Fernandes v. Deutsche Bank National Trust Co.
157 F. Supp. 3d 383
D.N.J.2015Background
- Deutsche Bank listed a North Wildwood, NJ property for auction on HUBZU; plaintiff Fernandes, through NJ agent Shapiro, submitted an email/escrow offer and a later $322,000 offer before bidding closed.
- HUBZU notified that the property sold to a third party for $281,000; Fernandes sued for consumer fraud, common law fraud, and promissory estoppel seeking specific performance (order forcing Deutsche Bank to sell to her).
- Fernandes recorded a lis pendens in New Jersey asserting the suit affects title; defendants removed to federal court and moved to (1) strike the lis pendens and (2) transfer venue to the Northern District of Georgia based on HUBZU’s forum-selection clause.
- The court considered whether the complaint, on its face, affects title (i.e., supports lis pendens) and whether the HUBZU forum-selection clause governs this dispute.
- Court concluded only the promissory estoppel claim could potentially support specific performance, but the complaint fails to plead a clear and definite promise or definite substantial detriment necessary under New Jersey law and the Statute of Frauds.
- Court struck the lis pendens (discharged without prejudice) and denied the motion to transfer because the forum-selection clause did not apply and the §1404(a) factors did not strongly favor transfer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether complaint "affects title" to allow lis pendens | Fernandes says her promissory-estoppel/specific-performance claim seeks title-affecting relief (sale to her) | Defendants say claims do not show probability of obtaining specific performance and thus do not affect title | Court: Lis pendens discharged — complaint fails to show probable success on promissory estoppel necessary to cloud title |
| Whether a clear and definite promise existed (promissory estoppel) | Fernandes points to agent emails and alleged assurances that a ~93% bid "would be acceptable" | Defendants emphasize communications were indefinite ("likely do it") and Statute of Frauds requires clear, convincing proof for land-sale promises | Court: No clear and definite promise; promissory estoppel not pleaded with required particularity |
| Whether plaintiff suffered definite and substantial detriment | Fernandes contends she lost opportunity to buy unique property | Defendants argue alleged detriment is conclusory and not substantial as pleaded | Court: Detriment not sufficiently alleged; claim unlikely to meet standard |
| Whether HUBZU forum-selection clause governs and mandates transfer | Fernandes: Dispute arose from off-site agent communications, not HUBZU use; she lacked notice of clause | Defendants: Agent Shapiro registered on HUBZU and accepted Terms & Conditions including Georgia forum | Court: Forum clause inapplicable to dispute as pled; transfer denied under §1404(a) given Jumara factors favoring NJ forum |
Key Cases Cited
- M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) (forum-selection clauses generally enforced absent fraud, inconvenience, or contravening public policy)
- Atlantic Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49 (2013) (forum-selection clause enforcement guides transfer analysis under §1404(a))
- Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) (private and public factors to evaluate transfer under §1404(a))
- Estate of Cohen v. Booth Computers, 421 N.J. Super. 134 (App. Div. 2011) (specific performance is an equitable, contractual remedy requiring valid agreement)
- Del Sontro v. Cendant Corp., Inc., 223 F. Supp. 2d 563 (D.N.J. 2002) (promissory estoppel may support specific performance but requires definite promise)