In Matter of Curriden

Full title: In the matter of Gwen Curriden Debtor, Steven R. Neuner, the Chapter 7…

Court: United States Bankruptcy Court, D. New Jersey

Date published: Jun 25, 2008

Case No. 05-38352/JHW, Adversary No. 06-1761 (Bankr. D.N.J. Jun. 25, 2008)

Opinion

Case No. 05-38352/JHW, Adversary No. 06-1761.

June 25, 2008

Steven R. Neuner, Esq., Neuner and Ventura, LLP, Willow Ridge Executive Office Park, Marlton, New Jersey, Counsel for the Chapter 7 Trustee.

Mark A. Rinaldi, Esq., Willow Ridge Executive Office Park, Marlton, New Jersey, Counsel for Gwen Curriden.

Michael A. Katz, Esq., Dempster Haddix, Centerpointe at East Gate, Mt. Laurel, New Jersey, Counsel for Innovative Mortgage Solutions.

Jason N. Sunkett, Esq., Walter Lacey, Esq., Sunkett Lacey, LLC, Laurelwood Professional Blvd., Cherry Hill, New Jersey, Counsel for Trinity Abstract and Danette Thomas.

Keith Owen Campbell, Esq., Cherry Hill, New Jersey, Counsel for Bruce Hurdle.

Stephanie Ritigstein, Esq., Jenkins Clayman, Audubon, New Jersey, Counsel for the Richardsons.

SUPPLEMENTAL OPINION

JUDITH WIZMUR, Bankruptcy Judge

On September 6, 2007, following a three-day trial, this court issued a written decision resolving most of the plaintiffs' ten count adversary complaint. Several issues were left unresolved, including the extent of each defendant's liability to the plaintiffs. Those issues have now been briefed and are ready for final resolution. The plaintiffs were also afforded an opportunity to move to amend their complaint to conform to the evidence presented at trial, which they have done. The plaintiffs amended their complaint to include a count of aiding and abetting against each of the defendants. In addition, the plaintiffs have sought clarification and reconsideration of various issues discussed in the September 6, 2007 opinion. In response, the defendant Innovative Mortgage Solutions LLC filed a cross motion seeking additional findings of fact and conclusions of law, and moved to amend its answer to assert cross claims for indemnification and contribution.

For the reasons explained below, I conclude that both defendants Troy Wallace and Innovative Mortgage Solutions, LLC, are liable to the plaintiffs for treble damages and attorneys fees under the New Jersey Consumer Fraud Act. I conclude further that all counts filed against Danette Thomas and Trinity Insurance, Abstract and Title Agency may be dismissed. As to defendant Bruce Hurdle, I conclude that he is liable to the plaintiffs for 10% of the treble damages and for attorneys fees under the New Jersey Consumer Fraud Act. Further, Innovative's quest for indemnification from Wallace for all losses incurred, and for contribution from Hurdle to the extent of Hurdle's liability, is granted.

FACTS AND PROCEDURAL HISTORY

The plaintiffs, debtor Gwen Curriden and the Chapter 7 trustee, Steven R. Neuner, originally filed a ten count adversary complaint on April 28, 2006 alleging common law fraud, false pretenses and civil conspiracy, as well as violations of the New Jersey Consumer Fraud Act ("NJCFA" or "the Act") and the Real Estate Settlement Procedures Act ("RESPA"), against defendants Troy "Alim" Wallace, Bruce Hurdle, Jeffrey Adams, Innovative Mortgage Solutions LLC, Danette Thomas and Trinity Insurance, Abstract and Title Agency LLC. Following a trial and post-trial submissions, I issued an opinion in which I recited my findings of fact. In re Curriden, Adv. No. 06-1761, 2007 WL 2669431 (Bankr. D.N.J. Sept. 6, 2007). I will not repeat those findings, but rely on the findings herein. The conclusions reached in that first opinion are recounted below to highlight the matters left to be resolved.

In Count 1, the plaintiffs claimed damages based on common law fraud and false pretenses. I concluded that the plaintiffs had clearly established that both Hurdle and Adams "knowingly concealed material facts from Curriden, with the intent that Curriden rely on the information, with resulting damages to Curriden." Id. at *6. Accordingly, I determined that "the elements of common law fraud have been established, and [Hurdle and Adams] are each liable to the plaintiffs for damages incurred by Curriden in connection with this transaction." Id. at *7.¹ The plaintiffs were not able to establish that Wallace himself specifically misrepresented or concealed any facts from Curriden, and "[a]lthough Wallace was the architect of the scheme to defraud Curriden, and orchestrated the transaction," there was no evidence to suggest that he had any "direct contact with Curriden." Id. I concluded therefore that Wallace was not liable under principles of common law fraud.² In addition, I concluded that the plaintiffs had not established any evidence to support the causes asserted against Danette Thomas or Trinity, i.e. that they conspired against or intended to defraud Curriden.

1 In a supplemental submission, the plaintiffs correctly note that no judgment may be entered against Adams because Adams was never served with the complaint, and was therefore not a party to the proceeding.

2 Because Innovative's liability was determined to be based solely upon the vicarious liability tied to Wallace's actions, it follows that Innovative was also not liable for common law fraud under Count 1.

In Count 2, the plaintiffs claimed the existence of a conspiracy to defraud Ms. Curriden. I concluded that there was "no question that the plaintiffs have established that Adams, Hurdle and Wallace acted in concert to inflict a wrong against and injury upon the debtor, which caused her damage." Id. at *8. "The unlawful agreement was the scheme to pay illegal kickbacks to Adams, Hurdle and Richardson, and to deprive the debtor of the equity in her home." Id. I determined further that Innovative was vicariously liable for any compensatory damages attributed to Wallace, which would include any compensatory damages based upon conspiracy grounds. With respect to Thomas and Trinity, I concluded that there was no evidence to support a claim that they had participated in or were a part of that conspiracy. In reaching this conclusion, I noted that while the plaintiffs had not pled a cause of action based on the tort of aiding and abetting, they argued in their submissions that the actions of Thomas and Trinity constituted such tortious conduct. I therefore invited the plaintiffs to move to amend their complaint to reflect this cause of action to the extent that they believed that the matter had already been tried. The plaintiffs have since amended their complaint to assert a cause of action for aiding and abetting against not only Thomas and Trinity, but also against each of the other defendants jointly and severally.³

3 The counts against Wallace, Innovative and Hurdle asserting a cause of action for aiding and abetting overlap with the conclusions otherwise reached as to each defendant, and may be dismissed. As to the Richardsons, they are presently Chapter 13 debtors. The quest by the plaintiffs to declare their claims against the Richardsons to be nondischargeable was denied in my September 7, 2008 opinion. The claims asserted against the Richardsons will be dismissed as well.

As to the plaintiffs' allegations of RESPA violations in Count 3, I determined that Hurdle, Adams and Wallace were each guilty of violating the statutory provisions of the Real Estate Settlement Procedures Act. However, because these violations afforded the same recovery opportunities and overlapped with the same elements and issues addressed under the NJCFA, I did not reduce to judgment the separate damages chargeable against the defendants under RESPA. The liability of Innovative, Thomas or Trinity under RESPA, if any, was not addressed.

The plaintiffs alleged in Count 4 that Hurdle, Adams and Wallace violated the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 et seq. I concluded that the "unlawful agreement and scheme between the three defendants to pay illegal kickbacks to Adams, Hurdle and Richardson, and to deprive the debtor of the equity in her home, constitute[d] not only the affirmative acts of deception and fraud proscribed by the Act, but also the `knowing, concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression, or omission.'" Id. at *9 (quoting N.J.S.A. 56:8-2). Each of the three defendants was found to have violated the NJCFA. I left unresolved the extent of each defendant's individual liability in light of questions regarding joint and several liability and the impact of the New Jersey Comparative Negligence Act. I determined that Innovative was vicariously liable for the compensatory damages related to Wallace's actions, but that Innovative's liability did not extend to the treble damages afforded under the statute. The question of counsel fees was not addressed. Finally, I concluded that insufficient proofs had been presented to establish that Trinity and Thomas committed any violations of the NJCFA.

Counts 5 through 10 were not addressed. Counts 5 through 8 classified the kickbacks and other improper payments made to the defendants as "constructively fraudulent transfers". The plaintiffs sought to avoid those transfers pursuant to 11 U.S.C. § 548(a)(1)(B) ("Fraudulent transfers and obligations") and/or N.J.S.A. 25:2-25(b) ("Transfers fraudulent as to present and future creditors") and 25:2-27(a) ("Transfers fraudulent as to present creditors") and to receive a money judgment and/or attachment and injunctive relief under state law. In Count 9, the plaintiffs characterized the kickbacks and monies paid as "intentionally fraudulent transfers" and sought to avoid the transfers pursuant to 11 U.S.C. § 548(a)(1)(A) and N.J.S.A. 25:2-25(a). Finally in Count 10, the plaintiffs sought to disallow any administrative expense claims by the defendants until the earlier sought judgments were satisfied. Counts 5 through 10 were not prosecuted by the plaintiffs, overlap with the other counts, and may be dismissed here.

Following the issuance of the opinion, the plaintiffs moved for reconsideration and clarification of the decision with respect to the nature and extent of Innovative's liability. Specifically, plaintiffs question Innovative's liability under RESPA and its responsibility for counsel fees under the NJCFA. As well, the plaintiffs seek to extend Innovative's vicarious liability to include treble and/or punitive damages under both the NJCFA and RESPA. Innovative opposed that relief. In a cross motion filed on October 15, 2007, Innovative sought additional findings of fact and conclusions of law, asking the court to conclude that Innovative was not vicariously liable for Wallace's actions.

In addition, the parties have now briefed the aiding and abetting issues, the question of joint and several liability and the impact of the New Jersey Comparative Negligence Act.

DISCUSSION

Because final judgment has not been entered, because many issues were left unresolved in the first opinion, and because some of the issues raised concern novel and complex issues of state law that warrant a second look, I will reconsider, clarify, and expand upon portions of my first opinion. The objectors are correct that "[a] motion for reconsideration is not an appeal. It is improper on a motion for reconsideration to "`ask the Court to rethink what [it] had already thought through — rightly or wrongly.'"" Tyree Org., Ltd. v. Natirar Realty Corp., Civ. A. No. 94-20, 1994 WL 405506, at *2 (D.N.J. Aug. 1, 1994) (quotingOritani Sav. Loan Ass'n v. Fidelity Deposit Co. of Md., 744 F. Supp. 1311, 1314 (D.N.J. 1990) (citing Above the Belt v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983))). See also In re Christie, 222 B.R. 64, 67 (Bankr. D.N.J. 1998) (a motion for reconsideration is not a "second bite at the apple"). Nevertheless, the court has independent authority, pursuant to 11 U.S.C. § 105 and Fed.R.Bankr.P. 9024, to sua sponte reconsider its own orders. In re Waters, No. 04-33547 2007 WL 3069326, *3 (Bankr. D.N.J. Oct. 18, 2001). Rule 60(b) applies here by application of Fed.R.Bankr.P. 9024 to "`compliment the discretionary power that bankruptcy courts have as courts of equity "to reconsider, modify or vacate their previous orders so long as no intervening rights have become vested in reliance on the orders.'"" Id. (quoting In re International Fibercom, Inc., No. 05-16358, 2007 WL 2610892, *4 (9^th Cir. Sep., 2007) (quotingIn re Lenox, 902 F.2d 737, 740 (9^th Cir. 1990))).

Below, I will focus on the open questions regarding the liability to the plaintiffs of each of the defendants, including Innovative and Wallace, Thomas and Trinity, and Hurdle.

I. Innovative and Wallace.

Innovative seeks reconsideration of this court's conclusion that it is vicariously liable for the wrongful acts of its employee, Wallace. The plaintiffs seek reconsideration of my conclusion that Innovative is not liable for treble damages under the NJCFA. The issue of the apportionment of damages among the culpable defendants under NJCFA must be resolved. The plaintiffs also seek to impose liability upon Innovative and Wallace for attorneys fees under the NJCFA. As well, Innovative seeks indemnification for its losses from its agent, Wallace, and contribution from the other defendants to the extent that it pays more than its percentage share of damages as determined herein.

A. Innovative's Vicarious Liability.

Innovative challenges this court's conclusion that it is vicariously liable for the actions of its employee, Wallace, who devised, orchestrated and implemented the scheme to deprive Curriden of the proceeds from the sale of her home. In particular, Innovative seeks findings that:

Mr. Wallace's acts and omissions after Option One approved Mr. Richardson's loan, specifically his acts and omissions at closing on December 31, 2004, fell outside the scope of his employment with Innovative, because those acts were not the kind that Mr. Wallace was hired to perform;

Mr. Wallace's acts and omissions after Option One approved Mr. Richardson's loan, specifically his acts and omissions at closing on December 31, 2004, fell outside the scope of his employment with Innovative, because those acts and omissions were not performed by Mr. Wallace within authorized or expected time and space limits; and

Mr. Wallace was not aided at closing in his wrongdoing by his status as an Innovative employee.

Innovative does not offer any new information or highlight what may have been missed in my first opinion. Rather, Innovative simply disagrees with my findings and conclusions. As noted above, disagreement with an opinion is not a basis for reconsideration. See, e.g., United States v. Omega Inst., Inc., 25 F. Supp.2d 510, 513 (D.N.J. 1998) ("A court will deny a motion for reconsideration where a party simply asks the court to analyze the same facts and cases it has already considered in reaching its original decision.").

In my first opinion, I determined that Innovative was vicariously liable for the actions of its agent on two alternate grounds:

[f]irst, that Wallace acted within the scope of his agency relationship with Innovative Solutions, even though his specific conduct was not authorized, and second, that even if Wallace acted outside the scope of his employment, "he was aided in accomplishing the tort by the existence of the agency relationship."

In re Curriden, 2007 WL 2669431 at *13. Explanations substantiating these conclusions were set forth. Those conclusions will not be revisited here.

The focus of Innovative's quest for reconsideration is on Wallace's conduct and wrongdoing at the closing on the debtor's property on December 31, 2004. Innovative claims that Wallace's acts at the closing fell outside the scope of his employment with Innovative, and that he was not aided in his wrongdoing at the closing by his status as an Innovative employee. Innovative's argument fails to take into account that Wallace's actions at closing cannot be isolated from his actions to devise the scheme to defraud Curriden, to implement the scheme by bringing Richardson to the deal, to utilize his position with Innovative to achieve financing for the deal, and to insure at the closing that the deal was consummated. The entire sequence of events, from the time Adams and Hurdle bought Curriden to Wallace's attention until the closing on December 31, 2004, was a single fraudulent transaction for which Wallace is liable to the plaintiffs and for which Innovative is vicariously liable.

Citing to an Arizona case, Innovative contends that it cannot be held vicariously liable "for damages caused by the acts and omissions of Messrs. Hurdle and Adams [where] it had no control over them, merely because Innovative's rogue employee, Mr. Wallace, acted in concert with them behind Innovative's back." Innovative's Brief on Joint and Several Liability at 8. The case cited by Innovative, Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title Trust of Phoenix, Inc., 5 P.3d 249 (Ariz.Ct.App. 2000) does not support Innovative's quest to escape liability based on Wallace's actions. In Baker, an attorney, Ben Friedman, solicited the plaintiffs to invest in a number of limited partnerships. An employee of Stewart Title, Bonnie DeAngio, participated with Friedman and others to defraud the plaintiffs. Friedman would purchase land under a fake name and then resell the land to the limited partnerships at an inflated price. In reviewing the liability of Stewart Title, DeAngio's employer, which knew nothing about the fraudulent scheme or the participation in the scheme by its employee, the Arizona Court of Appeals determined that Stewart Title may incur vicarious liability for DeAngio's actions that fell within the scope of her employment and that "benefitted and furthered the business of Stewart Title." 5 P.3d at 255. Further, the court determined that DeAngio herself was liable for conspiracy with other participants in the scheme, even for acts not personally committed. However, the court determined that Stewart Title could not be held liable under respondeat superior principles for acts committed in furtherance of the Friedman conspiracy which DeAngio did not commit. "If Stewart Title is liable for conspiracy through respondeat superior, two layers or `double' vicarious liability would result: DeAngio would be liable for a concerted action she did not personally perform and Stewart Title would be further liable. The nexus between Stewart Title and all of the [defendants] thereby becomes too remote."Id. at 256-57.

The conclusions reach in Baker are not inconsistent with the conclusions reached in this case. In Baker, the employer was only charged with vicarious liability for the acts directly committed by its employee DeAngio in furthering the scheme to defraud the plaintiffs. The employer was not charged with vicarious liability for the actions of DeAngio's co-conspirators in which DeAngio did not directly participate. DeAngio herself was held liable not only for the acts she committed in furtherance of the conspiracy, but also for the acts committed by her co-conspirators in which she did not directly participate. Similarly, here, Innovative is not being charged with vicarious liability for the actions of the co-conspirators Adams and Hurdle, but only for the unlawful acts committed directly by its agent, Wallace, in the course of his employment, and in furtherance of the business of Innovative.

Innovative's motion for reconsideration of the conclusion that it is vicariously liable for Wallace's actions is denied.

B. New Jersey Consumer Fraud Act.

The issues raised under the NJCFA pertaining to Wallace and Innovative include Innovative's liability for treble damages, the apportionment of damages among the culpable defendants, and whether Wallace and Innovative are liable for the counsel fees incurred by the plaintiffs in prosecuting this action.

1. Treble Damages.

As noted in my September 6, 2007 opinion, I concluded that Wallace committed a violation of the New Jersey Consumer Fraud Act, and that he was liable to the plaintiffs for treble damages.See N.J.S.A. 56:8-19. I concluded that Innovative Mortgage would be held vicariously liable under agency principles for the plaintiffs' compensatory damages. Turning to the NJCFA, I determined that because the liability of Innovative was based on agency principles of vicarious liability rather than direct involvement by upper management of the company in unlawful practices under the Act, Innovative did not violate the Act, and was not liable for treble damages under the Act. I noted that the New Jersey Supreme Court has held that under common law principles, where the employer is not charged with direct liability for wrongful actions committed by the employer, and no direct participation in wrongdoing by the employer's upper management is shown, but the employer is charged with vicarious liability based on the conduct of its agent, there is no basis to impose punitive damages upon the employer. Lehmann v. Toys "R" Us, 132 N.J. 587, 625, 626 A.2d 445, 464 (1993). Because the award of treble damages under the NJCFA has been characterized as punitive in nature, see, e.g., In re Cohen, 106 F.3d 52, 55 n. 2 (3d Cir. 1997), I concluded that treble damages may not be imposed where the employer is not directly implicated in the wrongdoing. I distinguished two New Jersey Supreme Court cases in which liability for treble damages under the NJCFA was imposed upon the employer on the ground that in those cases, the employer's upper management was directly and actively implicated in the wrongdoing. See In re Curriden, No. 06-1761, 2007 WL 2669431, *19-20 (Bankr. D.N.J. Sept. 6, 2007) (citing to Gennari v. Weichert Co. Realtors, 148 N.J. 582, 691 A.2d 350 (1997) and Strawn v. Canuso, 140 N.J. 43, 657 A.2d 420 (1995)). Unlike the Gennari and Strawn cases, the management of Innovative was not implicated in the unlawful acts committed against the debtor. I reasoned therefore that there was no basis to punish Innovative by imposing the mandatory consequence of treble damages for the actions of its agent, even though the company was liable to the plaintiffs for compensatory damages under agency principles.

Plaintiffs disagree with this result and seek reconsideration of this decision. They posit that in reaching the conclusion that Innovative may not be charged with treble damages under the NJCFA, I improperly equated NJCFA treble damages with common law punitive damages, thereby creating a "blanket exception to the NJCFA which is not supported by either the applicable law or by the policy and purposes of that Act." Pl. Brief at 2. Plaintiffs maintain further that this court's decision was "squarely rejected by the United States Supreme Court in American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 574-576, 102 S. Ct. 1935 (1982), and implicitly rejected by the New Jersey Supreme Court in Cox v. Sears Roebuck . . . and by its reasoning in Gennari v. Weichert Realtors." Id. The plaintiffs also claim that the treble damages provision in the NJCFA serves not only punitive and deterrent goals but also compensatory and remedial purposes. Upon review, I must agree with the plaintiffs that if the agent is liable under NJCFA for treble damages, and vicarious liability has been imposed upon the employer for the acts of its agent, then the employer is also liable for treble damages under NJCFA.

The common law principles on which I relied in my first opinion to determine that, as a general matter, an employer may not be liable vicariously for punitive damages do not apply to the interpretation of NJCFA. In Comment c. of Restatement (Second) of Agency § 217C, there is clear expression that the common law rule regarding the awarding of punitive damages against a master only in limited circumstances "does not apply to the interpretation of special statutes such as those giving triple damages, as to which no statement is made." In the Appellate Division decision inGennari v. Weichert Co. Realtors, 288 N.J. Super. 504, 672 A.2d 1190 (App.Div. 1996), the court, citing to Comment c., confirmed that common law principles limiting vicarious liability for punitive damages are not applicable in the context of statutory treble damages provisions. In Gennari, the court held Weichert vicariously liable for the misrepresentations made by its agents. Weichert argued that even if it was vicariously liable, it should not be subject to the treble damages provisions, citing toEnright v. Lubow, 202 N.J. Super. 58, 493 A.2d 1288 (App.Div. 1985), certif. denied, 104 N.J. 376, 517 A.2d 386 (1986)). In Enright, the court looked to Restatement § 909 to determine whether punitive damages could be assessed against a principal for the actions of his agent. Section 909 allows for punitive damages against the principal "only if" one of several circumstances exist, including that the principal authorized the act, or the agent was unfit and the principal was reckless to employ him, or the agent was acting in a managerial capacity within his scope of employment, or the principal ratified or approved the act. "The rule is based on the notion that it would be improper ordinarily to award punitive damages against one who is personally innocent and therefore liable only vicariously." 202 N.J. Super. at 82, 493 A.2d at 1301.

The Appellate Division disagreed, concluding that there was "nothing in our Act to suggest that a principal should not be subject to the treble damages provision of N.J.S.A. 56:8-19." 288 N.J. Super. at 548, 672 A.2d at 1212. Relying on the "plain language," of the Act, the Appellate Division found Weichert liable for its agents' misrepresentations and subject to the treble damages provision.

On appeal, the New Jersey Supreme Court modified and affirmed the decision. 148 N.J. 582, 691 A.2d 350 (1997). There was no mention of vicarious liability. Instead, the Court cited to language from the trial court that demonstrated the participation of Weichert's management in the process that led to the misrepresentations. "Weichert was more than just a listing broker. It controlled the marketing, advertising, and sale of the homes. . . . Its misrepresentations about the builder and the houses were material, false, and made to induce the purchasers to buy." Id. at 607, 691 A.2d at 366. The Court was thus able to find Weichert liable for a direct violation of the Act, and it did not need to "probe the outer limits of liability under the Act to hold Weichert accountable for its misrepresentations." Id. Nevertheless, the Court did not reject the alternate basis of Weichert's liability under the Act, i.e., vicarious liability, articulated by the Appellate Division, or the exposure of Weichert to treble damages under the Act.

More significantly, the New Jersey Supreme Court in Cox v. Sears Roebuck Co., 138 N.J. 2, 647 A.2d 454 (1994), implicitly recognized the opportunity to impose treble damages upon an employer for the acts of its agents under the Act. A homeowner brought suit against Sears Roebuck under the NJCFA for alleged unlawful practices by Sears Roebuck in connection with the performance of a home improvement contract. Sears Roebuck interacted with the homeowner through its representative who met with the homeowner to sign the home repair contract, through its subcontractor who performed the allegedly inferior work, and through its repairman who tried to correct the problems. The question posed before the court was whether Sears' conduct, which did not constitute an unconscionable commercial practice, nevertheless constituted an "unlawful practice" under the Act. The court determined that Sears committed an unlawful practice under the NJCFA when it violated the consumer fraud regulations promulgated by the New Jersey Attorney General by failing to comply with the necessary permits, inspections and approvals required for the work performed for the plaintiff. Id. at 21, 647 A.2d at 464.

While the Supreme Court did not discuss the vicarious liability of Sears under the Act, the factual pattern revealed that Sears Roebuck, the employer, acted through its employees and subcontractors. There was no discussion of the involvement of any Sears' upper management. Sears was held liable under the Act for treble damages for the work of its employees or agents. By implication, the New Jersey Supreme Court determined that an employer who is vicariously liable for the actions of its employees under the Act is also liable for the mandatory treble damages under the Act. Id. at 24, 647 A.2d at 465. See N.J.S.A. 56:8-19.

In reaching the conclusion that an employer who is vicariously liable for an NJCFA violation is subject to liability for treble damages, I recognize that New Jersey case law has consistently viewed the treble damages provision of the Act, at least in part, as a punitive measure rather than as a compensatory remedy. See,e.g., Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 14, 860 A.2d 435, 442 (2004) ("The remedy of treble damages under the Act, however, was not intended to make the defrauded consumer whole, but to punish the wrongdoer and to deter others from engaging in unfair and deceptive commercial practices."); Cox v. Sears Roebuck Co., 138 N.J. 2, 21, 647 A.2d 454, 463 (1994) ("the Act also punishes the wrongdoer by awarding a victim treble damages"); Cogar v. Monmouth Toyota, 331 N.J. Super. 197, 207, 751 A.2d 599, 605 (App.Div. 2000) ("The New Jersey Supreme Court has noted that the trebling of damages represents a legislative civil punishment of offenders, where as a matter of policy such punishment is appropriate."); Debra F. Fink, D.M.D., MS, PC v. Ricoh Corp., 365 N.J. Super. 520, 580, 839 A.2d 942, 980 (Law Div. 2003) ("Treble damages are a form of punitive damages.").See also Leff v. First Horizon Home Loan, Civ. No. 05-3648, 2007 WL 2572362, *3 (D.N.J. Sep. 4, 2007) (one of the main purposes of the Act is "to punish the wrongdoer through the award of treble damages").

However, "the Act is designed to protect the public even when a merchant acts in good faith." Cox v. Sears Roebuck, 138 N.J. at 16, 647 A.2d at 461. The protection of the public from unconscionable commercial practices or fraud committed by agents in the course of their employment or who are aided in their actions by the existence of the agency relationship with their employer, would be significantly weakened if only the agent was held liable for treble damages under the Act. Imposing the intended consequences of unlawful practices under the Act, including treble damages, upon employers serves to encourage the employer "`to see to it that [its] agents abide by the law.'"American Society of Mechanical Engineers, Inc. v. Hydralevel Corp., 456 U.S. at 572, 102 S. Ct. at 1946 (citing to United States v. A P Trucking Co., 358 U.S. 121, 126, 79 S. Ct. 203, 207, 3 L.Ed 2d 165 (1958)). The plaintiffs are correct to reflect that treble damages are mandatory under N.J.S.A. 56:8-19, and that carving out an exception to the Act for employers who are vicariously liable for the acts of their agents is not supported either by applicable case law or by the policy and purposes of the Act.

The plaintiffs correctly cite to the United States Supreme Court's decision in American Society of Mechanical Engineers (hereinafter "ASME") for the proposition that an entity may be liable for statutory treble damages where its liability arises based on agency principles. ASME is a non-profit company which promulgates many engineering codes and standards. The plaintiff sued ASME, claiming that agents of ASME, one of whom was a competitor of the plaintiff, had conspired with others through ASME to thwart the plaintiff's competitive challenge. American Society of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 102 S. Ct. 1935, 72 L.Ed.2d 330 (1982). The Supreme Court held that ASME could be held liable for the acts of its agents that were taken within their apparent authority. ASME then sought to avoid treble damages under the antitrust statute,see 15 U.S.C. § 15, characterizing such damages as punitive and asserting that "under traditional agency law the courts do not employ apparent authority to impose punitive damages upon a principal for the acts of its agents." Id. at 575, 102 S. Ct. at 1947. The Court agreed that the treble damages provision was punitive, but concluded that treble damages also served as a deterrent against future violations and "as a remedy for the victims of antitrust violations." Id.

Treble damages "make the remedy meaningful by counter-balancing `the difficulty of maintaining a private suit'" under the antitrust laws. Brunswick Corp., supra, at 486, n. 10, 97 S. Ct. at 696, n. 10, quoting 21 Cong. Rec. 2456 (1890) (remarks of Sen. Sherman). Since treble damages serve as a means of deterring antitrust violations and of compensating victims, it is in accord with both the purpose of the antritrust laws and principles of agency law to hold ASME liable for the acts of agents committed with apparent authority. See Restatement § 217C, Comment c, p. 474 (rule limiting principal's liability for punitive damages does not apply to special statutes giving triple damages).

Id. at 575-76, 102 S. Ct. at 1947. See also In re American Biomaterials Corp., 954 F.2d 919, 924 (3d Cir. 1992) ("FollowingASME v. Hydrolevel Corp., the majority of courts have held that imposition of vicarious liability for punitive and exemplary damages is proper when an employee or agent acts within the scope of employment or with apparent authority.").

I note that in at least one federal case, it has been held that under certain special statutes authorizing treble damages, a principal who is liable to a plaintiff based on agency principles may not be liable for treble damages. See, e.g., U.S. v. Southern Maryland Home Health Servs., 95 F. Supp.2d 465, 472 (D.Md. 2000) ("ASME `s holding that employers are vicariously liable for their employee's acts under the antitrust statutes is properly limited to the antitrust context, and does not apply to all statutory schemes which impose treble damages."). I note as well that while approximately eighteen states have enacted some form of consumer protection or consumer fraud statutes that provide for multiple damages in the form of double or treble damages, see Mary Dee Pridgen, "Minimum, multiple and punitive damages — Overview," Consumer Protection and the Law, § 6:10 (Oct. 2007), only a few courts have addressed the question of the extent of an employer's vicarious liability for such statutory damages. For example, in Massachusetts, one court concluded, as we do here, that an employer can be held vicariously liable for a multiple damages award if the wrongful act occurred within the employee's scope of employment. See, e.g., Piers v. Wheeler Taylor, Inc., No. 960088, 1998 WL 1182046, *6 (Mass.Super. Jan. 26, 1998) ("Under the theory of respondeant superior, an employer is vicariously liable for multiple damages for an employee's willful violation of Chapter 93A if done within the scope of employment."). In two other cases, the courts declined to extend vicarious liability to include multiple damages without "something more." In New York, the court required ratification, negligent hiring or some other act on the part of the employer before it would extend vicarious liability to include multiple damages. See, e.g., Lyke v. Anderson, 541 N.Y.S.2d 817, 824 (App. Div. 1989) (an employer is not vicariously liable for statutory treble damages "unless the employer has authorized, participated in, consented to or ratified the conduct giving rise to such damages or deliberately retained an unfit or violent employee with knowledge of his propensities"). See also Chavarria v. Fleetwood Retail Corp., 143 P.3d 717, 727-28 (N.M. 2006) (holding seller liable for punitive damages under Unfair Practices Act for wrongful acts of employees where action was ratified). A Connecticut court declined to impose punitive damages because it found that the statutory language in question was not explicit enough to overturn the pre-existing common law restriction against awarding punitive damages against those who were only vicariously liable. Welton v. Ferrara, No. CV075014334S, 2008 WL 986013, *7 (Conn.Super. Mar. 18, 2008). These cases highlight both sides of this issue, but do not defeat the conclusion I am compelled to reach by my review of the New Jersey statute and relevant cases that the NJCFA imposes liability for treble damages upon an employer who is vicariously liable for the acts of its agent.⁴

4 In Lehman v. Toys `R' Us, supra, a case upon which I relied in my first opinion to conclude that Innovative was not liable for treble damages under the NJCFA, the court determined that under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et. seq., an employer will not be held vicariously liable for punitive damages. The difference between the LAD and the NJCFA is that the latter mandates treble damages when a violation is committed, whereas the former specifies that "all remedies available in common law tort actions shall be available to prevailing plaintiffs." N.J.S.A. 10:5-13 (as amended by L. 1990, c. 12). From this statutory provision, the New Jersey Supreme Court opined that the Legislative intended that "`common law rules of liability, including general principles of agency law', should apply." Id. at 618, 626 A.2d at 461 (citation omitted). The NJCFA contains no such reference to common law tort actions.

I conclude that Innovative is liable to the plaintiffs for treble damages in connection with the unlawful practices committed by its agent, Wallace.

2. Apportionment of Damages.

In my September 6, 2007 opinion, I observed that New Jersey law favors apportioning liability in proportion to the party's relative fault. See, e.g., Blazovic v. Andrich, 124 N.J. 90, 106-09, 590 A.2d 222 (1991); Verni ex rel. Burstein v. Harry M. Stevens, Inc., 387 N.J. Super. 160, 206, 903 A.2d 475, 502 (App.Div. 2006). I noted as well that the New Jersey Comparative Negligence Act has been held by the New Jersey Supreme Court to apply to intentional torts as well as negligent acts, Blazovic v. Andrich, 124 N.J. 90, 106-09, 590 A.2d 222, 230-32 (1991), and to a recovery under the NJCFA.Gennari v. Weichert Co. Realtors, 148 N.J. 582, 608-09, 691 A.2d 350, 367 (1997). To fix the amount of damages to be charged to Wallace and Innovative under the NJCFA, we will review the New Jersey statutes addressing the allocation of liability among tort feasors.

The New Jersey Joint Tortfeasors Contribution Law ("JTCL"), N.J.S.A. 2A:53A-1 to -5, was enacted in 1952 to "`to promote fair sharing of the burden of judgment by joint tortfeasors and to prevent a plaintiff from arbitrarily selecting his or her victim.'" Burt v. West Jersey Health Sys., 339 N.J. Super. 296, 303, 771 A.2d 683, 687 (App.Div. 2001) (quoting Holloway v. State, 125 N.J. 386, 401, 593 A.2d 716 (1991)). The statute was designed "to comport with `basic equitable notations that those whose fault caused the injury should, in good conscience, bear their just shares of the burden.'" Id. (quoting Dunn v. Praiss, 139 N.J. 564, 575, 656 A.2d 413 (1995)). The JTCL also recognized a right of contribution among joint tortfeasors, and if the injured party obtained a judgment against any one of the joint tortfeasors, that tortfeasor was entitled to contribution from the other joint tortfeasors. N.J.S.A. 2A:53A-3. Under the JTCL, "the term `joint tortfeasors' means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them. A master and servant or principal and agent shall be considered a single tortfeasor." N.J.S.A. 2A:53A-1. Under this statute, Wallace, Hurdle and Adams qualify as joint tortfeasors and Innovative is considered a single tortfeasor with Wallace.

The New Jersey Comparative Negligence Act ("NJCNA"), N.J.S.A. 2A:15-5.1 to -5.8, was enacted in 1973 and amended in 1987 to modify the pro rata contribution provisions in the JTCL. "Joint tortfeasors no longer share liability on a pro-rata basis but instead on the basis of proportion of fault as determined by the trier of fact. The effect of the Comparative Negligence Act on contribution is to measure the remedy by percentage of responsibility rather than by the number of culpable parties."Dunn v. Praiss, 139 N.J. 564, 576, 656 A.2d 413, 419 (1995). The trier of fact must determine the percentage of negligence or fault attributable to each respective party.⁵ N.J.S.A. 2A:15-5.2. The total amount of the defendants' resultant liability must add up to 100%. N.J.S.A. 2A:15-5.3 provides in relevant part:

5 N.J.S.A. 2A:15-5.2 provides in relevant part:

a. In all negligence actions and strict liability actions in which the question of liability is in dispute, . . . for negligence resulting in injury to the person or to real or personal property, the trier of fact shall make the following as findings of fact:

(1) The amount of damages which would be recoverable by the injured party regardless of any consideration of negligence or fault, that is, the full value of the injured party's damages.

(2) The extent, in the form of a percentage, of each party's negligence or fault. The percentage of negligence or fault of each party shall be based on 100% and the total of all percentages of negligence or fault of all the parties to a suit shall be 100%.

Except as provided in subsection d. of this section, the party so recovering may recover as follows:

a. The full amount of the damages from any party determined by the trier of fact to be 60% or more responsible for the total damages.

. . .

c. Only that percentage of the damages directly attributable to that party's negligence or fault from any party determined by the trier of fact to be less than 60% responsible for the total damages.

The practical effect of the NJCNA is to modify "`joint and several liability' so that only a defendant determined to be 60% or more responsible for damages would be liable for the total amount of the award." Senate Judiciary Comm. Statement, No. 2703, L. 1987, c. 325. Those who are less than 60% responsible are only responsible up to the amount of their attributable fault.

Here, the unlawful acts committed by Wallace, Hurdle and Adams, with the Richardsons' participation, were masterminded by Wallace. When Adams and Hurdle brought Curriden's plight to Wallace's attention, he orchestrated a scheme to bring in the Richardsons as the buyers of Curriden's property. He promised the Richardsons a substantial cash return from the transaction and he arranged for 100% financing through Innovative for the Richardsons. He arranged for kickbacks to be paid to Adams and Hurdle, resolved the disputes between Adams, Hurdle and Richardson at the closing regarding the distribution of proceeds from Curriden's home, and directed how the settlement checks were to be prepared. He was the central character in this scheme, without whom the transaction would not and could not have occurred. On this record, I conclude that Wallace should be adjudged as 70% liable for the damages sustained by the plaintiffs. Accordingly, under the provisions of NJCNA, Wallace is liable for the full amount of compensatory damages, which are trebled under the NJCFA.

Under vicarious liability principles, Innovative's liability is the same as that of Wallace. The statutory provision reflecting that "[a] master and servant or principal and agent shall be considered a single tortfeasor," N.J.S.A. 2A:53A-1, means that when the principal is charged with vicarious liability for the actions of its agent, the principal's liability will be the same as the liability of its agent. See, e.g., De Los Santos v. Saddlehill, Inc., 211 N.J. Super. 253, 263, 511 A.2d 721, 726 (App.Div. 1986), certif. denied, 107 N.J. 101, 526 A.2d 175 (1987) ("Where an individual's liability is solely vicarious, a plaintiff is entitled to only one satisfaction for the same loss."). The plaintiffs correctly cite to the Restatement (Third) of Torts,⁶ and the Prosser and Keeton text on Torts⁷ for confirmation that a vicariously liable master becomes responsible for the same amount of damages as its servant. While indemnification may be available to the master, apportionment between the master and servant based on relative fault is not.⁸

6 "A person whose liability is imputed based on the tortious acts of another is liable for the entire share of comparative responsibility assigned to the other, regardless of whether joint and several liability or several liability is the governing rule for independent tortfeasors who cause an individual injury." Restatement (Third) Torts Apportionment of Liability § 13 (2000). New Jersey courts have cited approvingly to the Restatement (Third) of Torts. See, e.g., Maisonave v. Newark Bears Professional Baseball Club, Inc., 185 N.J. 70, 89-90, 881 A.2d 700, 712 (2005) (quoting the Restatement (Third) of Torts, Apportionment of Liability, the court remarked that they "look to the Restatement for guidance in declaration of the common law.");Poliseno v. General Motors Corp., 328 N.J. Super. 41, 60, 744 A.2d 679, 689 (App.Div. 2000) (relying on the Restatement (Third) of Torts, Products Liability).

7 "Under the doctrine of respondeat superior, the master becomes responsible for the same act for which the servant is liable, and for the same consequences." W. Page Keeton, et al, Prosser and Keeton on the Law of Torts, § 52 at 346 (5^th Ed. 1984).

8 "Ordinarily there is a sound basis for indemnity, but not for any apportionment of damages between the [master and servant]".Id.

3. Counsel Fees.

As correctly pointed out by the plaintiffs, while the September 6, 2007 opinion noted the liability of Wallace for attorneys' fees under the NJCFA, the opinion did not address Innovative's liability for counsel fees. The NJCFA awards not only treble damages, but also reasonable attorneys' fees and costs to the injured party. N.J.S.A. 56:8-19.⁹ The award of attorneys' fees under the Act is not intended as a punitive measure, but rather is considered to be remedial in nature. Artistic Lawn Landscape Co., v. Smith, 381 N.J. Super. 75, 89, 884 A.2d 828, 837 (Law Div. 2005). The New Jersey Supreme Court in Cox explained that the "fundamental remedial purpose of the Act dictates that plaintiffs should be able to pursue consumer-fraud actions without experiencing financial hardship." Cox v. Sears Roebuck Co., 138 N.J. 2, 25, 647 A.2d 454, 465 (1994). See also Roberts v. Cowgill, 316 N.J. Super. 33, 45, 719 A.2d 668, 674 (App.Div. 1998); Silva v. Autos of Amboy, Inc., 267 N.J. Super. 546, 554, 632 A.2d 291, 295 (App.Div. 1993) (attorneys' fees are part of the remedial purpose behind the Act). The Cox court held that an injured party should be able to "recover reasonable attorneys' fees, filing fees, and costs if that plaintiff can prove that the defendant committed an unlawful practice, even if the victim cannot show any ascertainable loss and thus cannot recover treble damages." Id. at 24, 647 A.2d at 465. In effect, the Act shifts the financial burden of pursuing the claim to the unsuccessful defendant. New Jersey courts have also determined that an award of counsel fees "should not be apportioned according to percentage of liability." Cogar v. Monmouth Toyota, 331 N.J. Super. 197, 211, 751 A.2d 599, 607 (App.Div. 2000).

9 N.J.S.A. 56:8-19 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 or the act hereby amended and supplemented may bring an action or assert a counterclaim therefor in any court of competent jurisdiction. 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, including those brought by the Attorney General, the court shall also award reasonable attorneys' fees, filing fees and reasonable costs of suit.

I conclude that Innovative's vicarious liability for damages under the Act extends to an award of reasonable attorney fees. As with the issue of treble damages, there is no basis to carve out an exception for masters or employers from the mandate of the statute. Plaintiffs' counsel will submit an affidavit of services for review.

C. Indemnification of Innovative by Wallace.

1. Innovative's Motion to Amend.

In its original answer, Innovative included a "Request for Allocation", as follows: "If any co-defendant(s) settles prior to verdict, this defendant(s) [sic] will seek an allocation of the percentage of negligence by the fact finder against the settling defendant(s)." By post-trial motion, Innovative sought to amend its answer to assert indemnification and contribution cross claims against the other defendants. Innovative's motion to amend its answer to include cross claims for indemnification and contribution may be granted.

Under Rule 15(a) of the Federal Rules of Civil Procedure, which applies to adversary proceedings pursuant to FED.R.BANKR.P. 7015, a party may amend a pleading with the written consent of the opposing party or with the express permission of the court, and such relief shall be freely given "when justice so requires." FED.R.CIV.P. 15(a)(2). The Third Circuit has consistently "`held that, absent undue or substantial prejudice, an amendment should be allowed under Rule 15(a) unless "denial [can] be grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment."'" Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004) (quoting Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir. 1994) (quoting Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989))).See also Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L.Ed.2d 222 (1962) (establishing factors).

Unfair prejudice to the opposing party is the most common justification given by the courts when denying leave to amend.See 6 Charles Allen Wright, Arthur R. Miller Mary Kay Kane, Federal Practice Procedure: Civil 2d, § 1487, at 613 (1990 2008 Supp.). See also Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) ("We have consistently recognized . . . that `prejudice to the nonmoving party is the touchstone for the denial of an amendment.'"). The time delay between the date of the original pleading and the date of the proposed amendment is often cited as the source of the unfair prejudice. Under Third Circuit precedent, however, delay alone is an insufficient basis upon which to deny a motion to amend. See Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006); Rutter v. Rivera, 74 Fed.Appx. 182, 186 (3d Cir. 2003) ("We have interpreted this Rule to require the court to grant leave to amend even when the moving party has delayed in proposing the amendment, so long as the opposing party is not prejudiced by the delay."); Cureton v. National Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001) ("The mere passage of time does not require that a motion to amend . . . be denied on grounds of delay."). Instead, there must be some evidence that the opposing party would be "unfairly disadvantaged or deprived of the opportunity to present facts or evidence which it would have offered had the . . . amendments been timely.'" Dole v. Arco Chemical Co., 921 F.2d 484, 488 (3d Cir. 1990) (quoting Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989)).

Here, we have no assertion of unfair prejudice. While it is acknowledged that Innovative's proposed amendment comes over a year after its original answer, approximately nine months after the conclusion of the trial in this matter, and some three months after the September 6, 2007 opinion, the amendment will not impact negatively on the final resolution of this matter. The cross claims asserted by Innovative do not require additional discovery or trial, but merely require the application of the common law principle of indemnification, and contribution under the joint tortfeasor statutes, to the facts developed at trial. I note that the Third Circuit has held that the "discretion to grant amendments under Rule 15(a) `narrows considerably after entry of judgment.'" Pittman v. McDuffy, No. 08-1016, 2008 WL 2187985, *1 (3d Cir. May 28, 2008) (quoting Vielma v. Eureka Co., 218 F.3d 458, 468 (5<sup>th</sup> Cir. 2000)). "Indeed, after final judgment, leave to amend will be granted only sparingly, and will be the `long-odds exception.'" Id. (quoting Werner v. Werner, 267 F.3d 288, 296 (3d Cir. 2001)). See also Principal Life Ins. Co. Subsid. v. U.S., 75 Fed. Cl. 32 (2007) (prejudice and delay favored denying amendment of answer after trial because it would require additional discovery and another trial); Rosenwald v. Vornado, 70 F.R.D. 376 (E.D.Pa. 1976) (motion to amend answer after trial denied where defendants knew of evidence for proposed counterclaim but did not introduce it at trial). However, in this case, while the trial has been completed, final judgment has not been entered. The opposing parties have not been deprived of any opportunity to defend these issues. The parties were arguably put on notice of these potential claims through Innovative's request for allocation in its original answer and through the stated positions of the parties throughout the briefs and arguments at trial. The agency relationship between Innovative and Wallace and the possibility of the imposition of vicarious liability on Innovative impliedly raised the associated common law remedy of indemnification. In addition, with the issuance of my first opinion in this case, I invited consideration of issues regarding contribution among joint tortfeasors. On this record, there is no basis to deny Innovative the opportunity to amend its answer to include its cross claims for indemnification and contribution.

2. Indemnification.

Innovative seeks indemnification for its losses from its agent, Wallace. In New Jersey, common law indemnity has evolved as an equitable remedy for those parties who are found to be only secondarily or vicariously liable for the plaintiff's damages.Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 511, 562 A.2d 202, 205 (1989). "`The right to common-law indemnity arises "without agreement, and by operation of law to prevent a result which is regarded as unjust or unsatisfactory.'"" Capitol First Corp. v. Todd, No. 04-6439, 2006 WL 3827329, *12 (D.N.J. Dec. 27, 2006) (quoting Harley Davidson Motor Co. v. Advance Die Casting, Inc., 150 N.J. 489, 497-98, 696 A.2d 666, 670-71 (1997)). It has generally been confined to those tortfeasors whose liability is not direct, but rather only "`constructive, technical, imputed or vicarious.'" Adler's Quality Bakery, Inc. v. Gaseteria, Inc., 32 N.J. 55, 80, 159 A.2d 97, 110 (1960) (quoting Daily v. Somberg, 28 N.J. 372, 385, 146 A.2d 676, 684 (1958)). See also Interfaith Community Org. v. Honeywell Intern., Inc., 263 F.Supp.2d 796, 871 (D.N.J. 2003) ("A party is entitled to common law indemnification where its liability is entirely constructive, vicarious, and not based on any fault of its own."). In effect, the goal of "common law indemnification [is to] shift the cost of liability from one who is constructively or vicariously liable to the tortfeasor who is primarily liable."Harley Davidson Motor Co. v. Advance Die Casting, Inc., 150 N.J. 489, 497-98, 696 A.2d 666, 671 (1997) (citing to Adler's Quality Bakery, 32 N.J. at 80, 159 A.2d at 110). See also Walsh Securities, Inc. v. Cristo Property Mgmt, Ltd., Civ. No. 97-3496, 2007 WL 951955, *3 (D.N.J. Mar. 28, 2007).

To assert a claim for common law indemnity, the claimant must first establish that both it and the other party have been found liable in tort for the same harm to a third party. United States v. Manzo, 182 F. Supp.2d 385, 411 (D.N.J. 2000). In addition, the party seeking indemnification must be "completely free from fault." Tryanowski v. Lodi Bd. of Educ., 274 N.J. Super. 265, 274, 643 A.2d 1057, 1061 (Law 1994) (citing to Huck v. Gabriel Realty, 136 N.J. Super. 468, 474, 346 A.2d 628 (Law Div. 1975)).See also Cartel Capital Corp. v. Fireco of New Jersey, 81 N.J. 548, 566, 410 A.2d 674, 683 (1980) (citing to the Restatement, Restitution § 96 at 418 (1937)); Polidori v. Kordys, Puzio Di Tomasso, AIA, 217 N.J. Super. 424, 432-33, 526 A.2d 230, 234 (App.Div. 1987) (plaintiff as landlord and general contractor was at least partly at fault and thus not entitled to indemnification); Schramm v. Arsenal Esso Station, 124 N.J. Super. 135, 138-39, 305 A.2d 83, 84-85 (App.Div. 1973). Finally, the liability of the claimant must be constructive, secondary or vicarious.

Here, we have already determined that Innovative's liability is vicarious rather than direct. It had no direct contact with the plaintiff Curriden, and it is liable solely as a result of the actions of its agent, Wallace. Because Innovative is free from fault, and its liability is based exclusively on agency principles, Innovative is entitled to the entry of a judgment against Wallace for indemnification for all of the losses incurred in connection with this proceeding.

To summarize, Wallace is directly liable and Innovative is vicariously liable to the plaintiffs for treble damages under the NJCFA, in the amount of $134,329.23.¹⁰ Wallace and Innovative are also liable to the plaintiffs for counsel fees, which will be determined upon the submission of affidavits of services from counsel. We need not resolve the plaintiffs' causes of action against Wallace and Innovative on the grounds of RESPA violations and aiding and abetting, because they overlap with the ruling to be entered herein. These additional counts will be dismissed.

10 See In re Curriden, 2007 WL 2669431 at *5 n. 17 (actual damages of $44,776.41 trebled at $134,329.23).

II. Thomas and Trinity.

Thomas and Trinity, the title agent and the title company at closing,¹¹ are charged by the plaintiffs, as the other defendants are, with common law fraud, conspiracy, RESPA and NJCFA violations and aiding and abetting the other defendants. In my initial opinion, I rejected the causes of action against Thomas and Trinity based on common law fraud, conspiracy and NJCFA, noting that "no proofs were submitted that would impose upon Thomas [and presumably Trinity under vicarious liability principles] liability for conspiratorial participation in the scheme to defraud Curriden of the equity in her home, or an intent to deceive Curriden, or for engaging in an unconscionable commercial practice." In re Curriden, 2007 WL 2669431 at *20. Remaining to be resolved are the counts against defendants Thomas and Trinity based on alleged RESPA violations and the tort of aiding and abetting. I will first enter fact findings relating to Thomas and Trinity, and will then address the remaining causes of action against those defendants.

11 There is no factual predicate presented for the imposition of direct liability upon Trinity. Liability would be premised on vicarious liability principles, and would be considered only if the conduct of Trinity's agent, Thomas, was found to be tortious, or violative of a statutory proscription.

A. Facts.

The testimony by Curriden, Richardson and Thomas about what happened at the closing on Curriden's home on December 31, 2004 differed somewhat.¹² For instance, Curriden testified that when Thomas presented her with the HUD-1 Settlement Statement, Curriden asked her if she should have a lawyer to help her understand the transaction. According to Curriden, Thomas told her that she did not need an attorney. Thomas denies that she made that statement to Curriden. I resolve all factual discrepancies against Thomas, because her credibility was strained by discrepancies between her deposition testimony and her testimony at trial,¹³ and because her memory of what transpired at the closing was vague.¹⁴

12 All of the factual allegations of wrongdoing against Thomas and Trinity appear to focus on the events that transpired at the closing and after the closing.

13 For instance, at her deposition, Thomas could not recall who controlled how the checks should be written. T480-3 to 6 (2/22/07). At trial, she testified that she did in fact remember Wallace giving her instructions regarding the checks. T466-13 to 14 (2/22/07) and T571-2 to 4 (3/2/07).

14 For instance, Thomas did not remember that Hurdle and Adams attended the closing, even though the testimony of Curriden and Richardson, as well as Hurdle's deposition, all support the factual conclusion that Hurdle and Adams were in attendance at the closing. T496-3 to 11 (2/22/07).

Borrowing from the recitation in my first opinion, I find the following relevant facts regarding the closing on Curriden's home. The closing took place on New Years Eve, December 31, 2004, at about 8:00 p.m., in Trinity's offices. Curriden was picked up after work by Hurdle and brought to the settlement. Curriden was basically on her own at the closing, she was tired, scared and confused during the entire process, and she did not understand what she was signing.

When she was presented with the HUD-1 Settlement Statement, Curriden inquired about whether or not she needed legal counsel. Thomas, the closing agent, informed her that she did not need a lawyer and that it would "complicate things."¹⁵ The settlement sheet, which was prepared by Trinity Title prior to the closing, reflected that the purchase price of the property was $125,000. The mortgage payoff was noted as $72,768.0, with an additional $1,500 escrow pending payoff release. The settlement costs of $7,099.64, which included all of the Innovative Mortgage charges for obtaining the Richardsons' mortgage loan and all of Trinity Title's expenses, were charged to Curriden as a "Seller Contribution".¹⁶ After deducting the mortgage payoff and all settlement costs, the "Cash to Seller" was noted as $41,602.74.

15 T67-25 (2/21/07); T127-9 (2/21/07).

16 Curriden, as the seller, was charged with 100% of the buyers' closing costs notwithstanding the fact that the Agreement of Sale specified that the seller would be responsible for only "up to 6% of the buyer's closing costs". Exh. P-4, ¶ 24.

Before the final disbursement checks were presented at the closing, without explanation to the debtor, the Richardsons, Wallace, Adams, Hurdle and Thomas all left the room, leaving only the debtor, her daughter and her daughter's fiance at the settlement table. In Thomas' office across the hall from the settlement, Cynthia Richardson expressed to Wallace that she was upset and angry at the fact that she and her husband would be receiving less than the $40,000 that she had been promised from the transaction. She was also upset about the fact that she and her husband would not be taking possession of the property immediately, but that, according to Adams and Hurdle, the debtor needed to stay in the property for another month. Apparently, before the closing actually took place, Wallace, Adams and Hurdle had agreed that Adams and Hurdle would each receive a $5,000 "finder's fee". Wallace determined that the $10,000 in fees would be deducted from the $40,000 payment promised to the Richardsons. After heated debate among the Richardsons, Wallace, Adams and Hurdle in Thomas' office, in Thomas' presence, the defendants agreed that the debtor could continue to occupy the property during January 2005, that she would pay one month's rent in the amount of $1,160, which approximated the cost of one month's mortgage payment to be paid by the Richardsons, that the rental payment would be placed in escrow at Trinity Title and that the rental payment would be paid from the finder's fees otherwise payable to Adams and Hurdle. Thomas offered and provided a form Lease Agreement to the parties to document the rental arrangement to be entered into between Curriden and Richardson for January 2005. Wallace gave Thomas instructions to distribute the "cash to seller" in four checks made out to Curriden in the following amounts:

$26,602.74 (intended for Richardson) $4,420.00 (intended for Hurdle) $4,420.00 (intended for Adams) $5,000.00 (intended for Curriden) The debtor was not consulted about these arrangements. Adams returned by himself to the settlement conference room with the disbursement checks, where he instructed Curriden to sign the back of three of the four checks made out to her, which she did. He also presented her with her check for $5,000. The three checks signed by Curriden were turned over to Richardson, Adams and Hurdle, respectively. Thomas did not participate in presenting the checks to Curriden or instructing her to sign them.

About a month after the settlement, Curriden received a check from Trinity Title in the amount of $1,160, which was the amount that had been escrowed for the January rental payment. Cynthia Richardson was notified about the payment as well, and she contacted Curriden to retrieve the money. Richardson and Curriden met, and Curriden signed over the check to Richardson. Curriden also received another check from Trinity Title, in the amount of $1,500, which had been escrowed at settlement, which she also signed over to Richardson.

B. Aiding and Abetting.

Aiding and abetting is generally accepted to mean "[t]o assist or facilitate the commission of a crime, or to promote its accomplishment." Black's Law Dictionary (8^th Ed. 2004). In Tarr v. Ciasulli, 181 N.J. 70, 853 A.2d 921 (2004), the New Jersey Supreme Court addressed the concept of aiding and abetting in the context of New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. While neither term was defined under the Act, the court recognized that the "`ordinary and well understood meaning'" of the words could be found in the dictionary. 181 N.J. at 83, 853 A.2d at 928. Referencing Webster's II New College Dictionary, the court determined that "[a]mong other things, `aid' means `[t]o give help or assistance to,'" and "`abet' means `[t]o incite, encourage, or assist, esp. in wrongdoing.'" Id. (quoting Webster's at 23 (Rev. Updated Ed. 2001)). The court noted that the Third Circuit predicted in Failla v. City of Passaic, 146 F.3d 149, 158 (1998) that the court would adopt the definition for aiding and abetting provided in the Restatement (Second) of Torts § 876(b)¹⁷. The court agreed that the Restatement provided the proper standard and that it was "consistent with the common usage of those terms." Id. at 84, 853 A.2d at 929. The court therefore held that to establish aiding and abetting,

17 The Restatement § 876(b) provides:

For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.

""(1) the party whom the defendant aids must perform a wrongful act that causes an injury;

(2) the defendant must be generally aware of his role as part of an overall illegal or tortious activity at the time that he provides the assistance; [and]

(3) the defendant must knowingly and substantially assist the principal violation.'"

Id. (quoting Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 127 (3d Cir. 1999)).

The New Jersey Appellate Division has since expanded the application of the Tarr test beyond the LAD context, noting that "the general principles recited by the Court in adopting the Restatement's definition of aiding and abetting liability have broader application." State, Dept. of Treasury, Div. of Inv. ex rel. McCormac v. Qwest, 387 N.J. Super. 469, 484 904 A.2d 775, 784 (App.Div. 2006) ("We conclude that an action against a defendant for the tort of aiding and abetting is cognizable and, further, we find the elements as found by the Court in Tarr equally apply to a non-LAD tort action.").

The three Tarr criteria, including (1) wrongdoing by the party aided by the defendant which caused an injury; (2) which occurred with the defendant's knowledge or awareness of the illegal or tortious activity and (3) the knowing and substantial assistance by the defendant in the commission of the wrongful act, must be applied to the facts involving Thomas.

The participation of Thomas in the transaction, whereby Curriden was wrongfully deprived of the equity in her home, does not constitute an actionable tort of aiding and abetting fraudulent conduct. The first of the three Tarr elements is apparent, i.e., that illegal wrongdoing occurred at the closing on Curriden's home that was aided by Thomas' actions and that caused Curriden's injury. However, the proofs do not establish that Thomas was generally aware of her role as part of the overall illegal or tortious activity at the time she made out the checks to Curriden in various amounts, or that she knowingly and substantially assisted in the scheme to deprive Curriden of the equity in her home.

Thomas' actions at the closing may be criticized in several respects. Thomas failed to adequately explain the closing documents, particularly the HUD-1 statement, to Curriden. She failed to advise Thomas that she could retain counsel to assist her with the settlement. She made out the HUD-1 Statement, on which she allocated all closing costs, in excess of $7,000, to Curriden, notwithstanding the fact that the contract of sale held Curriden responsible only for "up to 6% of the buyer's closing costs."¹⁸ She overheard the arguments among the Richardsons, Wallace, Hurdle and Adams about how the checks to be written to Curriden should be apportioned, but failed to return to the settlement table to ask Curriden if she agreed with the arrangement. She assisted Richardson by offering a form lease to document the rental agreement for the following month. Her office facilitated the release of the escrow funds being held by Trinity to Richardson.

18 Exh. P-4 § 24.

None of these actions, considered individually or taken together, evidence the fact that Thomas knew of the fraud being perpetrated on Curriden and knowingly aided and encouraged the consummation of the scheme. The testimony of the witnesses confirmed that Thomas was casually acquainted with the Richardsons and Wallace at the time of the closing, and she was privy to the arguments between them about the amounts to be received from the proceeds by Richardson, Hurdle and Wallace. But the facts as presented would be equally consistent with a scenario that would have involved Curriden's agreement to distribute the proceeds among the parties. There are no proofs upon which we could surmise that Thomas shared with Wallace, Hurdle and Adams the intent to defraud Curriden of the proceeds of her home. Citing to Shepherd v. Hunterdon Development Ctr., 336 N.J. Super. 395, 424, 765 A.2d 217, 233 (App.Div. 2001),aff'd in part, rev'd in part, 174 N.J. 1, 803 A.2d 611 (2002), the New Jersey Superior Court, Appellate Division noted that:

[t]o "aid or abet" under the LAD, "the individual must willfully and knowingly associate himself or herself with the unlawful act, and seek to help make the act succeed. The defendant must share the same intent as the one who actually committed the offense."

State, Dep't of Treasury v. Qwest, 387 N.J. Super. at 483, 904 A.2d at 783. The proofs here fail to establish that Thomas willfully and knowingly associated herself with the conspiracy to defraud the debtor, or that she shared the intent of Wallace, Hurdle and Adams.

The cause of action against Thomas and Trinity based on the common law tort of aiding and abetting is rejected and must be dismissed.

C. Real Estate Settlement Procedures Act.

The plaintiffs charge defendants Thomas and Trinity with violating the prohibition against kickbacks and unearned fees found in the Real Estate Settlement Act ("RESPA"), 12 U.S.C. § 2601 et. seq. In particular, section 2607 prohibits two types of activities, the first involving kickbacks for business referrals, and the second involving the splitting of charges.

The prohibition against making or offering kickbacks and unearned fees is found in Section 2607(a) which provides:

(a) Business referrals

No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.

12 U.S.C. § 2607(a). The key elements of this prohibition appear to be that the defendant gave or accepted a fee, that the fee was paid pursuant to an agreement or understanding, that the fee was paid as compensation for a referral of business in connection with a real estate settlement service, and that the transaction involved a federally related mortgage loan. Only the last necessary element, that the transaction involved a federally related mortgage loan, was established on this record. See In re Curriden, 2007 WL 2669431 at *12 n. 23.

The first element, requiring a demonstration that the defendant gave or accepted a fee, has no support in this record. Neither Thomas nor Trinity received a fee beyond the customary fee assessed by the closing agent at settlement. The fact that Thomas prepared checks to Curriden in various denominations, according to Wallace's instructions, does not constitute the act of "giving" required by the statute. Most notably, the checks were made out to Curriden. While Thomas was privy to the discussions among the other defendants relating to the receipt of proceeds from the sale, she did not act to "give" those proceeds to the defendants.

On the issue of whether the fees paid were paid pursuant to an agreement or understanding, the federal regulations¹⁹ describe an "agreement or understanding" as follows:

19 The Department of Housing and Urban Development ("HUD") is the administrative agency charged with enforcing RESPA. It is authorized by statute to prescribe rules and regulations, and to make interpretations of RESPA. 12 U.S.C. § 2617(a). Section 3500.14 pertains to kickbacks and unearned fees.

(e) Agreement or understanding. An agreement or understanding for the referral of business incident to or part of a settlement service need not be written or verbalized but may be established by a practice, pattern or course of conduct. When a thing of value is received repeatedly and is connected in any way with the volume or value of the business referred, the receipt of the thing of value is evidence that it is made pursuant to an agreement or understanding for the referral of business.

24 C.F.R. § 3500.14. See also Carias v. Lenox Financial Mortg. Corp., No. 07-0083, 2008 WL 397339, *3 (N.D.Cal. Feb. 8, 2008). No evidence has been presented here to establish "a practice, pattern or course of conduct" regarding the reference of business to Thomas and Trinity. Nor do the proofs establish that Thomas agreed to or understood that by preparing the checks in that particular manner, the payments were to be in exchange for the referral of business. See, e.g., Stith v. Thorne, 488 F. Supp.2d 534, 557 (E.D.Va. 2007).

The second prohibition specified in section 2607 concerns the prohibition against splitting charges, and provides as follows:

No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.

12 U.S.C. § 2607(b). To establish a violation of section 2607(b), a plaintiff must show that the defendant shared fees received in connection with a real estate settlement service in a transaction involving a federally related mortgage loan. Again, the only element of this prohibition that the plaintiffs have established is that the transactions involved a federally related mortgage loan. The fee received by Thomas and Trinity was received for services actually performed. There was no splitting of any charges involved in the transaction involving Thomas and/or Trinity.

The plaintiffs' quest to impose RESPA liability upon the defendants Thomas and Trinity is denied.

To summarize, Thomas is not liable to the plaintiffs under any of the theories advanced by the plaintiffs in their multi-count complaint against her. The complaint will be dismissed as to Thomas and Trinity in its entirety.

III. Hurdle.

In my first opinion, I determined that Bruce Hurdle committed common law fraud, participated in a civil conspiracy, and violated both the NJCFA and RESPA. I noted Hurdle's contention that his liability to the plaintiffs should not be imposed as joint and several responsibility with the other defendants, but that liability should be apportioned fairly among the defendants. I will first consider plaintiffs' argument that Hurdle's participation in a civil conspiracy causes him to be liable for all of the damages incurred by the plaintiffs. I will then assess the extent of Hurdle's culpability and determine the amount of the judgment to be imposed against Hurdle in favor of the plaintiffs. Finally, I will determine whether and to what extent Hurdle is liable to Innovative for contribution.

A. Joint Liability of Civil Conspirators.

The plaintiffs contend that because the actions of Hurdle and his co-conspirators were the product of a conspiracy, all of the culpable defendants are jointly and severally liable to the plaintiffs for the full amount of damages. The plaintiffs contend further that the co-conspirators must be treated as a single actor, and that concepts of comparative fault applicable to separate actions causing the same injury do not apply.

As noted above, under the Joint Tortfeasor Contribution Law ("JTCL"), N.J.S.A. 2A:53A-1, the term "joint tortfeasor"

means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.

The purpose of the JTCL is "to establish the right of joint tortfeasors to seek allocation among themselves of the burden of their fault." Englert v. The Home Depot, 389 N.J. Super. 44, 54,

911 A.2d 72, 79 (App.Div. 2006). The same purpose is evident in the New Jersey Comparative Negligence Act, N.J.S.A. 2A:15-5.1 et. seq., ("NJCNA") which modified the JTCL by making the quantum of contribution dependent upon the percentage of fault rather than the number of defendants. "[T]he two statutes are designed to promote the ultimate purpose of achieving shared responsibility as among joint tortfeasors and to avoid the harsh results otherwise imposed by common law rules preventing allocation of fault among joint tortfeasors." Diocese of Metuchen v. Prisco Edwards, AIA, 374 N.J. Super. 409, 414-15, 864 A.2d 1168, 1171 (App.Div. 2005). The term "joint tortfeasor" in the Comparative Negligence Act is construed in light of the definition provided in the JTCL. Wundrack v. Armstrong World Industries, Inc., Civ. A. No. 89-1912, 1991 WL 172956, *7 (D.N.J. May 28, 1991), aff'd, 958 F.2d 366 (3d Cir. 1992) (the NJCNA modifies the JTCL but does not affect the meaning of joint tortfeasor).

The definition of joint tortfeasor, applicable to the Comparative Negligence Act, applies to the defendants herein. The co-conspirators involved in the scheme to defraud Curriden are jointly or severally liable in tort for the same injury to Curriden. There is no exception carved into the statute for participating in a civil conspiracy. As the Supreme Court of New Jersey expressed in Blazovic v. Andrich, 124 N.J. 90, 107, 590 A.2d 222, 231 (1991), "the guiding principle of comparative fault [is] to distribute the loss in proportion to the respective faults of the parties causing that loss." Neither the legislature nor the New Jersey courts have articulated an exception for co-conspirators to the apportionment of damages based on the percentage of culpability upon each defendant as directed under the Comparative Negligence Act.

The cases cited by the plaintiffs in support of their contention that co-conspirators are jointly and severally liable to the plaintiffs, and that the concepts of comparative fault do not apply, do not support the plaintiffs' position. For instance, in Banco Popular North America v. Gandi, 184 N.J. 161, 876 A.2d 253 (2005), the New Jersey Supreme Court, ruling on the appeal of a motion to dismiss, recognized that the defendant attorney charged with certain alleged bad acts may be liable for civil conspiracy. In connection with that liability, the court stated generally that "[c]ivil conspirators are jointly liable for the underlying wrong and resulting damages." Id. at 178, 876 A.2d at 263. The court's reflection that civil conspirators are jointly liable does not mean that such co-conspirators are not "joint tortfeasors" under both the JTCL and the NJCNA. Nothing in theBanco Popular decision addresses the application of these comparative negligence statutes, or interferes with the basic premise that co-conspirators are subject to those statutes.

Similarly, in Board of Ed. of City of Asbury Park v. Hoek, 38 N.J. 213, 183 A.2d 633 (1962), a case decided after the JTCL was enacted but before the initial version of the NJCNA was passed, the court reflected that "[p]roof of a conspiracy makes the conspirators jointly liable for the wrong and resulting damages."Id. at 238, 183 A.2d at 646. In Hoek, one of the two co-conspirators settled with the plaintiff prior to trial for $1,750. A judgment against the other co-conspirator was entered in the amount of $10,292.98. The trial judge molded the judgment against the non-settling co-conspirator to impose an award of 50% of the damages found by the jury. The case was reversed and remanded to the lower courts on various grounds. However, the treatment of the joint tortfeasors, reflecting a pro-rata apportionment of damages among them under the JTCL, was not disturbed by the Supreme Court. The court did not reflect in its ruling the doctrine proposed by the plaintiffs, that concepts of comparative fault do not apply to the apportionment of damages among co-conspirators.

The plaintiffs also contend that the co-conspirators here, having acted together, must be treated as a single actor in determining apportionment of damages, without consideration of comparative fault among them. The plaintiffs cite the Blazovic case for this proposition. In the Blazovic case, the victim of an assault which occurred outside of a bar sued the five assailants and the bar. The alleged five assailants settled with the plaintiff prior to trial. The jury awarded the plaintiff $150,000 in compensatory damages, and held the bar 70% responsible for the plaintiff's injuries. The culpability of the intentional tortfeasors was not considered in the jury's allocation of fault. The Supreme Court determined that the verdict was incomplete because the jury's apportionment of fault excluded the intentional tortfeasors. The court stated that "the intentional tortfeasors, who acted together, and whose wrongful conduct was distinct from that of [the bar] should initially be treated as a single party for apportionment purposes." 124 N.J. at 108, 590 A.2d at 232. However, the treatment of the group of intentional tortfeasors as a single party for apportionment purposes was directed by the court partly because all of the intentional tortfeasors had settled with the plaintiff, and there was no need to ascertain individual fault among them. The court cautioned that "[i]n a case involving nonsettling intentional tortfeasors, a trial court ordinarily should also instruct the jury to apportion fault individually among the intentional tortfeasors."Id. at 109 n. 4, 590 A.2d at 232 n. 4.

Thus, while Hurdle, Wallace, Adams and Richardson may be considered joint tortfeasors under the JTCL and the NJCNA, Hurdle's responsibility for plaintiff's injuries will be apportioned according to Hurdle's relative degree of fault in connection with the unlawful acts committed.

B. Allocation of Damages.

Without question, Wallace was the lead player in the scheme to defraud Curriden out of the equity in her home. However, he did not act alone. Hurdle played a role in Wallace's scheme to defraud Curriden. As I described in my September 6, 2007 opinion, Hurdle initially accompanied Adams to Curriden's home, and represented to her that he could assist in selling her property, even though he was not a licensed realtor or broker. After Wallace pitched the sale to the Richardsons, Hurdle returned to Curriden's home with the Richardsons for an inspection tour. Although he was not an official Innovative employee, Hurdle assisted Wallace in coordinating matters associated with the settlement. When the closing was scheduled, Hurdle contacted Curriden, informed her of the date and time, and agreed to transport her to the closing at the Trinity offices. He attended the closing, participated in discussing the disbursement of the proceeds of Curriden's home, and agreed to reduce his "finder's fee" to allow Curriden to remain in the house for one month.

In effect, while Hurdle did not plan or orchestrate Wallace's scheme, he assisted Wallace in the plan's implementation. On this record, I conclude that Hurdle should be adjudged 10% liable for the damages sustained by the plaintiffs.

C. Judgment of Liability.

As I determined in my September 6, 2007 opinion, Hurdle violated both the New Jersey Consumer Fraud Act and RESPA. Now that I have determined that Hurdle is liable for 10% of the plaintiffs' compensatory damages, I must compare Hurdle's liability under each statute to determine the amount of the judgment to be entered against him in favor of the plaintiffs.

Under the New Jersey Consumer Fraud Act, Hurdle's 10% liability translates to $13,432.92. He is also liable for counsel fees, in an amount to be determined. The award of counsel fees is not subject to apportionment among the several defendants.

Under RESPA, Hurdle is liable for the "finder's fee" that he illegally received as part of the closing costs. That amount was $4,420.00 and would be trebled pursuant to 12 U.S.C. § 2607(d)(3) to $13,260.00. In addition, Hurdle is jointly and severally liable for reasonable attorneys' fees under section 2607(d)(5).

The plaintiffs can only recover once for the damages that they incurred. Because the damages under the NJCFA as they apply to Hurdle afford a greater recovery then the damages under RESPA, judgment will be entered in the amount of $13,432.92, plus counsel fees, against him.

D. Contribution.

As noted above, Innovative seeks contribution from Hurdle toward its obligation to the plaintiffs. Under the New Jersey Comparative Negligence Act, Innovative is entitled to receive such contribution to the extent of Hurdle's direct liability to the plaintiffs.

The NJCNA limits a defendant's liability to "that percentage of the damages directly attributable to that party's negligence or fault," provided that the percentage is less than 60%. N.J.S.A. 2A:15-5.3. To the extent that a defendant pays more than the percentage of the damages directly attributable to that party's fault, the Act allows that defendant to seek contribution from the other joint tortfeasors up to each tortfeasor's assessed percentage of liability. See Steele v. Kerrigan, 148 N.J. 1, 13, 689 A.2d 685, 690 (1997) ("The Comparative Negligence Act modified the Joint Tortfeasors Contribution Law to require that contribution be determined by percentage of fault assigned by the trier of fact, rather than on a pro rata basis."); Dunn v. Praiss, 139 N.J. 564, 576, 656 A.2d 413, 419 (1995); Burt v. West Jersey Health Sys., 339 N.J. Super. 296, 306, 771 A.2d 683, 689 (App.Div. 2001). The statute expressly provides that "[a]ny party who is compelled to pay more than his percentage share may seek contribution from the other joint tortfeasors." N.J.S.A. 2A:15-5.3. The Act recognizes that a joint tortfeasor who is determined to be less than 60% at fault for the plaintiff's losses should ultimately be liable only for its percentage of fault. See Blazovic v. Andrich, 124 N.J. 90, 105-06, 590 A.2d 222, 230-31 (1991); Young v. Latta, 123 N.J. 584, 594, 589 A.2d 1020, 1025 (1991) (the Act "provide[s] a fairer method for allocating liability among tortfeasors, given the inequity of requiring a slightly-negligent tortfeasor to shoulder a disproportionate share of liability based on the happenstance of the number of tortfeasors").

Here, we have determined that Wallace (and by extension Innovative) is liable for 70% of the plaintiffs' damages and that Hurdle is 10% liable. Therefore, Innovative and Wallace are jointly and severally liable for all of the plaintiffs' damages. Innovative may seek contribution from Hurdle for up to 10% of the treble damages payable to the plaintiffs.²⁰

20 Liability for counsel fees under the NJCFA may not be apportioned, Cogar v. Monmouth Toyota, supra, so that all of the responsible defendants are jointly and severally liable for the counsel fees.

IV. Conclusion.

In summary, as explained and discussed above, I have determined that:

(1) Innovative's motion for reconsideration is denied.

(2) Wallace and Innovative are determined to be 70% liable for the plaintiffs' damages under the New Jersey Consumer Fraud Act.

(3) Innovative's vicarious liability extends to treble damages and counsel fees under the NJCFA.

(4) Judgment will be entered in favor of the plaintiffs and against Wallace and Innovative in the amount of $134,329.23, plus counsel fees (to be determined).

(5) Plaintiffs' counsel will submit affidavits of services for review.

(6) Innovative's motion to amend its answer to assert cross claims for indemnification and contribution is granted.

(7) Judgment is entered in favor of Innovative and against Wallace for indemnification for all damages incurred.

(8) All counts asserted in the complaint, including the aiding and abetting amendment, are dismissed as to Thomas and Trinity.

(9) Hurdle is determined to be 10% liable for the plaintiffs' damages under the New Jersey Consumer Fraud Act.

(10) Judgment will be entered in favor of the plaintiffs and against Hurdle in the amount of $13,432.92 plus counsel fees (to be determined).

(11) Innovative is entitled to contribution from Hurdle to the extent of his 10% liability, $13,432.92.

(12) All other counts of the plaintiffs' complaint shall be dismissed.

Plaintiffs' counsel are directed to submit affidavits of services in connection with the prosecution of plaintiffs' claims by July 30, 2008. Defendants may file objections to the fees requested through August 15, 2008. If objections are filed, a hearing will be scheduled.

NOTICE OF JUDGMENT OR ORDER Pursuant to Fed.R.Bankr.P. 9022

Please be advised that on June 25, 2008, the court entered the following judgment or order on the court's docket in the above-captioned case:

Document Number: 100-73

Supplemental Opinion (related document:[73] Motion to Reconsider (related document:[70] Order (Generic)) filed by Defendant Innovative Mortgage Solutions LLC). The following parties were served: Plaintiff, Plaintiff's Attorney, Defendant, Defendant's Attorney. Signed on 6/25/2008 (eag,)

Parties may review the order by accessing it through PACER or the court's electronic case filing system (CM/ECF). Public terminals for viewing are also available at the courthouse in each vicinage.