                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-0865-17T1

FAHIM HUSSAIN,

          Plaintiff-Appellant,

and

GENEVIEVE THOMAS,

          Plaintiff,

v.

CITIZENS FINANCIAL GROUP, INC.,

          Defendant-Respondent,

and

KEYSTONE ASSET MANAGEMENT,
INC., CENTURY 21 WORDEN &
GREEN, BRIAN GRAHAM, d/b/a
CENTURY 21 WORDEN & GREEN,
PETER MCGAVISK, d/b/a CENTURY
21 WORDEN 21 WORDEN & GREEN,
and PROGRESSIVE MAINTENANCE,
INC.,

     Defendants.
__________________________________
            Argued January 16, 2019 – Decided February 8, 2019

            Before Judges Fuentes, Accurso and Vernoia.

            On appeal from Superior Court of New Jersey, Law
            Division, Monmouth County, Docket No. L-3379-15.

            Fahim Hussain, appellant pro se.

            Nicholas M. Gaunce argued the cause for respondent
            (Eckert Seamans Cherin & Mellott, LLC, attorney;
            Nicholas M. Gaunce, of counsel and on the brief).

PER CURIAM

      Plaintiff Fahim Hussain appeals from an order granting summary

judgment dismissing the third amended complaint, which alleges causes of

action for negligent misrepresentation, violation of the Consumer Fraud Act

(CFA), N.J.S.A. 56:8-1 to -210, and negligence. Plaintiff also appeals from an

order denying his motion for reconsideration. 1 Based on our review of the

record,2 we affirm.




1
  We do not address the order denying plaintiff's reconsideration motion because
plaintiff does not offer any argument supporting its reversal. An issue not
briefed on appeal is deemed waived. Jefferson Loan Co. v. Session, 397 N.J.
Super. 520, 525 n.4 (App. Div. 2008).
2
  Pursuant to leave granted, the record on appeal was supplemented to include
portions of plaintiff's May 25, 2017 deposition and exhibits from the deposition
of defendant's employee Sherri Deal.
                                                                        A-0865-17T1
                                       2
                                         I.

      We discern the following undisputed facts from the record before the

motion court and view the facts and all reasonable inferences therefrom in the

light most favorable to plaintiff, the non-moving party. Bauer v. Nesbitt, 198

N.J. 601, 605 n.1 (2009); R. 4:46-2(c). Defendant Citizens Financial Group,

Inc. acquired residential property in Upper Freehold Township through "a

foreclosure process" and subsequently offered it for sale. Prior to placing the

property on the market, defendant's inspector examined the property on

December 2, 2013, and noted in his report there were moisture stains on ceilings,

interior walls and in the kitchen, but he was "unable to determine the status of

the stains at the time of inspection."

      Plaintiff first viewed the property on March 15, 2014, and was aware it

was a foreclosed property.      Three weeks later, plaintiff's wife, Genevieve

Thomas, and her sister, Geraldine Thomas, (collectively "purchasers") signed a

contract to buy the property. The contract stated the property was being sold

"AS IS" and permitted the purchasers to perform a home inspection. The

contract included a rider, "Addendum A 'AS IS' Provision," stating:

            Buyer is aware that Seller acquired the property which
            is the subject of this transaction by way of foreclosure
            deed in lieu and that Seller is selling and Buyer is
            purchasing the property in its present "AS IS"

                                                                         A-0865-17T1
                                         3
CONDITION WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR NATURE.

Buyer acknowledges for Buyer and Buyer's successors,
heirs and assignees, that Buyer has been given a
reasonable opportunity to inspect and investigate the
property and all improvements thereon, either
independently or through agents of Buyer's choosing,
and that in purchasing the property Buyer is not relying
on seller, or its agents, as to the condition or safety of
the property and/or any improvements thereon
including, but not necessarily limited to electrical,
plumbing, heating, sewage, roof, air conditioning, if
any, foundations, soils and geology, lot size, or
suitability of the property and/or improvements for
particular purposes, or that any appliances, if any,
plumbing and/or utilities are in working order, and/or
that the improvements are structurally sound and/or in
compliance with any city, county, state and/or Federal
statutes, codes or ordinances. Any reports, repairs, or
work required by Buyer's Lender is to be the sole
responsibility of the Buyer.

Seller does not warrant existing structure as to the
habitability or suitability for occupancy. Buyer(s)
assumes responsibility to check with appropriate
planning authority for intended use and holds Seller and
Broker harmless as to suitability for Buyer(s) intended
use.

Buyer(s) further states that they are relying solely upon
their own inspection of subject property and not upon
any representation made to them by any person
whomsoever, and is purchasing subject property in the
condition in which it now is, without any obligation on
the part of the Seller to make any changes, alterations,
or repair thereto. Seller gives no warranties of fitness
regarding such personal property that belongs to Seller
which is transferred as a part of the purchase.

                                                             A-0865-17T1
                            4
             The closing of this transaction shall constitute as an
             acknowledgment by the Buyer(s) that THE PREMISES
             WERE ACCEPTED WITHOUT REPRESENTATION
             OR WARRANTY OF ANY KIND OR NATURE AND
             [IN] ITS PRESENT "AS IS" CONDITION BASED
             SOLELY ON BUYER'S INSPECTION.

      The contract was reviewed by purchasers' counsel. Purchasers retained

an inspector to conduct a home inspection. The inspector's report identified

numerous issues with the condition of the property including: electrical outlets

not working; wall, ceiling and window water stains; damaged floors; a kitchen

sink leak; exposed electrical wires; double-tapped electrical breakers; non-

functioning shower heads; excessive furnace rust; and a cracked toilet. The

inspector recommended that purchasers follow up with a contractor for, among

other things, "further evaluation of [the] water source" of the leaks "and for

further repair."

      Acting on purchasers' behalf, plaintiff sought a $50,000 price reduction

based on the issues identified in the home inspection report. Defendant rejected

the proposal, and plaintiff responded by requesting a $25,000 reduction.

Defendant rejected that proposal, terminated the contract and placed the

property back on the market.

      Plaintiff subsequently directed purchasers' counsel to ask defendant to

reinstate the contract.   Purchasers' counsel wrote to defendant's counsel

                                                                        A-0865-17T1
                                       5
requesting the reinstatement and stating that his "client [has] advised that she

wants to proceed with the purchase of the . . . property without a reduction in

purchase price and will waive the open inspection negotiation." Defendant

agreed.

      Prior to the closing of title, Upper Freehold Township conducted an

inspection and required repairs for the issuance of a Certificate of Occupancy.

The Township required defendant to: repair of the kitchen faucet; install an

electric wire to the dishwasher in a covered junction box; install a kitchen fire

extinguisher; address a leak in the conservatory ceiling and repair damaged

sheetrock; place a hanging basement wire in a covered junction box; address a

paver tripping hazard on front steps; and have a licensed electrician certify that

all breakers and the sub-panel are properly installed.

      Purchasers and defendant subsequently executed an "Addendum to

Contract of Sale," providing in pertinent part:

            5. Seller agrees to perform all required [Certificate of
            Occupancy] repairs as listed on the inspection report
            conducted by Upper Freehold Township dated July 2,
            2014. If any other conditions come up to obtain a final
            [Certificate of Occupancy] and the Seller does not
            agree to complete same, Buyer shall have option to
            cancel the Contract.

               ....


                                                                          A-0865-17T1
                                        6
            7. Construction. The terms of the Contract of Sale, and
            any previous Addendums thereto, shall remain in full
            force and effect, except as they may conflict with the
            terms of this Addendum. In the event of such conflict,
            the terms of the Addendum shall control.

Defendant made repairs and the Township issued an August 21, 2014 Certificate

of Occupancy.

      Prior to the closing, purchasers' attorney obtained a title search that

revealed, among other things, a May 29, 2002 deed of dedication and a plat plan

showing a forty-foot-wide roadway dedication of Sharon Station Road, which

abuts the rear of the property. The deed dedicated the road to Upper Freehold

Township "for use as a road and all lawful public purposes including . . . public

rights of way, installations and maintenance of the roadway."

      By deed dated July 8, 2014, which was delivered on August 29, 2014,

defendant transferred title of the property to purchasers. Plaintiff and his wife,

purchaser Genevieve Thomas, subsequently moved into the residence. 3


3
  The record does not establish that purchasers conveyed title to the property to
plaintiff and his wife subsequent to August 29, 2014. At oral argument, plaintiff
represented purchasers had conveyed title to him and his wife but he could not
provide the conveyance date or cite to any evidence of the conveyance in the
record. Plaintiff's standing was not raised as an issue before the motion court.
Because we affirm the dismissal of the complaint on the merits, it is unnecessary
to address plaintiff's standing to appeal the dismissal of a complaint alleging
claims arising from a real estate transaction to which he was not a party and
where the purchasers have not appealed the court's summary judgment order.
                                                                          A-0865-17T1
                                        7
Purchasers subsequently were contacted by the County of Monmouth in 2015 in

connection with the installation of a drainage easement along the rear of the

property, adjacent to Sharon Station Road. Purchasers reached an agreement

with the County on compensation for the drainage easement and were paid

$6000 by the County.

      Fourteen months after the closing, plaintiff and his wife filed this action.4

In the first count of their third amended complaint, they allege defendant

negligently misrepresented the condition of the property and thereby failed to

disclose defects in the condition of the property during the sale. In the second

count, they allege defendant violated the CFA by knowingly concealing defects

in the property that could not be repaired and by making ineffective repairs to

the property. The third count alleges defendant negligently misrepresented the

condition of the property during the sale.




4
  The record on appeal does not contain the original complaint. In their briefs
on appeal, the parties state that plaintiff and his wife filed the initial complaint
on September 9, 2015, against multiple defendants. They voluntarily dismissed
the complaint against defendant Progressive Maintenance, Inc. at the close of
discovery. They resolved their claims against defendants Century 21 Worden &
Green, Brian Graham, Peter McGavisk, and Keystone Asset Management, Inc.
prior to filing the third amended complaint.


                                                                            A-0865-17T1
                                         8
      Following discovery, defendant moved for summary judgment. During

oral argument, plaintiff's counsel argued defendant was not entitled to summary

judgment on the three causes of action asserted in the third amended complaint

because the evidence showed defendant misrepresented that it made the repairs

noted in the Township's request for repairs for the Certificate of Occupancy.

Plaintiff's counsel also argued the causes of action were supported by evidence

that defendant failed to disclose an April 4, 2014 letter from Monmouth County

that defendant received, which revealed plans for improvements to Sharon

Station Road. More particularly, plaintiff asserted the letter disclosed a road

improvement project that would result in an expansion of the road from forty

feet to eighty feet wide and therefore adversely affect the property's value.

      After hearing argument, Judge Katie A. Gummer rendered a detailed and

comprehensive oral opinion addressing the record presented, finding the

undisputed material facts and concluding plaintiff presented insufficient

evidence supporting the three causes of action asserted in the third amended

complaint. Judge Gummer entered an order granting defendant's motion for

summary judgment and this appeal followed.




                                                                          A-0865-17T1
                                        9
                                        II.

      We review a grant of summary judgment de novo, determining whether

there are any genuine issues of material fact when the evidence is viewed in the

light most favorable to the non-moving party. Rowe v. Mazel Thirty, LLC, 209

N.J. 35, 38, 41 (2012). Provided there are no genuine issues of material fact, we

review "the legal conclusions undergirding the summary judgment motion itself

on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co.,

202 N.J. 369, 385 (2010). Summary judgment is appropriate when the evidence

"is so one-sided that one party must prevail as a matter of law." Brill v. Guardian

Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)).

      We briefly review the law applicable to each of the causes of action

asserted in the third amended complaint. As noted, counts one and three allege

negligence and generally assert that defendant negligently misrepresented the

condition of the property. Negligent misrepresentation "may exist when a party

negligently provides false information." Karu v. Feldman, 119 N.J. 135, 146

(1990). A "negligent misrepresentation constitutes '[a]n incorrect statement,

negligently made and justifiably relied on, [and] may be the basis for recovery

of damages for economic loss . . . sustained as a consequence of that reliance.'"


                                                                           A-0865-17T1
                                       10
McClellan v. Feit, 376 N.J. Super. 305, 317 (App. Div. 2005) (citation omitted).

A cause of action for negligent misrepresentation requires proof that: (1)

defendant negligently provided false information; (2) plaintiff was a reasonably

foreseeable recipient of that information; (3) plaintiff justifiably relied on the

information; and (4) the false statements were a proximate cause of plaintiff's

damages. Karu, 119 N.J. at 146-47.

      The second count alleges a violation of the CFA. A person must commit

an "unlawful practice" to violate the CFA. Cox v. Sears Roebuck & Co., 138

N.J. 2, 17 (1994). There are three general categories of unlawful practices:

affirmative acts, knowing omissions, and regulation violations. Ibid.

            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 . . . 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.]

A fact is material when the seller knows or should know it is important to the

particular buyer's decision or when such fact would be important to the decision


                                                                          A-0865-17T1
                                       11
of a reasonable buyer. Ji v. Palmer, 333 N.J. Super. 451, 462 (App. Div. 2000).

"A practice can be unlawful even if no person was in fact misled or deceived

thereby." Cox, 138 N.J. at 17.

      If the alleged consumer fraud violation is an affirmative act, "intent is not

an essential element and the plaintiff need not prove that the defendant intended

to commit an unlawful act." Id. at 17-18. Where the alleged consumer fraud

violation is an omission, "the plaintiff must show that the defendant acted with

knowledge, and intent is an essential element of the fraud." Id. at 18. Failure

to disclose is a violation of the CFA only if "made knowingly with the intent to

deceive the purchasers." Chattin v. Cape May Greene, Inc., 243 N.J. Super. 590,

602 (App. Div. 1990). Our Supreme Court has noted that "a seller of real estate

. . . would be liable for nondisclosure of on-site defective conditions if those

conditions were known to them and unknown and not readily observable by the

buyer." Strawn v. Canuso, 140 N.J. 43, 59 (1995).

      Plaintiff first argues the court erred by dismissing the causes of action

because they were supported by evidence showing defendant failed to disclose

physical defects in the property. As he acknowledges in his brief, plaintiff failed

to make this argument before the motion court. We therefore decline to consider

the argument because it does not involve jurisdictional or public interest


                                                                           A-0865-17T1
                                       12
concerns. Zaman v. Felton, 219 N.J. 199, 226-27 (2014); see also Nieder v.

Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) ("[O]ur appellate courts will

decline to consider questions or issues not properly presented to the trial court

when an opportunity for such a presentation is available 'unless the questions so

raised on appeal go to the jurisdiction of the trial court or concern matters of

great public interest.'" (quoting Reynolds Offset Co. v. Summer, 58 N.J. Super.

542, 548 (App. Div. 1959))).

      Plaintiff also argues the court erred by dismissing his causes of action

founded on the claim defendant failed to disclose a material fact related to the

property. More particularly, plaintiff argues defendant received an April 4, 2014

letter from Monmouth County advising there was a road improvement project

that would affect the property, and defendant failed to disclose the letter to the

purchasers prior to closing. Plaintiff argues the project involves the expansion

of the road from forty to eighty feet, and the proximity of the expanded roadway

to the property will adversely affect the property's value.

      We reject plaintiff's contention substantially for the reasons explained by

Judge Gummer in her reasoned oral decision. We add only that we also reject

the argument because it is not supported by competent evidence. See Hoffman

v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009)


                                                                          A-0865-17T1
                                       13
("Competent opposition [to a summary judgment motion] requires 'competent

evidential material' beyond mere 'speculation' and 'fanciful arguments.'"

(quoting Merchs. Express Money Order Co. v. Sun Nat'l Bank, 374 N.J. Super.

556, 563 (App. Div. 2005))). At her deposition, defendant's representative

Sherri Deals denied any knowledge of receiving the letter, and testified she did

not find the letter in defendant's records and was unaware of any proposed

widening of the road in the rear of the property at any time prior to the closing.

      Plaintiff argues defendant's receipt of the letter is confirmed by a certified

mail receipt addressed to defendant and signed by an unknown individual on

April 7, 2014. However, plaintiff's reliance on the receipt as proof of delivery

of the April 4, 2014 letter to defendant is unsupported by competent evidence.

The receipt is untethered to an affidavit or certification establishing that it is

authentic. See R. 1:6-6; see also N.J.R.E. 901; Wells Fargo Bank, N.A. v. Ford,

418 N.J. Super. 592, 600 (App. Div. 2011) (finding that a document annexed to

a brief is not authenticated without "an affidavit or certification based on

personal knowledge"). Moreover, even if the receipt is authentic, there is no

competent evidence linking the receipt to the April 4, 2014 letter or showing the

receipt was completed as an acknowledgment of receipt of the letter. See

Sullivan v. Port Auth. of N.Y. and N.J., 449 N.J. Super. 276, 279-80 (App. Div.


                                                                            A-0865-17T1
                                       14
2017) (explaining that "bare conclusions" lacking "support in affidavits" are

"insufficient to defeat [a] summary judgment motion").           Thus, the only

competent evidence concerning defendant's purported knowledge of the planned

2014 road expansion is Sherri Deals' testimony, which establishes defendant

did not receive the letter and was unaware of the planned expansion prior to

closing.

      Plaintiff presented insufficient evidence to sustain his negligence and

CFA claims based on defendant's alleged failure to disclose the April 4, 2014

letter because there was no competent evidence defendant received the letter.

Plaintiff did not sustain his CFA claim because defendant could not "knowingly"

and "with the intent to deceive the purchasers" fail to disclose a letter it never

received. Chattin, 243 N.J. Super. at 602. And the evidence does not show

defendant negligently disclosed false information.        To the contrary, the

undisputed evidence demonstrates defendant did not make any representations

concerning Sharon Station Road. We therefore find no basis in the competent

evidence to reverse the court's dismissal of the causes of action based on




                                                                          A-0865-17T1
                                       15
defendant's alleged failure to disclose either the April 4, 2014 letter or the

improvement plan for Sharon Station Road.5

      Plaintiff last argues the court erred by granting defendant summary

judgment on the asserted causes of action based on defendant's alleged

misrepresentations concerning the repairs required by the Township for the

Certificate of Occupancy and the alleged making of defective repairs. Plaintiff 's

argument is without merit sufficient to warrant discussion in a written opinion,

R. 2:11-3(e)(1)(E).     We affirm Judge Gummer's dismissal of the claim

substantially for the reasons stated in her oral opinion.

      Affirmed.




5
  We observe that purchasers obtained a $6000 payment from Monmouth
County for an easement on the property associated with the improvements to
Sharon Station Road.


                                                                          A-0865-17T1
                                       16
