Quimera Holding Group Sac v. Kennedy Funding Financial LLC; Kevin Wolfer; Gregg Wolfer Kennedy Funding Financial, LLC

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 24-1041
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QUIMERA HOLDING GROUP SAC
v.
KENNEDY FUNDING FINANCIAL LLC;
KEVIN WOLFER; GREGG WOLFER
KENNEDY FUNDING FINANCIAL, LLC.,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2:20-cv-17764)
District Judge: Honorable Madeline C. Arleo
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Argued November 13, 2024
Before: RESTREPO, MONTGOMERY-REEVES, and AMBRO, Circuit Judges.
(Opinion filed: February 13, 2025)
Craig S. Hilliard [ARGUED]
Stark & Stark
100 American Metro Boulevard
Hamilton, NJ 08619
Counsel for Appellant
Ahmed A. Massoud [ARGUED]
Massoud & Pashkoff
950 Third Avenue, Suite 901
New York, NY 10022
Counsel for Appellee

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OPINION
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MONTGOMERY-REEVES, Circuit Judge.
Appellant Kennedy Funding Financial LLC (“Kennedy”) executed an agreement
to issue Appellee Quimera Holding Group SAC (“Quimera”) a loan in the amount of
55% the value of certain collateral. But the agreement failed to identify the collateral.
No loan ever issued, and Quimera sued Kennedy for breach of contract.
Following cross motions for summary judgment, the District Court granted
summary judgment for Quimera and denied Kennedy’s subsequent motion for
reconsideration. The District Court found that Quimera retained the right under the
agreement to identify the collateral for the loan and held that Kennedy breached by
failing to oblige Quimera’s preference. We disagree. Applying New Jersey law, we find
a genuine dispute of material fact as to what collateral the parties agreed to use for the
loan. We therefore vacate the District Court’s orders and remand for further proceedings.
I. BACKGROUND
On November 1, 2017, Kennedy and Quimera met (the “November 1 Meeting”)
and executed a loan agreement (the “Loan Commitment”). Kennedy agreed to issue
Quimera a loan for 55% the appraised as-is market value of collateral, with a minimum
loan of $3,000,000 and a maximum loan of $50,000,000. The Loan Commitment
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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required Quimera—within three days of receiving a loan offer—to accept the offer, reject
the offer, or initiate a third-party appraisal of the collateral. The Loan Commitment
defined collateral “as described in ‘Schedule C.’” App. 114. But although the parties
discussed a complete list of Quimera’s properties at the November 1 Meeting, Schedule
C did not identify any properties.
Also at the November 1 Meeting, Quimera requested that Kennedy select
properties to use as collateral for the loan from the list of Quimera’s properties. Kennedy
then asked Quimera to identify the properties it wished to use as collateral. Quimera
emailed its preferred collateral list on November 12 (the “November 12 List”),
identifying eight properties.
On December 7, Kennedy sent Quimera a list of nine properties—five of which
were on Quimera’s November 12 List—to serve as collateral. On December 27, Quimera
paid $85,000 to Kennedy to appraise those nine properties. On January 23, 2018,
Kennedy offered Quimera a loan for $32,600,000 (the “January 23 Loan Offer”) based on
the nine properties appraised.
On January 29, Quimera responded to the offer. Following a back-and-forth,
Quimera asked Kennedy to remove five properties from the January 23 Loan Offer.
Kennedy agreed and offered a loan for $23,000,000 based on the remaining collateral, but
that figure fell below 55% of the value of the collateral.
Discussions faltered; Kennedy and Quimera parted ways without closing a loan;
and Kennedy refused to return fees paid by Quimera under the Loan Commitment.

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In 2020, Quimera sued Kennedy in the District Court and alleged, among other
things, that Kennedy breached the Loan Commitment.1 After discovery, both parties
moved for summary judgment, each arguing that the other caused the Loan Commitment
to falter.
The District Court held that Quimera’s request for the removal of collateral
complied with the Loan Commitment and that Kennedy’s below-value offer in response
operated as a breach. The District Court entered judgment for Quimera. Kennedy moved
for reconsideration, which the District Court denied. Kennedy appealed.
II. DISCUSSION2
Our review of an order on summary judgment “is plenary, meaning we review
anew the District Court’s summary judgment decisions, applying the same standard it
must apply.” Ellis v. Westinghouse Elec. Co., 11 F.4th 221, 229 (3d Cir. 2021).3
1 Quimera also included causes of action for fraud, negligent misrepresentation, unjust
enrichment, breach of the covenant of good faith and fair dealing, and a violation of the
New Jersey Consumer Fraud Act. Quimera brought each cause of action against
Kennedy. But it also named Kennedy’s principals, Gregg Wolfer and Kevin Wolfer (the
“Wolfers”), as Defendants to the fraud, negligent misrepresentation, and New Jersey
Consumer Fraud Act claims.
2 The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction under
28 U.S.C. § 1291.
3 Quimera argues that Kennedy forfeited any argument that genuine disputes of material
fact preclude summary judgment by instead cross-moving for summary judgment. Not
so. A “losing party” to a cross motion for summary judgment does not “waive[] judicial
consideration and determination [of] whether genuine issues of material fact exist.”
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968). And because we vacate
the underlying order on summary judgment based on the record before the District Court,

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Quimera “as the moving party must show ‘that there is no genuine dispute as to any
material fact and [it] is entitled to judgment as a matter of law.’” Id. at 229–30 (alteration
in original) (quoting Fed. R. Civ. P. 56(a)).4 Moreover, “we must view the facts in the
light most favorable to the non-moving party.” Smith v. Mensinger, 293 F.3d 641, 647
(3d Cir. 2002) (citing Brooks v. Kyler, 204 F.3d 102, 105 n.5 (3d Cir. 2000)).
No one disputes that New Jersey law applies. Under New Jersey law, extrinsic
evidence “is always admissible in aid of the interpretation of an integrated
agreement . . . even when the contract on its face is free from ambiguity.” Atl. N. Airlines
v. Schwimmer, 96 A.2d 652, 656 (N.J. 1953). Thus, “[w]e consider all of the relevant
evidence that will assist in determining the intent and meaning of the contract[,]” and
“the words of the contract alone will not always control.” Conway v. 287 Corp. Ctr.
Assocs., 901 A.2d 341, 346, 347 (N.J. 2006).
Viewing the facts in the light most favorable to Kennedy and in light of the fact
that Schedule C to the Loan Commitment fails to specify collateral, a reasonable jury
could find based on all the relevant evidence that the parties agreed to use the nine
properties appraised for Kennedy’s January 23 Loan Offer as collateral. A reasonable
jury could reach this conclusion by relying on: (1) Quimera’s initial request that Kennedy
“[w]e need not reach a decision on the motion for reconsideration as it is moot.” United
States ex rel. Ascolese v. Shoemaker Constr. Co., 55 F.4th 188, 197 (3d Cir. 2022).
4 Kennedy appeals only the District Court’s order granting Quimera’s motion for
summary judgment, not the District Court’s order denying Kennedy’s motion for
summary judgment.

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select properties for collateral; (2) Quimera’s payment of appraisal fees for the nine
properties Kennedy selected; and (3) Quimera’s failure to object to the inclusion of the
identified properties until after the appraisal, offer, and three-day response period. If a
jury reached this conclusion, Kennedy could defeat Quimera’s breach-of-contract claim
because the jury would find that Kennedy fulfilled its obligation under the Loan
Commitment to offer a loan for 55% the value of appraised collateral.5
True, “[t]he construction and effect of a written instrument is a matter of law to be
determined by the court and not by the jury; but when such construction depends upon
extrinsic facts, as to which there is a dispute, a jury question is presented.” Spinelli v.
Golda, 77 A.2d 233, 239 (N.J. 1950) (quoting Downs v. N.J. Fid. & Plate Glass Ins. Co.
of Newark, 103 A. 205, 206 (N.J. 1918)). Because what collateral the parties agreed to
use under the Loan Commitment presents a genuine dispute of material fact on which the
ultimate breach analysis turns, we will vacate the District Court’s order on summary
judgment and remand for further proceedings.6
5 We recognize that there is evidence to support Quimera’s view, but that is why
summary judgment is inappropriate. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (explaining that summary judgment “is the threshold inquiry of determining
whether there is the need for a trial—whether, in other words, there are any genuine
factual issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party”).
6 Quimera withdrew its unjust-enrichment claim following Kennedy’s motion for
summary judgment. And Quimera agreed to dismiss the remaining claims against
Kennedy and the Wolfers if the District Court granted judgment in its favor on the
breach-of-contract claim against Kennedy. Because the District Court did so, it
dismissed Quimera’s remaining claims. Kennedy does not dispute that Quimera’s
dismissed claims—including fraud, negligent misrepresentation, breach of the covenant

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III. CONCLUSION
For these reasons, we will vacate the District Court’s orders granting Quimera’s
motion for summary judgment and denying Kennedy’s motion for reconsideration; and
we will remand for further proceedings consistent with this opinion.
of good faith and fair dealing, and a violation of the New Jersey Consumer Fraud Act—
may be revived upon remand to the District Court.

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