.C. (GATA) and George A. Tsairis (Tsairis) appeal from two trial court orders, both dated July 12, 2013, granting summary judgment to plaintiff T.D. Bank, N.A. (plaintiff or bank) and denying defendants' cross-motion for summary judgment. We affirm.
This is an uncomplicated breach of contract action, filed by the bank to collect on a loan obtained by GATA and guaranteed by Tsairis. As required in an appeal from a trial court's summary judgment decision, we have reviewed the record de novo, applying the Brill standard. See Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Based on our review, we conclude that there were no material factual disputes and the undisputed evidence entitled plaintiff to judgment against both defendants.
The facts are straightforward. On October 29, 2010, Tsairis, in his capacity as president of GATA, signed a promissory note for a $150,000 revolving line of credit from the bank to GATA. In that same capacity, Tsairis also signed a Business Loan Agreement with the bank, setting forth the loan terms in detail. The Agreement stated that it "shall continue in full force and effect until such time as all of Borrower's Loans in favor of Lender have been paid in full . . . ." The Agreement, which was in the form of an interest-only loan, also permitted the bank to "term out" the loan at any point, that is, to convert the outstanding balance to a term loan, payable over a sixty-month period. On page two, the Agreement specifically required GATA to provide a loan guarantee executed by Tsairis "[p]rior to disbursement of any Loan proceeds. . . ."
Accordingly, Tsairis signed a "Commercial Guaranty Agreement" pursuant to which he personally guaranteed "full and punctual payment and satisfaction of the indebtedness of Borrower [GATA] to Lender [plaintiff], and the performance and discharge of all Borrower's obligations under the Note and the Related Documents." The Commercial Guaranty Agreement included a "continuing guaranty" under which Tsairis agreed
to guarantee the full and punctual payment, performance and satisfaction of the indebtness of borrower to lender, now existing or hereafter arising or acquired, on an open and continuing basis. Accordingly, any payments made on the indebtedness will not discharge or diminish guarantor's obligations and liability under this guaranty for any remaining and succeeding indebtedness even when all or part of the outstanding indebtedness may be a zero balance from time to time.
The Commercial Guaranty specified the duration of the guaranty, stating that the guaranty "will continue in full force until all the indebtedness incurred or contracted before receipt by Lender of any notice of revocation shall have been fully and finally paid and satisfied and all of Guarantor's other obligations under this Guaranty shall have been performed in full." It included a section detailing the "Guarantor's Authorization to Lender" which authorized plaintiff to "alter, compromise, renew, extend, accelerate, or otherwise change one or more times the time for payment or other terms of the Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of interest on the Indebtedness . . . ." All three documents previously discussed referred to a specific loan number ending with the digits "9002."
On May 6, 2011, plaintiff sent Tsairis a Change in Terms Agreement relating to the note executed on October 29, 2010, and bearing the same loan number ending in 9002. The cover letter accompanying the agreement, which also referred to the same loan number, stated that the change in terms was meant to extend the maturity date of the note.
The Change in Terms Agreement, dated May 9, 2011, reiterated the existing debt, as represented by the October 29, 2010 note, and changed the repayment term and interest rate of the original loan. In the "promise to pay" section, the Change in Terms Agreement provided that GATA, the borrower, promised to pay plaintiff, the lender, a principal amount of $149,951 plus accruing interest over a specified period of time.
The Change in Terms Agreement contained a "continuing validity" provision which stated: "Except as expressly changed by this Agreement, the terms of the original obligation or obligations, including all agreements evidenced or securing the obligation(s), remain unchanged and in full force and effect." Hence, the Change in Terms Agreement did not affect the continuing validity of the personal guarantee Tsairis signed in 2010. Tsairis signed the Change in Terms Agreement on behalf of GATA, as its president.
Defendants admit that GATA defaulted on the loan. In the trial court, Tsairis claimed that his personal guarantee related to a different loan, which had been canceled. The trial judge rejected that argument, and so do we. In his motion certification, Tsairis relied on an April 2011 letter from the bank, and an accompanying Promissory Note and Security Agreement stamped "Paid in Full." However, those documents bear a different loan number, ending in "9001," and the Note was signed on September 12, 2005.
Like the trial judge, we conclude that the documents on which Tsairis relies relate to an entirely different loan. Hence, they do not raise a material dispute of fact concerning either GATA's default on the 9002 loan or Tsairis's personal liability for the debt created by the 9002 loan. Defendants' remaining arguments on this issue, set forth in points I and II of their brief, are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Defendants' point III is devoted to arguments which were not raised in the trial court and which we decline to consider for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).