SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1226-20

MARIA TLATELPA,

Plaintiff-Appellant,

v.

MAURICIO TORRES,

Defendant-Respondent.

__________________________

Submitted December 8, 2021 – Decided February 28, 2022

Before Judges Whipple and Susswein.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Docket No. L-2829-19.

Bastarikka, Soto, Gonzalez & Somohano, LLC, 

attorneys for appellant (Franklin G. Soto, on the brief). 

Law Office of Abe Rappaport, attorneys for respondent

(Kevin E. Lee, on the brief).

PER CURIAM

This case arises from an "as is" sale of a single-family residential property. 

Plaintiff Maria Tlatelpa, the purchaser, appeals from a December 7, 2020, Law 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Division order granting summary judgment in favor of defendant, Mauricio 

Torres, the seller, dismissing plaintiff's complaint alleging fraud under the New 

Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -20 ("CFA") and the common 

law. After carefully reviewing the record in light of the applicable principles of 

law, we affirm.

I.

We briefly summarize the pertinent facts and procedural history. On 

August 20, 2018, the parties closed on the sale of a single-family residential 

property located on Randolph Avenue in Clifton (the Property). Torres did not 

reside in the Property, having acquired it approximately one year before as an 

investment. Neither party disputes that the Contract of Sale for the Property 

indicates that it was being sold "as is." The Contract of Sale also included 

Tlatelpa's acknowledgment that she entered into the sale on the basis of her own 

knowledge, and that she was not relying on any representation made by the 

seller.

Under the Contract of Sale, Tlatelpa retained the right to inspect the 

Property before closing and to rescind the sale if that inspection was 

unsatisfactory. She exercised that option and commissioned a Home Inspection 

Report (Report), which was prepared by A Advanced Home Inspection. The 
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Report revealed several issues, including termite damage "infiltrating the home's 

structures" that required a supportive beam in the basement to be replaced. The 

report also revealed a leaking hot water heater and leaks in the plumbing of both 

bathrooms. The plumbing issues had caused significant mold growth throughout 

the home. The report advised Tlatelpa to retain the services of a licensed 

plumber and a mold abatement company to "investigate, remedy and certify[.]" 

While the report did not specifically mention problems with the septic system,

it did note that "[t]he main case iron underground sewer pipe is heavily rusted, 

corroded, leaking and in need of complete replacement by a licensed plumber." 

Likewise, the Report noted there was "evidence of a possible abandoned 

underground oil tank," alerting Tlatelpa to the potential problem. 

Torres agreed to abate the termite issue and repair the support beam before 

closing. The trial court found that "[p]laintiff was made aware of the defective 

plumbing in the inspection report and chose to proceed with closing on the 

property" although it had not been repaired by the seller before closing. As the 

trial court emphasized in its opinion, the Contract of Sale indicates "[t]he Buyer 

entered into the Contract on August 20, 2018, based on her knowledge and not 

on any representation made by the seller." 
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On September 9, 2019, Tlatelpa filed a complaint alleging that Torres 

committed fraud under the CFA and common law. In that complaint,

Plaintiff alleged that Defendant informed plaintiff that 

the [p]roperty was habitable, in saleable condition with 

no material defects; that there were significant issues 

with the plumbing[] and sewer line which cost the 

Plaintiff $18,000 to repair; and an oil tank had to be 

removed costing an additional $10,000. Plaintiff 

alleged that Defendant knowingly misrepresented, 

concealed, or omitted material facts with the intent that 

the Plaintiff rely on said misrepresentation.

[Ibid.]

At the close of discovery, Torres moved for summary judgment. He 

argued that the record showed that he was a casual investor rather than a licensed 

realtor and therefore was not subject to the CFA. He further argued that Tlatelpa 

failed to present evidence of his pre-existing knowledge of the defects, 

misrepresentation, or reasonable reliance. Tlatelpa opposed the motion for 

summary judgment.

The parties waived oral argument. On December 7, 2020, the trial court 

issued an order and written Statement of Reasons, granting Torres' motion for 

summary judgment on both claims. The trial judge found that although Torres 

had purchased the property as an investment, Tlatelpa failed to present evidence 

to prove her claim that "Defendant is in the business of 'flipping' houses." The 
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court found there was no evidence to suggest that Torres was a professional 

seller of real estate or that he advertised his services as a realtor to the public. 

The trial judge concluded that, as a non-professional, the seller was not subject 

to the CFA. The court also found that Tlatelpa failed "to present evidence of 

unlawful conduct by the Defendant that has a causal connection to [her] 

ascertainable loss" as required by the CFA.

The trial court reasoned:

The Contract of Sale indicates that the property was 

being sold "as is." In the July 7, 2018, Inspection 

Report, commissioned by the Plaintiff, Plaintiff was put 

on notice of potential plumbing issues throughout the 

property . . . . Nevertheless, Plaintiff proceeded to close 

on the property. The Plaintiff has offered no further 

proof of misrepresentation or omission on the part of 

the [seller] regarding the condition of the property's 

plumbing. Furthermore, no evidence has been 

proffered to demonstrate that Defendant had any 

knowledge of the oil tank, or that he suppressed such 

knowledge. The only evidence offered as to 

Defendant's knowledge was an alleged conversation 

between Plaintiff and Defendant's neighbor, Bujar[,] as 

to his reasons for not purchasing the property. This 

conversation amounts to nothing more than hearsay and 

does not establish that Plaintiff was aware of, and 

concealed knowledge of the oil tank.

The trial court also found that Tlatelpa failed to present evidence to prove 

the common law fraud claim. Specifically, the court found that she failed to 
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"provide[] any evidence of a misrepresentation or omission as to a present or 

past fact" or that the buyer had relied on any such misrepresentation or omission. 

Tlatelpa alleged that the Torres had previous knowledge of the defect in 

the sewer pipe because he had repaired it himself in the past. The trial court 

found that she produced "no facts to rely on this claim" because she had 

"neglected to set forth anything related to plumbing that [the seller] may or may 

not have done[]" beyond "a permit for building that he took out from the city of 

Passaic[.]" The trial court reasoned that plaintiff "ha[d] not sufficiently set forth 

a factually based act or omission on the part of the [seller] to maintain her claim 

of fraud." The court concluded, "[f]or the foregoing reasons, there exists no 

genuine dispute as to any material facts and the Motion for Summary Judgment 

on both counts of the Complaint is granted."

This appeal followed. 

Plaintiff raises the following contentions for our consideration:

POINT I

THE JUDGE ERRED BELOW IN DETERMINING 

THAT APPELLANT HAD FAILED TO 

DEMONSTRATE THAT A GENUINE "ISSUE" OF 

FACT EXISTED CONCERNING WHETHER THE 

RESPONDENT WAS SUBJECT TO THE PURVIEW 

OF THE NEW JERSEY CONSUMER FRAUD ACT, 

N.J.S.A. 56:8-1 to -20.
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POINT II

THE [TRIAL] COURT ERRED IN DISMISSING THE 

SECOND COUNT OF THE APPELLANT'S 

COMPLAINT RELATING TO THE ISSUE OF 

ESTABLISHING A VIABLE CLAIM AGAINST THE 

RESPONDENT FOR COMMON LAW FRAUD.

II.

We begin our analysis by acknowledging the legal principles governing 

this appeal. Our review of a trial court's summary judgment order is de novo. 

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 

(2016) (citing Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 

(2012)). Accordingly, the trial court's analysis is not entitled to any special 

deference. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995).

We apply the same standards as the trial court when reviewing an appeal 

of an order granting summary judgment. Walker v. Atl. Chrysler Plymouth, 216 

N.J. Super. 255, 258 (App. Div. 1987). Summary judgment should be granted 

when the pleadings and discovery show "that there is no genuine issue as to any 

material fact challenged and that the moving party is entitled to a judgment or 

order as a matter of law." R. 4:46-2(c). A genuine issue of material fact exists 

when the discovery materials, "viewed in the light most favorable to the non-
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moving party, are sufficient to permit a rational factfinder to resolve the alleged 

disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. 

Co., 142 N.J. 520, 540 (1995). 

Importantly for the purposes of this appeal, "[b]are conclusions in the 

pleadings, without factual support in tendered affidavits, will not defeat a 

meritorious application for summary judgment." U.S. Pipe & Foundry Co. v. 

Am. Arb. Ass'n., 67 N.J. Super. 384, 399–400 (App. Div. 1961). Our rules 

require a movant to file a statement of material facts, with or without supporting 

affidavits, that sets forth a concise statement of each material fact to which the 

movant contends there is no genuine issue. R. 4:46-2(a). The respondent must 

file a responding statement that admits or disputes each fact in the movant's 

statement. R. 4:46-2(b). Unless the respondent specifically disputes a material 

fact and demonstrates the existence of a genuine issue of fact, the movant's 

statement will be deemed admitted. R. 4:46-2(a)–(c). A party offering no 

substantial or material facts in opposition to the motion cannot complain if the 

court takes as true the uncontradicted facts in the movant's papers. See Judson 

v. People's Bank & Tr. Co. of Westfield, 17 N.J. 67, 75 (1954); R. 4:46-5.
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III.

We first address contentions regarding the CFA. N.J.S.A. 56:8-2 defines 

"[f]raud . . . in connection with the sale or advertisement of . . . real estate" as:

The act, use or employment by any person of any 

unconscionable commercial practice, deception, fraud, 

false pretense, false promise, misrepresentation, or the 

knowing, concealment, suppression, or omission of any 

material fact with intent that others rely upon such 

concealment, suppression or omission, in connection 

with the sale or advertisement of any merchandise or 

real estate[.]

[N.J.S.A. 56:8-2.]

In Zaman v. Felton, the Supreme Court explained, "[t]o prevail on a CFA 

claim, a plaintiff must establish three elements: '1) unlawful conduct by 

defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship 

between the unlawful conduct and the ascertainable loss.'" 219 N.J. 199, 222 

(2014) (quoting Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009)). 

Importantly for the purposes of this appeal, the Court in Zaman further 

explained, 

Notwithstanding these broad definitions, New Jersey 

appellate courts have adopted "a limited construction of 

the [CFA]'s applicability to real estate transactions." 

539 Absecon Boulevard, L.L.C. v. Shan Enters. Ltd., 

406 N.J. Super. 242, 274 (App. Div. 2009). Consistent 

with the CFA's limitation to "fraudulent, deceptive or 

other similar kind of selling or advertising practices," 
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Daaleman v. Elizabethtown Gas Co., 77 N.J. 267, 271 

(1978), our courts have declined to impose the CFA 

remedies upon the non-professional, casual seller of 

real estate, see Strawn v. Canuso, 140 N.J. 43, 59 

(1995) (limiting "holding to professional sellers of 

residential housing (persons engaged in the business of 

building or developing residential housing) and the 

brokers representing them"); Byrne v. Weichert 

Realtors, 290 N.J. Super. 126, 134 (App. Div.) ("The 

provision does not apply, however, to non-professional 

sellers of real estate, i.e. to the homeowner who sells a 

house in the normal course of events."), certif. denied, 

147 N.J. 259 (1996). Indeed, this Court has never 

applied the CFA against a non-professional, who does 

not advertise real estate services to the public, based 

upon his or her purchase of residential real estate for 

personal use or as an investment. 

[Id. at 223]

The Court held in that case that the trial court correctly dismissed the 

plaintiff's claim on the grounds that he failed to demonstrate that the defendant 

"committed an 'unconscionable business practice' within the meaning of 

N.J.S.A. 56:8-2[]" because "Zaman did not advertise real estate services to the 

public, initiate contact with [the defendant], or demand a fee for real estate 

services." Id. at 224.

In the matter before us, the trial court found that Tlatelpa failed to present 

evidence to prove two of the three elements: unlawful conduct by the seller and 

a causal relationship between any such unlawful conduct and the buyer's 
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ascertainable loss. Torres produced an affidavit stating that he was not a 

licensed realtor or broker and that he did not advertise real estate services to the 

public. The record shows that Tlatelpa produced no contradictory evidence. 

The trial court found in this regard:

Here, the CFA does not apply because the Defendant 

was not a professional seller of real estate. There is no 

evidence to suggest that the Defendant is a professional 

who advertises real estate services to the public. The 

Defendant simply purchased the property as an 

investment. Plaintiff failed to provide evidence that 

Defendant was in the business of "flipping" houses as 

alleged in the opposition [to defendant's motion for 

summary judgment].

We agree with the trial court's finding and conclusion. We reiterate that 

a bare assertion is insufficient to "defeat a meritorious application for summary 

judgment." U.S. Pipe, 67 N.J. Super. at 399–400. Accordingly, we conclude 

that Tlatelpa failed to present evidence to prove the first element of the CFA—

that defendant's conduct was unlawful.

The trial court found another independently sufficient ground for 

dismissing the CFA claim. As we have noted, a plaintiff must prove not only 

unlawful conduct but also a causal link between that conduct and the plaintiff's 

ascertainable loss. In this instance, Tlatelpa failed to prove that Torres' conduct 

caused her loss. 
12 A-1226-20

Neither party disputes that the property was purchased "as is." The 

Contract of Sale includes an express affirmation that Tlatelpa's decision to 

purchase the Property did not rely on any representations by the seller. 

Furthermore, Tlatelpa exercised the option to inspect the Property before 

completing the transaction. In these circumstances, by completing the 

transaction, she agreed to accept the risk of expensive home repairs unknown at 

the time of sale. We thus agree with the trial court that Tlatelpa failed to present 

evidence to support her CFA claim. See Judson, 17 N.J. at 75; R. 4:46-5.

IV.

We next address Tlatelpa's contentions regarding common law fraud. To 

state a claim for common law fraud, a plaintiff must allege facts that, if proven, 

would establish the following five elements: "(1) a material misrepresentation 

of a presently existing or past fact; (2) knowledge or belief by the defendant of 

its falsity; (3) an intention that the other person rely on it; (4) reasonable reliance

thereon by the other person; and (5) resulting damages." Gennari v. Weichert 

Co. Realtors, 148 N.J. 582, 610 (1997) (citation omitted). Importantly, "fraud 

is never presumed, but must be established by clear and convincing 

evidence." Weil v. Express Container Corp., 360 N.J. Super. 599, 613 (App. 

Div. 2003). 
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Tlatelpa averred that 

[t]he failure to disclose the existence of the [o]il tank 

constituted (1) a (potential) material misrepresentation 

of present fact which; (2) Respondent's likely 

knowledge that the appellant was unaware of its 

existence constituted a false fact; (3) which was 

information which the Respondent should have 

expected the Appellant to rely on; (4) which the 

Appellant did in fact rely on in deciding to purchase the 

property and (5) which unfortunately caused her 

resulting financial harm.

We agree with the trial court that Tlatelpa failed to present evidence to 

prove either misrepresentation or reasonable reliance. It is insufficient to allege 

a "potential" material misrepresentation. Rather, to survive a motion for 

summary judgment a plaintiff must produce evidence of the defendant's 

misrepresentation. As we have already noted, when a party offers no substantial 

or material facts in opposition to the summary judgment motion, the court may 

take as true the uncontradicted facts in the movant's papers. See Judson, 17 N.J. 

at 75; R. 4:46-5. Here, Tlatelpa failed to provide evidence that Torres was aware 

of the problems with the septic system or the underground oil tank.

Nor does the record support her claim that she reasonably relied on the 

seller's representation. To the contrary, by initialing the relevant term on the 

Contract of Sale, she expressly affirmed that she did not rely on any 
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representations made by respondent in deciding to complete the purchase. The 

Contract reads in relevant part:

(D) Buyer's Right to Inspections.

Buyer acknowledges that the Property is being sold in 

an "as is" condition and that this contract is entered into 

based upon the knowledge of Buyer as to the value of 

the land and whatever buildings are upon the Property, 

and not on any representation made by Seller, Brokers 

or their agents as to character or quality of the Property.

[Ibid.]

"When used in connection with the sale of real property, 'as is' generally 

means the purchaser is acquiring real property in its present state or condition." 

K. Woodmere Assocs. L.P. v. Menk Corp., 316 N.J. Super. 306, 316 (App. Div. 

1998). Appellant took the property "with whatever faults it may possess" and 

released the seller of "any obligation to reimburse purchaser for losses or 

damages resulting from the condition of the property conveyed." Id. at 317. 

Buyer's initials directly below section (D) indicate her affirmation.

To the extent we have not specifically addressed them, any remaining 

arguments raised by plaintiff lack sufficient merit to warrant discussion. R.

2:11-3(e)(1)(E). 

Affirmed.