Pat O’Melia interviews Anthony Olszewski about Hudson County Facts

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… asked to vote for Steve Fulop using different names at several different polling places when he ran for councilman …

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... asked to vote for Steve Fulop using different names at several different polling places when he ran for councilman ...

Fulop 2008 North Precinct Report PDF

JERSEY CITY POLICE DEPT SUPPLEMENTARY INVESTIGATION REPORT

owns a store 1n the diamond district possibly named the Exchange which was located on 47th
St. possiblYca betw,een ~th an~ 6th 5t. i~ New York City. Mr. Cortez stated that Abe lives in
~rooklYn an he ~escrlbes h1m as a Jewlsh male who wears a Yamlka and is approx. 5 ft 9
1nches tall land 15 between 50 and 55 yearsi of age. Mr. cortez stated that he met Abe when
he was arou~d 1 year~ of age and.he start~d out as a personal driver for Abe until Abe
taught h,’m lrnow FO encode the cred,t cards. Mr. Cortez stated that he would get blank
credit card frpm either Abe or another pe’rson who he knows as Iris who picks up the blank
cards from bes personal driver who he knows as vinny. Mr. Cortez went on to describe a female who he knows as Iris by stating
that she is the second person who is used ~n making the fraudulent cards. Mr. cortez stated
l
that Iris h s e~~ipment to put the printing on the front of the credit cards. He believes
t~is machine is called an Eltron machine and he knows ~ris to also make phony Drivers
L,censes fo~ se~eral different states USi~ this machine. Iris is described as an hispanic:
f~male ap’pr,x. 50 years old with brown hair and she lives in an older White house on the
r1ght si~e of S~evens Ave. off of Ocean av. in Jersey c:ity with her children. Iris is
known to drIve an older mOdel black maxim . Mr. Cortez stated that ~ third person was used to make the front side of
the credit ard~ and he would later rememler the name of this person when being interviewed
by the detetti,~es from the prosecutors of ice. Mr. Cortez went on to further describe how
after the credit cards were finished he w uld deliver them to people he called workers who
he would me~t ~n the street and sometimes at the Dunkin donuts on Griffith St. and central
Ave. Mr. Corte~ stated that these workers would’use the cards to bu¥ numerous types of
items rangit 1rom gift cards at SUpermar ets to expensive electron,cs and Relex watches.
The items w’re then taken to Abe and he wduld give the workers 18% of the retail value of
the items. ‘
I
Mr. Cortez further stat~d that one of the skimmer’s recovered at his
apartment h 0 be delivered on 4/13/08 to a person who he knows as carlos who works at a
shell gas s~’ation on the Eastbound side of Route 3 in Secaucus. Nj. Mr. cortez stated that
he has neve m t carlos but he was going to contact him with a number whic:h was in his cell
phone. Mr. or ez stated that he would usually leave the skimmer for two weeks at a
location befor retrieVing it and obtaining the stolen numbers. Mr. cortez informed us that
they only u~ed Visa and Mastercard numbers with the skimmer because they could not be
traced as e~sy as American Express cards. Mr. Cortez further stated that he would not use
the skimmer ag in at the same location for at least two weeks.
, Mr. COrtez informed the uls that when business was busy he sometimes made
300 to 400 hun red credit cards daily. He stated that he was now making up to 100 cards two
or three times a week. Mr. cortez stated that he would be paid 5 dollars a card by Abe
Berger. After Mr Cortez explained his role in the making of the fraudulent credit
cards he infor ad the u/s and Detective Armstrong that he had told the arresting officers
that he wa~ in olved in some kind of voting fraud in Jersey city and he would also like to
speak about th t during the interview. Mr. cortez started by stating that he and at least
six males were asked to vote for Steve Fulop using different names at several different
polling places when he ran for councilman 2 or three years ago. Mr. Cortez stated that he
was askea ijy h·s long tim$ friend Luis Torres. Mr. cortez stated that on the day of the
election hilmse f and the following peop1e were picked up in a white van and given a list of
names to use tp vote for Steve Fulop as they were driven to various polling places in the
downtown a~ea. Mr. cortez stated that he personally voted using eight different names. The
names of t~e m~les he was able to remember who also voted under different names were Luis
TorreS I charlie Torres, Joseph Romeo, Eddie Torres and Victor Reyes. Mr. cortez better
clarif,ed the ~~es of these individuals ‘during the tap’ed audio statement with the
detectiveslof ~he Prosector’s office. Mr, Cortez state~ that these individuals were given a
1 000 dollar check that was given to Luis Torres who cashed the checks in his wife’s bank
a~count an~ the individuals ~ere given ~he cash by Luis Torres. Mr. Cortez stated th~t
these checks_~ere given to LU,S b¥ Charl,e and Tom who both worked for the Fulop’ campa’gn.
Mr. cortezialSo stated that charl,e would go to the polling places to help out in case any
of the ind vicuals would be challenged from voting.
, Mr. Cortez additionally added that if he could talk with someone from the
n~rcotics qUid he had information involving some drug locations in the Newark and Jersey
c, ty areas f , •
I
North.Detective cOTmander Lt. sprague did respond to the North D,strlc~
and did contact the ch,ef of Detect,ves at the Hudson county prosecutor~ off,ce. Detect,ve
Vincent Bopaccolta did respond to the north district. U/s Detective,along wit~ PO J~nes did
have N303 tr~sport Mr. Cortez to the Hudson County prosecutors off,ce to.be ,nterv1ewe9 by
Oet. Bona~l a and Detective Michael Signorile from the prosecutors speclal Investlgatl0ns
74A. Type Ihe Renk, ~ml! an Badge # of R~port.lng otfleer(e) 175A. ,70A. Foegill !’fA. D~le 01 F!.epoft I’M. TRI,I DAU 1,0.
FURCH, 5 H .IN~EST GATOR [00722] ” IPago 2 on 0411212008.18:22IFURCH, S H
8001600121

JERSEY CITY POLICE DEPT SUPPLEMENTARY INVESTIGATION REPORT
JERSEY IcrTY POLICE OEPiI2. Mwl’ Q~ilII 1’5A. Crime Ill’Icldllnl I’D. “fD~i!lculr:lr’l!I Oalle NQ. 120. Oi!l~B”m!!lI’lL PIII!I Nc. Oi.Wel, NQRT~ 10906 IOe.oll022 unit. Detec~jve S;gnorile and Bonaccolta did take a formal audio statement from Mr. cortez
concerning ~he fraudulent credit card use and the voter fraud. Detective Bonaccolta stated
that he wasJthe liaison for the Prosecutors Office to the secret service and he wo~ld be
makin~ thos necessary notifications when needed. u/s Detective responded back to the North
Distrlct to Icomplete necessary reports. PO Jones and Detective Bonaccorte did later
transport M~. Bonnacorte back to the North District to be processed to BCI and the county.
0. Crlmlt Iln!’Jld”‘nl ~I. I
Credit Card Theft:t (1) 2C:2l””O
Intunt tQ Co,,”p.lto Card w/o COnlu;mt (1) 2C,2l”,,1 possel!’,il;/10I1 of Forgery Devlc:sp;; (1) 2C:2l·1c Forgary and Rahat d Of1″,mGIDI (1) 2C:21·1 Receiving Stolen Property (1) 2C:20.!

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Martha Stewart was born in Jersey City.

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Martha Stewart of “It’s a good thing” fame was born in Jersey City. If she’d grown up here she would’ve known to keep her yap shut when the FBI came calling.

Megan Smolenyak reports that “Martha’s grandfather, Frank Kostyra, owned a tavern in Jersey City. On the 4th of July in 1929, two boys stuck a piece of dynamite in the foundation of the tavern causing an explosion that did considerable damage, but fortunately did not injure anyone.”

Martha Stewart's grandfather owned a bar in the Jersey City Heights.

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Jimmy Kelly’s Jersey City Baby 45 record

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Jersey City Baby

Jersey City Cha Cha Twist

– – –

Bob Brainen
10/26/14

to me
From: Anthony Olszewski
Comment:
Is any information available about Jimmy Kelly and the Jersey City reference?

I searched and searched but could find no info. whatsoever on either the artists or
even the label: Cevetone.
Both sides are credited to “Buchowski” and the artist is Jimmy Kelly.
I’m assuming Kelly was “Buchowski” and hence, Polish.
The “drumming” and the vocal and guitar are certainly not synched up.

The drumming on the flip is much more professional sounding.
Obviously it’s the same song as a mostly instrumental.

The “Twist” in the title dates it for me as 61-ish. Again, all guesses.

Here’s another Cevetone! http://www.youtube.com/watch?v=t6fCb5AWYI8

The logo is different than the one on the Kelly label.
There’s a real amateurish quality to both records that I love,
but so many records of the late 50s/early 60s had this quality.

I attached both sides. Enjoy!

In the early days of radio, station WAAT was located in Jersey City.
Frank Sinatra’s first stint as a radio singer was on this local station
in late 1936. I always wondered how much live music and local talent
was broadcast from WAAT.

Interesting. I’m not sure, but JC is a big town and a lot of talent came out of here:
Roy Hamilton, Gil Melle,
Here’s more: http://www.imdb.com/search/name?birth_place=Jersey+City%2C+New+Jersey%2C+USA&
includes Nancy Sinatra.

Best, Bob

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Jersey City Underground Railroad Walking Tour

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Tom Fodice, Assistant Corporation Counsel at the City of Jersey City

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Tom Fodice, long-time attorney at the City of Jersey City, is an acknowledged expert on municipal law and a one-man institution. When Smith became Mayor in 1977, he sent packing Jordan’s entire Law Department — except for Tom Fodice.

When I worked in City Hall from 1998 to 2001, I often had the chance to speak with Tom Fodice. One day we were discussing Michael Ventris deciphering Linear B, Heinrich Schliemann discovering the site of Troy and similar topics. Suddenly a series of clerks and secretaries began to rush into Tom Fodice’s office shouting after the manner of Chicken Little proclaiming celestial plummet.

“A POLICE OFFICER IS HERE WITH A SUBPOENA! A POLICE OFFICE IS HERE WITH A SUBPOENA!”

As some serious and urgent business appeared to require Tom Fodice’s immediate attention, I thought it best that I leave. Because of the crowd of Law Department employees that now filled the room, I couldn’t get out the door.

Tom Fodice ignored the little group and continued to talk about whatever scholarly topic had his attention. Finally — appearing nervous — the officer, holding a large manila envelope, approached the doorway. Without looking at the policeman, Tom Fodice simply said “City Clerk’s Office” and pointed down, indicating the first floor.

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9/11 in Jersey City

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Ground Zero, as seen from Jersey City

On 9/11, I was in Jersey City. I remember the stunned crowds on the Waterfront staring at the devastation. I saw one young man hysterically sobbing. Nobody was cheering.

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Did Nazis congregate at a Jersey City Church?

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My mother told me that during WWII — since St. Nick’s in the Heights was still then an ethnically German parish — all activities outside of church services and the regular school day were cancelled. This was by direction of the government. The anxiety was that enemy sympathizers would use the church and school as a base. How eliminating piano lessons at the convent actually helped the war effort is not easy for me to see.

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Our Jersey City and the Bureau of Special Service

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Our Jersey City music -- Bureau of Special Service stationary

The Our Jersey City original music was among the Nick Baffa material.

The Bureau of Special Service was a Hague innovation. The overt purpose was to treat wayward youth as troubled and by providing guidance and understanding so keep them out of the criminal justice system. The cynical maintained that the real reason was to hide the high juvenile crime rate.

It appears that irony of the use of the Bureau of Special Service stationary for writing Our Jersey City was unintended.

Our Jersey City music

Our Jersey City words

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Francis E. Schiller, restaurateur?

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Superior Court of New Jersey,Appellate Division.
NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY and Banque Nationale de Paris, Houston Agency, Plaintiffs-Respondents, v. PAVONIA RESTAURANT, INC., Ernesto A. Tolentino, James A. McLaughlin, Jr., Paul S. Freeman, Manmohan Patel, William H. Constad, Donald Cinotti, Vincas M. Vyzas, K. Joseph Vyzas, Samuel A. DiFeo, Joseph C. DiFeo, Eleanor Hartnett and H. Clay Irving, III, Defendants,
Ray Vyzas, Francis E. Schiller, Eugene P. Squeo, John Seaholtz and Leona Seaholtz, Defendants-Appellants. v. Pavonia Restaurant, Inc., Ray Vyzas, Francis E. Schiller, K. Joseph Vyzas, Eugene P. Squeo, Samuel A. DiFeo, Joseph C. DiFeo, Eleanor Hartnett, John Seaholtz, Leona Seaholtz and H. Clay Irving, III, James A. McLaughlin, Jr., Paul S. Freeman, Manmohan Patel, William H. Constad, Donald Cinotti and Vincas M. Vyzas, Defendants, Ernesto A. Tolentino, Defendant/Appellant.
Decided: December 4, 1998
Before Judges MUIR, Jr., KEEFE and EICHEN. Schiller & Sasso, Warren, for defendants-appellants Ray Vyzas, Francis E. Schiller, Eugene P. Squeo, John Seaholtz and Leona Seaholtz on A-4568-96T3 (Theodore E. Schiller, on the brief). Margulies, Wind, Herrington & Knopf, Freehold, for defendant/appellant Ernesto A. Tolentino on A-5837-96T3 (no brief was submitted on behalf of this appellant). Dilworth, Paxson, Kalish & Kaufman, Cherry Hill, for plaintiffs-respondents (Francis P. Maneri, on the brief).
The opinion of the court was delivered by
In these consolidated appeals, defendants Ray Vyzas, Francis E. Schiller, Eugene P. Squeo, John Seaholtz and Leona Seaholtz, and Ernesto A. Tolentino (defendants), appeal from an order entered on February 6, 1997 granting summary judgment in favor of plaintiffs New Jersey Economic Development Authority (the EDA) and Banque Nationale de Paris (the Bank) in the sum of $1,530,392.88, and a subsequent order entered on March 21, 1997 denying their motion for reconsideration.   We affirm.
 The litigation arose out of the non-payment of a $1,470,000 loan (the loan) by the EDA and the Bank to Pavonia Restaurant, Inc. (Pavonia).   Pavonia was established to open and operate a new restaurant to be located in a newly-constructed eight-story office building in downtown Jersey City. The proceeds of the loan were used to start the restaurant which was known as “Hudson’s.”   Repayment of the loan was individually guaranteed by defendants,1 who are mostly professional and local business people and, with one exception, are also stockholders in Pavonia.
After Pavonia and defendants defaulted in their obligations to repay the loan, plaintiffs commenced this action.   Judge Thomas Brown granted summary judgment in favor of plaintiffs on their complaint, concluding there were no genuine issues of material fact on the enforceability of the guarantees.   The judge also  denied defendants’ motion to file an amended responsive pleading.   Thereafter, the judge denied defendants’ motion for reconsideration, and this appeal ensued.
Because this is an appeal from the grant of summary judgment, we are required to accept defendants’ evidence as true and to give them the benefit of all favorable inferences that can reasonably be drawn therefrom.  Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 535-36, 666 A.2d 146 (1995);  see also R. 4:46-2(c).   Accordingly, we will summarize the pertinent facts of the case in accordance with those principles.
To acquire the funds necessary to make the loan, the EDA issued and sold Economic Growth Bonds, Composite Issue (1992 Series P Bonds) to investors.   In order to encourage investment in the bonds, at the request of Pavonia and defendants, the Bank issued an irrevocable letter of credit pursuant to which it agreed to repay the bondholders in the event Pavonia defaulted.
On June 1, 1992, Pavonia executed a loan agreement, a promissory note, financing statements, and a security agreement pledging its leasehold improvements and restaurant equipment as security for repayment of the loan (the loan documents).   On the same date, defendants executed a Personal Guaranty Agreement whereby they each agreed individually to guarantee repayment of the loan to Plaintiffs in the event of a default by Pavonia (the guarantees).
Due to a four-month delay in the opening of the restaurant, insufficient advertising, a high-priced menu, staffing problems, and the shareholders’ failure to make the necessary capital contributions, Pavonia ran into financial difficulty and the loan went into default.   Consequently, as of August 19, 1994, the arrearages due from Pavonia to the EDA equalled $241,207.71, and plaintiffs sought payment from defendants in accordance with their guarantees.
Thereafter, Pavonia and defendants requested plaintiffs to forbear enforcement of their rights under the loan agreement and  guarantees.   Plaintiffs agreed and, on October 17, 1994, the parties entered into a “Loan Forbearance Agreement.”   The agreement essentially provided that plaintiffs would not accelerate the loan balance for a period of time if defendants paid the delinquent amounts due and advanced monthly payments through December 1, 1994 totalling $312,970.19.   In the agreement, defendants acknowledged that Pavonia had defaulted on the loan, that they had not cured the default, and that they had no defenses to plaintiffs’ claims under the loan documents or individual guarantees.2
On February 1, 1995, Pavonia again defaulted, and plaintiffs accelerated the loan balance.   In a letter dated June 22, 1995, counsel for plaintiffs made a demand upon defendants for full payment of the loan or possession of the assets Pavonia had pledged as collateral.   When defendants failed to respond, on July 2, 1995, plaintiffs filed a complaint in replevin against Pavonia and defendants, seeking possession of the pledged assets and judgment in the amount of the loan balance, interest, counsel fees and costs.   Plaintiffs also sought compensatory and punitive damages for conversion, wrongful detainer, and breach of contract.   Defendants filed an answer, defenses, and a counterclaim, essentially asserting, among other defenses, that both plaintiffs and defendants were suffering under a mutual mistake of fact when the loan was granted because both parties “erroneously assumed that the business of Pavonia ․ was capable of generating sufficient net revenue to enable defendant Pavonia” to repay the loan.
After extensive discovery, on December 18, 1996, plaintiffs moved for summary judgment.   Defendants opposed the motion and cross-moved to amend their responsive pleadings to assert defenses grounded in fraud, bad faith, and allegations that plaintiffs had failed to disclose material facts at the inception of the loan that materially increased their risk under the guarantees  rendering them unenforceable.   Specifically, defendants alleged that from the inception of the loan, plaintiffs knew and failed to disclose (1) that Pavonia’s assets were insufficient to secure the loan and (2) that plaintiffs were relying principally, if not exclusively, upon defendants’ guarantees as the source of repayment of the loan.
Defendants supported their cross-motion with various deposition transcripts and documents, including two “memoranda” which they maintained demonstrated that plaintiffs had relied solely on the creditworthiness of defendants, whose collective net worth was in excess of $56 million dollars, to secure repayment of the loan.   One memorandum was prepared on March 12, 1992 by Steven K. Szmutko, the senior loan officer of the EDA, and the other was a loan review document prepared on March 26, 1992 by Michael McKee, then vice-president of the Bank. The Szmutko memorandum dealt with the collateral for the loan.   It indicated that plaintiffs needed more than the leasehold improvements and restaurant equipment as collateral, mentioning that the guarantors had a substantial net worth to secure the loan.
At his deposition, Szmutko explained the memorandum, indicating that the EDA used three factors to evaluate the loan:  (1) the sufficiency of the anticipated cash flow from the restaurant business;  (2) the quality of the proposed management;  and (3) the sufficiency of the collateral pledged.   He explained that “where[ ] one part or one component of the loan evaluation process [is] weak, ․ [the EDA] seek[s] to mitigate that weakness by having ․ additional personal guarantees or whatever ․ additional collateral we can to strengthen it independent of the collateral.”   Szmutko stated that because the leasehold improvements and the restaurant equipment were not sufficient collateral to repay the loan in the event the restaurant failed, the creditworthiness of the guarantors was considered “the main source of repayment.”   However, he also stated that in evaluating the loan, he viewed the anticipated cash flow from the business as a significant source of repayment, noting the extensive business experience of Pavonia’s  president, defendant Ray Vyzas, and the restaurant’s general manager who had previously directed operations of four different restaurants. Szmutko also testified that he had analyzed the financial statements prepared by Pavonia’s accountant and that he relied upon the location and anticipated upscale clientele of the restaurant to generate a steady flow of income.   Szmutko stated:
I had asked for financial statements prepared by an independent accounting group which was provided, Sobel & Company, which were projections of balance sheet income statements, probably the cash flow statement as well as the assumptions which we use to prepare the projections and assumption ranging from the revenue, what the average price and rates would be, whether that’s consistent with other restaurants in Jersey City. We looked at it in terms of the value of the cash flow, the location of the restaurant which was near Journal Square which was in a building that was almost completely occupied and also in close proximity to other offices that would attract the type of clientele to this style of restaurant that they were proposing.   We relied on the Sobel projections during the course of the evaluation process.   I consulted with our director of finance, [Eugene Bukowski], and ultimately the project was presented to our board where we determined that the projections that were submitted by the applicant were reasonable.
The loan review document that McKee prepared contains his evaluation and analysis of the loan.   The document indicates that the primary source of repayment of the loan would be Pavonia’s cash flow from operation of the restaurant and that the secondary source would be the guarantors.   In an affidavit, McKee explained exactly how he evaluated the loan.   He stated that he had used projections prepared by Pavonia’s accountant and that based on these projections, which he noted seemed reasonable, he believed that the restaurant could generate sufficient cash flow to repay its debts.   In the affidavit, McKee clarified a comment he had made in the loan review document that “no value” was assigned to the cash flow generating ability of Pavonia or its collateral, explaining that “it was a start-up restaurant with no operational history, and therefore a value simply could not be placed on the [restaurant’s] ability to generate cash flow.”
Lloyd G. Cox, vice-president of the Bank, also testified at depositions and explained the criteria the Bank used in evaluating the loan:
 We looked at this loan and I made the final decision to include it into the composite [bond issue].   We looked at this loan from the standpoint that it was a start-up restaurant, projections were provided that showed that the restaurant could have ample cash flow to repay the indebtedness.   You had a large number of guarantors willing to guarantee the loan.   These were professional, successful businessmen and women, I guess, attorneys, doctors, who lived and worked in this area so we placed reliance that they understood their market, they understood their home town, if you will, and that carried a lot of weight.   We would not have entered into a relationship knowing that there was no chance that the restaurant would have made it and we would have had to collect against the guarantors.
Cox went on to state that, after analyzing the financial statements of the individual guarantors, he was satisfied Pavonia had the ability to repay the loan in the event of a default.   With respect to the high-risk nature of the restaurant business, Cox stated the following:
I wouldn’t have included it if I didn’t think it had much of a chance of making it.   I was relying on the New Jersey EDA having approved the loan and also relying on this group of professionals, successful business people who were willing to guarantee this loan and this venture, that they wouldn’t have done so if they didn’t think it had a likelihood of being successful.
Eugene Bukowski, the managing director of finance for the EDA agreed, testifying in his deposition that the financial projections prepared by Pavonia’s accountant were conservative when compared with industry standards and, that according to the financial projections, it appeared that Pavonia’s expected cash flow would be sufficient to repay the loan.
In granting summary judgment to plaintiffs and denying their motion for reconsideration, Judge Brown concluded that defendants had failed to support with sufficient evidential materials any of the theories they had advanced as defenses to the enforceability of the individual guarantees.   In so doing, the judge observed that a party is not required to disclose information to another unless a fiduciary relationship exists.   He also determined that plaintiffs were “not responsible to advise [defendants] of information that [was] readily available to them on their own.”   The judge found that “entering into a new restaurant arrangement [is] a high risk business, ․ [and] that defendants knew what they were getting into” at the inception of the loan and also when they executed the forbearance agreement.   The judge then denied defendants’ cross-motion to amend their pleadings to allege fraud, breach of good faith, and failure to disclose a material risk, concluding the contentions were “moot based on the Court’s decision on the [summary judgment] motion.”   The judge further stated that:
any of the asserted modifications to the pleadings at this late date are merely an effort to manufacture what might be a defense to hold up the proceeding until such time as there can be further motions made to strike them.   I see nothing in any-any of the papers that were submitted to this court that would legitimately indicate that there was any fraud, breach of good faith, or failure to disclose on the part of the plaintiffs.
In denying defendants’ motion for reconsideration, the judge added:
[T]here does not appear to be anything in the case that in any way suggests any fraud or bad faith on the part of any person in the bank.   The fact that this was a restaurant, an operation which success is generally known to be questionable, also the fact, as I indicated, that the investors ․ are all businessmen ․ they’re not 87 year old widows who are living on what they inherited and want to invest the money․ [T]hese are businessmen who were fully aware of what the obligations were, not only when they entered into the surety agreement, but also when they entered into the forbearance agreement.
On appeal, although defendants raise arguments under numerous separate point headings, the arguments are essentially twofold:  (1) that the evidence presented raised genuine issues of material fact from which inferences could be drawn of plaintiffs’ bad faith, fraud, and breach of duty to disclose;  and (2) that the judge abused his discretion in denying their motion to amend their responsive pleadings under R. 4:9-1.
I.
 “Every fraud in its most general and fundamental conception consists of the obtaining of an undue advantage by means of some act or omission that is unconscientious or a violation of good faith.”   Jewish Ctr. of Sussex County v. Whale, 86 N.J. 619, 624, 432 A.2d 521 (1981).   A plaintiff must establish a claim of fraud by clear and convincing evidence.  Baldasarre v. Butler, 254 N.J.Super. 502, 521, 604 A.2d 112 (App.Div.1992), rev’d in part on other grounds, 132 N.J. 278, 625 A.2d 458 (1993).   Legal fraud consists of five elements:  (1) a material representation by the  defendant of a presently existing or past fact;  (2) knowledge or belief by the defendant of that representation’s falsity;  (3) an intent that the plaintiff rely thereon;  (4) reasonable reliance by the plaintiff on the representation;  and (5) resulting damage to the plaintiff.  Id. at 520, 604 A.2d 112.   Equitable fraud, unlike legal fraud, does not require knowledge of the falsity and an intent to obtain an undue advantage.  Id. at 521, 604 A.2d 112.
 Deliberate suppression of a material fact that should be disclosed is equivalent to a material misrepresentation (i.e., an affirmative false statement).  Strawn v. Canuso, 140 N.J. 43, 62, 657 A.2d 420 (1995).   In other words, “[s]ilence, in the face of a duty to disclose, may be a fraudulent concealment.”  Berman v. Gurwicz, 189 N.J.Super. 89, 93, 458 A.2d 1311 (Ch.Div.1981) (emphasis and citation omitted), aff’d, 189 N.J.Super. 49, 458 A.2d 1289 (App.Div.), certif. denied, 94 N.J. 549, 468 A.2d 197 (1983).   However, the concealed facts “must be facts which if known ․ would have prevented [the obligor] from obligating himself, or which materially increase his responsibility.”  Ramapo Bank v. Bechtel, 224 N.J.Super. 191, 198, 539 A.2d 1276 (App.Div.1988) (internal punctuation and citation omitted).   Nonetheless, a party has no duty to disclose information to another party in a business transaction unless a fiduciary relationship exists between them, unless the transaction itself is fiduciary in nature, or unless one party “expressly reposes a trust and confidence in the other.”   Berman, supra, 189 N.J.Super. at 93-94, 458 A.2d 1311.   Indeed, as a general proposition, creditor-debtor relationships rarely give rise to a fiduciary duty “inasmuch as their respective positions are essentially adversarial.”  Globe Motor Car Co. v. First Fidelity Bank, 273 N.J.Super. 388, 393, 641 A.2d 1136 (Law Div.1993), aff’d, 291 N.J.Super. 428, 677 A.2d 794 (App.Div.), certif. denied, 147 N.J. 263, 686 A.2d 764 (1996).   Further, where information is equally available to both parties, neither party has a duty to disclose that information to the other.  Id. at 395, 641 A.2d 1136.
We have carefully reviewed the entire record, the arguments and factual contentions presented, and prevailing legal principles  and conclude that the motion judge properly determined that the evidence presented by defendants does not create a “genuine issue of material fact” under R. 4:46-2 requiring submission of their claims of fraud or bad faith to a jury.  “[T]he evidence ‘is so one-sided that [plaintiffs] must prevail as a matter of law.’  ” Brill, supra, 142 N.J. at 540, 666 A.2d 146 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202, 213 (1986)).
 Defendants claim that plaintiffs placed sole reliance on their individual guarantees for repayment of the loan.   As reflected in the factual recitations previously given, the record does not support that assertion.   Rather, it reflects that both plaintiffs and defendants anticipated that the revenues from the restaurant would support repayment of the loan.   The information concerning the anticipated revenues was, in fact, derived from Pavonia’s accountant, Sobel & Company.   Although defendants maintain that the McKee loan review document concluded that “no reliance could be placed on the ‘collateral or cash flow generating ability of the restaurant,’ ” the record clearly belies this assertion.   The record discloses that McKee believed, based on the projections made by Pavonia’s accountant, that the restaurant would generate sufficient cash flow to repay the loan.   As Lloyd Cox, vice-president of the Bank, indicated, the Bank never would have included the loan to Pavonia in the composite bond issue if it did not believe that Pavonia would be successful.   Despite defendants’ attempts to make it appear as though plaintiffs knew Pavonia would be unable to repay the loan and therefore insisted on the guarantees, nothing in the record supports this proposition.   Defendants have not pointed to any evidence that even suggests plaintiffs had information about Pavonia’s ability to repay the loan which defendants did not have.   Indeed, everyone understood that opening a restaurant in a new location was an inherently risky business.   Plaintiffs hoped that the restaurant’s success would comport with the financial projections of Pavonia’s accountant just as defendants did.   The obvious fact is that external factors  impeded Pavonia’s success, factors which were completely unrelated to plaintiffs’ evaluation of the loan agreements.3
In sum, defendants have utterly failed to demonstrate what facts plaintiffs had, but defendants lacked, that materially increased the risk beyond that which plaintiffs knew defendants intended to assume.
Impliedly recognizing that they could not prove their case under these theories, defendants argue that their claims are viable under the principles of law contained in the Restatement of Security:  Suretyship § 124 (1941) (the Restatement ).4  That section provides in relevant part:
Where before [a] surety has undertaken his obligation the creditor knows facts unknown to the surety that materially increase the risk beyond that which the creditor has reason to believe the surety intends to assume, and the creditor also has reason to believe that these facts are unknown to the surety and has a reasonable opportunity to communicate them to the surety, failure of the creditor to notify the surety of such facts is a defense to the surety.
Defendants argue that plaintiffs violated these principles of law by failing to disclose facts to them that materially increased their risk under the guarantees, specifically, that unbeknownst to defendants, plaintiffs were relying on their guarantees as the primary security for repayment of the loan and failed to disclose this fact to them.   They maintain they would not have undertaken the risk if they had known the guarantees were the principal security for the loan.
New Jersey typically gives considerable weight to Restatement views, and has on occasion even adopted those views as the law of this state.  Citibank, N.A. v. Estate of Simpson, 290 N.J.Super. 519, 530, 676 A.2d 172 (App.Div.1996).   Although we find it  unnecessary to formally adopt the Restatement here, we have employed its principles, in part, to evaluate defendants’ claims.
 Section 124 prescribes three conditions precedent to imposing a duty on a creditor to disclose facts it knows about the debtor to the surety:  (1) the creditor must have reason to believe that those facts materially increase the risk beyond that which the surety intends to assume;  (2) the creditor must have reason to believe that the facts are unknown to the surety;  and (3) the creditor must have a reasonable opportunity to notify the surety of such facts.   See, e.g., Sumitomo Bank of Cal. v. Iwasaki, 70 Cal.2d 81, 73 Cal.Rptr. 564, 447 P.2d 956, 963 (1968).
 However, the comments to Section 124 of the Restatement explain that:
[this rule] does not place any burden on the creditor to investigate for the surety’s benefit.   It does not require the creditor to take any unusual steps to assure himself that the surety is acquainted with facts which he may assume are known to both of them.
****
Every surety by the nature of his obligation undertakes risks which are the inevitable concomitants of the transactions involved.   Circumstances of the transactions vary the risks which will be regarded as normal and contemplated by the surety.
[Restatement of Security:  Suretyship § 124 cmt. b (1941) ].
For the reasons previously stated in our rejection of defendants’ claims of fraud and bad faith, we are satisfied that defendants failed to raise any factual issue applying the principles derived from the Restatement.   Suffice it so say, plaintiffs were not in possession of any facts that defendants were not aware of;  both parties hoped the restaurant would generate sufficient cash flow to repay the loan.   Regrettably, it did not.
Defendants’ reliance on out-of-state cases are equally unavailing. All of the cases involve facts that are clearly distinguishable from those in the instant case.   See Morris v. Columbia Nat’l Bank of Chicago, 79 B.R. 777, 785-86 (N.D.Ill.1987) (observing that creditor may have acted in bad faith in allowing debtor to engage in a transaction favorable to the creditor but adverse to  the surety, when creditor knew debtor was having financial problems);  Camp v. First Fin. Fed. Sav. & Loan Ass’n, 299 Ark. 455, 772 S.W.2d 602, 604-05 (1989) (holding that failure to disclose to surety that interest on loan to debtor was delinquent and that lender was making secret side loans to debtor discharged liability of surety);  Georgia Pacific Corp. v. Levitz, 149 Ariz. 120, 716 P.2d 1057, 1059 (1986) (holding that guarantor was discharged from liability on a continuing guarantee where creditor knew guarantor was unaware of debtor’s insolvency but continued to extend credit to debtor, thereby materially increasing the guarantor’s risk beyond that which guarantor intended to assume);  Sumitomo Bank of Cal. v. Iwasaki, supra, 73 Cal.Rptr. 564, 447 P.2d at 966-67 (holding same);  McHenry State Bank v. Y & A Trucking, Inc., 117 Ill.App.3d 629, 73 Ill.Dec. 485, 454 N.E.2d 345, 349 (1983) (concluding that a creditor’s release of collateral without the consent of the guarantor will discharge the guarantor of his obligations);  Maine Nat’l Bank v. Fontaine, 456 A.2d 1273, 1275-76 (Me.1983) (reversing jury verdict on judge’s erroneous refusal to charge jury that creditor had duty to disclose to an accommodation party that it had terminated efforts on behalf of debtor to obtain a Small Business Association loan, and holding that jury could have determined that circumstance materially increased risk beyond that which accommodation party had agreed to take);  Security Bank, N.A. v. Mudd, 215 Mont. 242, 696 P.2d 458, 460-61 (1985) (holding that creditor’s failure to disclose its decision not to apply collateral to reduce debtor’s loan discharged guarantor);  see also Ramapo Bank v. Bechtel, supra, 224 N.J.Super. at 199, 539 A.2d 1276 (reversing summary judgment and remanding to trial court to consider whether concealed pre-loan side agreement by bank not to pursue a co-guarantor in event debtor defaulted in repaying loan constitutes fraud).
 Finally, aside from the merits of the instant case, there is an additional reason why summary judgment was properly granted.   The record clearly reflects that defendants waived their claims and defenses relating to the loan when they entered into  the forbearance agreement.   See Cedar Ridge Trailer Sales, Inc. v. National Community Bank, 312 N.J.Super. 51, 62-65, 711 A.2d 338 (App.Div.1998).   Their assertion that the waiver is unenforceable because they lacked knowledge of plaintiff’s alleged “fraud” until they conducted discovery is unavailing in view of the absence of any evidence of “fraud,” as we previously noted.
II.
 We also reject defendants’ claim that the court abused its discretion in denying their motion to file an amended responsive pleading.   The judge did not abuse his discretion when he noted that any “modifications to the pleadings at this late date [were] merely an effort to manufacture what might be a defense to hold up the proceeding until such time as there can be further motions made to strike them.”   See Stuchin v. Kasirer, 237 N.J.Super. 604, 609, 568 A.2d 907 (App.Div.) (holding that since the “showing of fraud was marginal at best, and the amendment would only have protracted [the] litigation,” there was no abuse of judicial discretion in denying the amendment), certif. denied, 121 N.J. 660, 583 A.2d 346 (1990).   While we recognize that such amendments should be “freely given in the interest of justice,” R. 4:9-1, we perceive no abuse of discretion by the motion judge in determining to disallow the filing of an amended pleading to assert these new theories where they could not be supported on this record.
Accordingly, we affirm the summary judgment entered in favor of plaintiffs on their complaint.
FOOTNOTES
1.  For convenience and ease of reference, we use the term “defendants” to refer interchangeably to all of the individual guarantors and the defendants-appellants even though not all of the guarantors have participated in this appeal.Although a notice of appeal was filed on behalf of K. Joseph Vyzas, Samuel E. Difeo, Joseph C. Difeo, Eleanor Hartnett, and H. Clay Irving, III, these guarantors did not file a brief.   Consequently, we consider the appeal dismissed as to them.Defendant Ernesto A. Tolentino filed a separate notice of appeal and a separate appendix, and he apparently has joined in defendants-appellants’ brief.   Accordingly, his appeal is considered perfected.The guarantors James A. McLaughlin, Jr., Paul S. Freeman, Manmohan Patel, William H. Constad, Donald Cinotti, and Vincas M. Vyzas, did not file a notice of appeal.
2.  The forbearance agreement also states:[Defendants] have no set-offs, defenses or counterclaims against [plaintiffs] with respect to the Indebtedness, and ․ are indebted to the Secured Parties for the amounts recited in this Agreement.
3.  We note that although Pavonia was unsuccessful in establishing a viable restaurant business, its successor, Laico’s of Journal Square, has not been.
4.  Section 124 of the Restatement was revised in 1996.   See Restatement (Third) of Suretyship and Guaranty § 12 (1996).   However, there were no substantive changes to the section that affect this decision.
 EICHEN, J.A.D.

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