ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-396479
DATE: 20131024

B E T W E E N:

The Toronto-Dominion Bank

Sanj Sood and Mark van Zandvoort, for the Plaintiff

Plaintiff

• and -

Perpetual Income Producing Enterprise Inc. and Armando Orefice

Armando Orefice, Defendant, in person

Defendants

HEARD: Sept. 10, 12, 13, 14 and 18, 2012

Frank J.

R E A S O N S F O R J U D G M E N T

[1] On the consent of the parties, this action was retried on the transcript of the trial proceedings, the trial judge having been prevented from rendering a decision.

[2] Vicor Mechanical Ltd. [Vicor] was a successful plumbing company throughout much of the 2000’s. It installed plumbing primarily in residential condominium developments and commercial and government buildings. It is said to have been doing business of $13 million to $15 million dollars a year and had 124 employees at its height. But, Vicor ran into financial difficulties as a result of problems with certain valves it had installed. By the fall of 2009 it had breached its loan agreements with the Toronto-Dominion Bank [TD] and on November 29 of that year, TD served notice of its intention to enforce its security against Vicor, the defendant Perpetual Income Producing Enterprise Inc., [“PIPE”] the owner of the building in which Vicor operated, and the guarantors of Vicor’s and PIPE’s loans.

[3] This action is part of TD’s efforts to collect on its security for the loans to Vicor and PIPE.

Facts

[4] TD obtained judgment against PIPE on April 26, 2012 pursuant to its unlimited guarantee of the Vicor loans and based on its own indebtedness, following the striking of its statement of defence and counterclaim.

[5] The defendant Armando Orefice was the sole shareholder, officer and director of Vicor and of the co-defendant PIPE.

[6] TD now seeks judgment against Mr. Orefice, relying on a personal guarantee in the amount of $400,000 it alleges was provided by Mr. Orefice as security for the loans given to Vicor and PIPE. Mr. Orefice advances a counterclaim against TD for slander of title, breach of contract and punitive damages.

[7] Mr. Orefice began his relationship with the Toronto-Dominion Bank in 2004. He entered into a loan agreement whereby TD agreed to provide Vicor with an operating facility of $200,000 and PIPE with a reducing term facility in exchange for security that included the following:

(i) a first position collateral mortgage against the property owned by PIPE in which Vicor carried on its business in the amount of $430,000;

(ii) an unlimited guarantee from PIPE for Vicor’s indebtedness to TD;

(iii) an unlimted guarantee from Vicor for PIPE’s indebtedness to TD;

(iv) a General Security Agreement [“GSA”] on all of the assets of PIPE; and,

(v) a personal guarantee form Armando Orefice to TD limited to $200,000 of the indebteness of Vicor and PIPE.

[8] In 2006, Vicor needed more financing in order to continue its operations. TD agreed to significantly increase Vicor’s operating line of credit. TD prepared a term sheet for Mr. Orefice’s acceptance. An amending loan agreement dated August 22, 2006 was entered into pursuant to the term sheet, providing for the increase in the loan facility to $900,000 in exchange for an increase in the amount of the collateral mortgage against the PIPE property to $850,000 and an increase in Mr. Orefice’s limited personal guarantee to $400,000. In March 2008, the operating line of credit was further increased to $1.25 million and then, finally, in December 2008, it was increased to $1,575,000.

[9] In October 2009, by which time all of the funds available in the facility had been advanced to Vicor and PIPE, the bank identified the loan as high risk and transferred it to its Financial Restructuring Group for management. Restructuring was not viable. Vicor breached the terms of its loan agreement; the bank demanded payment. Vicor could not repay the bank, which then proceeded to enforce its security.

[10] The proceeds recovered left a shortfall on the outstanding balance of the loan of over $1.1 million.

The Guarantee

(i) the parties’ positions

[11] Mr. Orefice denies personal liability, maintaining that although he did sign the 2006 guarantee relied on by TD, he did not sign it in his personal capacity. He relies on the fact that the corporate seal of Vicor is imprinted adjacent to his signature on the guarantee. He submits that this seal establishes that the guarantee is Vicor’s, not Mr. Orefice’s personally.

[12] It is TD’s position that the seal is irrelevant and the agreement is clear and unambiguous in requiring Mr. Orefice’s personal guarantee in the increased amount of $400,000 as a term of the granting of the additional financing.

(b) analysis

[13] Mr. Orefice submits that he believed that the guarantee was to be a corporate guarantee because it is described as a ‘limited’ guarantee in the amending agreement signed by Mr. Orefice and, as he put it, “limited to me means corporation”. His testimony is that he read the word “limited” in the guarantee and as a result, in his heart he believed that the $400,000 limited guarantee that he agreed to provide was the guarantee of a limited company.

[14] This assertion must be considered in the context of the following[^1]:

(i) Mr. Orefice acknowledges that the $200,000 limited guarantee that he signed in 2004 was binding on him personally. That guarantee is described in the 2004 loan agreement as a limited guarantee using precisely the same wording as in the 2006 amending agreement pursuant to which the $400,000 limited guarantee was provided.

(ii) The TD document, the 2006 term sheet, that sets out the proposed terms of the increase to Vicor’s loan and that was accepted by Mr. Orefice, refers to the 2004 personal guarantee given by Mr. Orefice and specifies that this guarantee is to be increased to $400,000.The amending agreement entered into by Mr. Orefice is based on the term sheet. Accordingly, the amending agreement lists as required security a limited guarantee in the amount of $400,000 to be executed by Mr. Orefice. He does not dispute that he signed both the term sheet and the amending agreement.

(iii) In addition to signing the limited guarantee. Mr. Orefice signed unlimited guarantees on behalf of his companies. On each of the unlimited guarantees, he signed his name under the typed name of the company providing the guarantee, wrote “per” before his signature, and after his signature added “ASO” and “I have authority to bind the corporation”. Mr. Orefice’s name does not appear in typed form on any of the unlimited guarantees. This is in contrast to both the 2004 personal and the 2006 personal guarantee. Neither of the limited guarantees bear any corporate name above the signing line and both are signed by Mr. Orefice above the typed words “Armando Orefice”.

(iv) None of the unlimited corporate guarantees that were entered into evidence at trial bear the seal of the corporation granting the guarantee.

(v) Mr. Orefice admitted that when he signed the unlimited guarantees on behalf of Vicor and PIPE, he understood that the meaning of “unlimited” was that the corporations were “on the hook” for all of the funds loaned to the corporations by TD.

[15] These facts are inconsistent with Mr. Orefice believing that the disputed guarantee was a corporate guarantee because it was described as ‘limited’ and had the imprint of a corporate seal.

[16] If, in signing the limited guarantee, Mr. Orefice sought to commit one of his company’s instead of himself personally, he should have indicated that when he signed it, as he had done each time he committed his companies to unlimited guarantees.

[17] The fact that the corporate seal of Vicor was impressed on the guarantee does not assist Mr. Orefice. The wording of the amending agreement, which Mr. Orefice acknowledges having entered into, is clear and unambiguous. Whatever the reason for the seal having been imprinted onto the guarantee, that seal is superfluous and of no significance.[^2]

[18] As there is no ambiguity in the contract, Mr. Orefice’s intention regarding the guarantee is not admissible pursuant to the parole evidence rule.[^3] It is clear from the plain wording of the term sheet and the amending agreement that a requirement for the extension of further credit to Vicor and PIPE was that Mr. Orefice increase his personal guarantee from $200,000 to $400,000.

[19] The interpretation of the guarantee that Mr. Orefice seeks to have the court accept is one that makes no commercial sense. TD had an unlimited guarantee from Vicor. That unlimited guarantee would render meaningless the limited guarantee that Mr. Orefice maintains was the guarantee of Vicor. It would provide no additional security for the increase in the loans made to Vicor.

[20] The courts will not adopt an interpretation of an agreement that is clearly commercially absurd.[^4]

[21] Mr. Orefice does not say that he would not have signed the impugned guarantee had he realized that it was personal to him. The testimony of the TD employee who negotiated the 2006 increase to the credit line, Maria Pawlica, is that had Mr. Orefice not granted the personal guarantee, TD would not have increased the credit line. I accept Ms. Pawlica’s uncontradicted testimony. It is reasonable that TD would require an increased personal guarantee along with the other security demanded, in exchange for the substantially increased credit facility.

[22] Mr. Orefice testified that he believed that he was signing the $400,000 limited guarantee on behalf of Vicor based on advice from his lawyer, Arthur Scauzillo, before whom he signed the guarantee. However, even if I were to accept that because of what he was told by Mr. Scauzillo, Mr. Orefice believed that the limited guarantee he signed was not personal, that would not change the true nature of the guarantee he signed. Mr. Orefice’s complaint would be against Mr. Scauzillo who gave the advice, not TD, the party that advanced the money.

[23] Mr. Orefice admits to having read the term sheet and the amending agreement, both of which clearly and unambiguously state that the increased limited personal guarantee from Mr. Orefice was a requirement of the granting of the increase in the loan facility. Mr. Orefice cannot avoid the consequences of this by claiming, as he does, that while he knew he had to provide a personal guarantee with respect to the 2004 loan because it was explained to him by the TD loan officer at the time, he did not know that he had to sign a personal guarantee in 2006 because, as he put it: “nobody ever explained to me ‘here’s where you sign personally’ in 2006”.

[24] Mr. Orefice had a financial advisor, Anthony Guido, who provided him with business advice from 2004 through 2009 and was assisting Mr. Orefice with respect to the 2006 refinancing. It was Mr. Guido who faxed to TD the accepted term sheet on behalf of Mr. Orefice; and, it was Mr. Guido who noted on that fax sheet that the terms had been accepted. Mr. Guido’s involvement on behalf of Mr. Orefice in the negotiating of the refinancing is further confirmed by Ms. Pawlica’s testimony that she spoke with Mr. Guido several times during the course of the negotiations. I accept her testimony that she specifically referred to the requirement of the increased personal guarantee when she spoke with Mr. Guido. That evidence is unchallenged though Mr. Guido was in the courtroom assisting Mr. Orefice throughout this trial. Mr. Orefice chose not to have Mr. Guido testify.

[25] Mr. Orefice was represented by counsel until after this action was set down for trial. The statement of defence filed by Mr. Orefice’s lawyer alleges that Mr. Orefice did not have independent legal advice before signing the 2006 guarantee and, as a result, the guarantee is invalid. Mr. Orefice testified that no one told him about the legalities of the documents. Even if this were true, however, it would not prevent TD from relying on the personal guarantee as Mr. Orefice received the direct benefit of the loans advanced to Vicor.[^5]

[26] But, the claim that he did not have legal advice is not credible. It is inconsistent with Mr. Orefice’s testimony that he relied on advice from Mr. Scauzillo, who acted for Mr. Orefice with respect to both the 2004 and 2006 financings. Mr. Orefice does not suggest that he did not have the opportunity to consult with Mr. Scauzillo. Certainly, he had more than ample opportunity to do so as there was a period of approximately six weeks between when he signed the term sheet and when he signed the amending agreement pursuant to which the personal guarantee in the increased amount was provided. If Mr. Orefice did not have legal advice before signing the term sheet, as he claims, that was by choice.

[27] The statement of defence pleads that the guarantee, along with the collateral mortgage, is invalid as no consideration was given for them. However, Mr. Orefice acknowledges what is beyond dispute: TD advanced the funds in accordance with the amending agreement.

[28] Equally without merit is Mr. Orefice’s argument based on TD not being able to produce a copy of the November 9, 2005 loan agreement signed by him. Mr. Orefice testified that he did not know of the existence of this agreement, and on that basis argues that everything that followed, including the 2006 amending agreement is void. Setting aside the fact that Mr. Orefice’s evidence as to whether he knew about this agreement is inconsistent, the absence of a signed copy is of no consequence. The banking relationship continued between Mr. Orefice and TD, with Vicor continuing to borrow from TD in accordance with the agreement. The 2005 agreement made no changes to the credit facility and was administrative in nature only. If Mr. Orefice did not sign the 2005 agreement, any resulting consequences would have been rectified through the 2006 agreement and then the 2008 agreement that referenced the security in the 2006 agreement.

[29] Mr. Orefice sought to introduce into evidence a letter dated September 7, 2006 sent by Mr. Scauzillo to the TD which purports to enclose a guarantee by Vicor and PIPE. Mr. Orefice relies on this letter to support his position that he did not provide a personal guarantee. Even if the reliability of this letter had been established so as to enable it to be entered into evidence for the truth of its contents, which it has not, it would be of no assistance to Mr. Orefice. He admits that a guarantee was provided by each of Vicor and PIPE. If anything, this letter is inconsistent with Mr. Orefice’s position as it refers to only one guarantee from both Vicor and PIPE whereas Mr. Orefice’s position is that Vicor provided two guarantees – an unlimited guarantee as well as the guarantee limited to $400,000. I have already commented on the senselessness of that position.

[30] Mr. Orefice’s denial of the validity of the personal guarantee does not withstand scrutiny. I find that it is clear from the wording of the personal guarantee and the amending agreement pursuant to which the guarantee was signed that the intention of TD and Mr. Orefice was that Mr. Orefice would personally bind himself for the debts and liabilities of Vicor and PIPE in the limited amount of $400,000. The guarantee is binding on Mr. Orefice.

TD’s Claim

[31] When TD demanded payment on November 25, 2009, Vicor and PIPE’s undisputed indebtedness to TD for principal and interest was $1,956,326.75.

[32] On December 9, 2009, TD issued a Notice of Sale Under Mortgage pursuant to the PIPE collateral mortgage.

[33] TD obtained two independent appraisals of the PIPE property. It sold in January 2010 for $931,000, an amount in excess of the appraised values. The net proceeds of that sale and the amount received for Vicor’s inventory left TD with a shortfall of $1,137,471.32.

[34] TD retained BDO Dunwoody Ltd. [“BDO”] to assess the Vicor security, including accounts receivable, cash flow and inventory and machinery and equipment. At the time, TD understood Vicor to be indebted to the Canada Revenue Agency [“CRA”] in the amount of roughly $450,000. In January it received notice from CRA that the amount of Vicor’s indebtedness was actually $661,757.96, the amount that had been deducted by Vicor from the wages of employees. That amount had statutory priority over TD’s security. Catherine Bridle, the TD employee responsible for the management of the Vicor and PIPE accounts after they were identified as high risk and transferred to the Financial Restructuring Group, testified that based on BDO’s analysis she expected that around $360,000 could be realized on Vicor’s assets. As the assets would have to have a value of in excess of Vicor’s indebtedness to CRA before TD would receive any proceeds, it chose not to take steps to realize on Vicor’s assets. Correspondence between Ms. Bridle and CRA reveals that CRA was made aware of these circumstances in mid-December 2009.

[35] On April 26, 2012, Quigley J. granted TD judgment against PIPE in the amounts of $1,272,166.31 and $17,252.38, costs of $17,017.85 jointly and severally with Mr. Orefice, and post judgment interest. These amounts remain unpaid.

[36] TD is entitled to judgment against Mr. Orefice in the full amount of his personal guarantee limited to $400,000.

The Counterclaim

(a) breach of contract

[37] Mr. Orefice seeks damages based on TD having prevented him from selling the PIPE property. He alleges that he had entered into an agreement of purchase and sale for a purchase price of $159,000 more than that for which TD ultimately sold the property.

[38] Mr. Orefice cannot recover damages arising out of the sale of this property. PIPE, as owner of the property was the named vendor in the alleged agreement of purchase and sale on which Mr. Orefice relies. Mr. Orefice was not a party to that agreement. The fact that he was the controlling mind of PIPE and its sole director, officer and shareholder does not give him status to pursue PIPE’s claim in his own name.[^6] The loss claimed is that of PIPE; but, its counterclaim has been dismissed.

[39] In any event, the evidence falls short of establishing the legitimacy of the alleged agreement of purchase and sale. I come to this conclusion for reasons that include the following:

(i) It was not until nine days after the closing date of November 9, 2009, that TD was told about the alleged sale. Notice came to TD by way of a letter marked “urgent” sent by Mr. Orefice’s lawyer, Mr. Scauzillo, requesting a discharge statement and other documents for the closing. The reference line of the letter was to a closing date two days prior to the date of the letter.

(ii) Ms. Bridle testified that she would have considered allowing the sale to proceed if it was a reasonable offer. This is consistent with TD’s immediate response to Mr. Scauzillo’s letter: TD’s lawyer requested a copy of the agreement of purchase and sale and the draft statement of adjustments for his review with TD so that he could “discuss a means of accommodating your client’s proposed closing.” But, TD was never provided with a copy of the agreement of purchase and sale or a statement of adjustments. Mr. Orefice expressed frustration and disbelief over TD’s refusal to allow PIPE to sell the property pursuant to this agreement of purchase and sale when it would clearly have been in both TD’s and PIPE’s interest to do so. But, I find the reality to be that had there been a legitimate agreement of purchase and sale that would have resulted in TD recovering more than the appraised value of the property, as alleged, TD would have consented to that sale proceeding.

(iii) The agreement of purchase and sale on which Mr. Orefice relies is dated May 14, 2009. Mr. Orefice’s explanation for not having given TD a copy of the agreement of purchase and sale when it was entered into is that he was awaiting an appraisal report from Cornwall Appraisals Ltd., with respect to the property. He did not receive that report until October 22, 2009. Without more, that is not a credible explanation for not advising TD of the sale, especially as Mr. Orefice did not give TD a copy of the agreement of purchase and sale even after the appraisal was completed.

(iv) The agreement of purchase and sale was not listed in the affidavit of documents served on behalf of PIPE and Mr. Orefice by their lawyer. It was not produced until after the pre-trial. Mr. Orefice attempts to excuse this on the basis of his not being able to obtain his file from his lawyer after the lawyer was removed as solicitor of record. But, that would not explain why it was not listed in the affidavit of documents. Mr. Orefice further explained that the reason it took him as long as it did to finally produce the agreement of purchase and sale was that he had to get it from the purchaser, Inspirit Development Inc. Mr. Orefice’s testimony is: “I went back to this gentleman from Inspirit, and they gave it to me. That’s why it took so long”. But, the credibility of this explanation for why it was not until after the pre-trial that the purported agreement of purchase and sale was first produced must be assessed in the context of the sole officer and director of Inspirit Development Inc. being Mr. Guido – Mr. Orefice’s long-time financial consultant and the person seated next to him at the counsel table and advising him throughout this trial - a fact that had only recently come to light. All of this points to Mr. Orefice deliberately intending to mislead the court.

(v) The agreement of purchase and sale provides for a deposit of $685,000 on a purchase price of $1,090,000, a disproportionately large deposit. There is no explanation for why the purchaser would put so large an amount at risk by way of deposit. There is also no evidence of a deposit cheque having actually been provided.

(vi) Mr. Orefice maintains that the closing date in the agreement had been “put off.” But, no amending agreement has been produced and there is no evidence as to the date to which the closing was extended beyond Mr. Orefice’s testimony that it was November 14, 15 or 16. But, all of those dates predate the date on which Mr. Scauzillo wrote to TD seeking a discharge statement.

[40] In addition, TD cannot be held in breach of contract for failing to discharge its collateral mortgage when, pursuant to the standard charge terms of that mortgage, PIPE had no legal right to sell, transfer or dispose of its property with TD’s consent.

[41] There is also the practical matter of the amount of Vicor’s indebtedness being such that even if the agreement of purchase and sale had been legitimate, and the PIPE property had sold on the terms of that agreement, TD would still have a shortfall of over $1million. As a result, TD would still be entitled to payment of the full amount of Mr. Orefice’s $400,000 limited guarantee.

[42] No matter how this breach of contract claim is viewed, there is no merit to it.

(b) slander of title

[43] Mr. Orefice claims damages for slander of title. But, just as Mr. Orefice does not have standing to advance the claim based on PIPE’s agreement of purchase and sale, he does not have standing to claim damages for the slander of PIPE’s title.

[44] In any event, Mr. Orefice admits that TD had a valid General Security Agreement over the property of PIPE. TD was entitled to take measures necessary to preserve its security, including registering the GSA against title to the PIPE property.

(c) punitive damages

[45] At trial, Mr. Orefice repeatedly insisted that he was not advancing any claims that are not pleaded. I therefore take his complaints with respect to TD’s realization of Vicor’s assets to be in support of his claim for punitive damages.[^7] However, these allegations do not provide support for that claim.

[46] Mr. Orefice alleges that TD acted improperly in relation to Vicor’s assets. As with his other claims, Mr. Orefice has no standing to advance a claim based on Vicor’s alleged loss. But, just as with the other claims, even if Mr. Orefice were entitled to advance this claim, he would have failed to establish it.

[47] The lawyer for TD wrote to Mr. Orefice’s lawyer at the time, providing him with the opportunity to remove whatever he wished from Vicor’s premises, which he appeared to have abandoned. Mr. Orefice maintains that he removed nothing for fear of breaching his obligations to the TD, allegedly on the advice of his lawyer. This is in spite of TD’s lawyer’s having twice repeated the offer to Mr. Orefice to retrieve anything of value from the premises. There is no evidence of Mr. Orefice’s lawyer or Mr. Orefice responding to these letters from TD’s lawyer. Ms. Bridle’s, in correspondence with CRA, advised CRA that Mr. Orefice had access to the premises prior to and after the realty company retained by TD secured them.

[48] I cannot rely on Mr. Orefice’s testimony as he has demonstrated himself to be an unreliable witness.[^8] If Mr. Orefice did not retrieve any of Vicor’s property, I do not accept that TD was in any way responsible for his failure to do so.

[49] Mr. Orefice has submitted no evidence to cast doubt on the reliability of Ms. Bridle’s conclusion as to the value of the Vicor assets. Although he maintains that he is disputing the amount of his indebtedness to CRA, he has put forward no evidence of this. There is no evidence that Mr. Orefice’s personal guarantee would not have to be called on but for TD’s purported undervaluation of the Vicor assets and CRA’s overstatement of the amount owed to it by Vicor.

[50] Mr. Orefice maintains that the PIPE property had a greater value than set out in the two appraisals on which TD relied, both of which were provided to TD in February 2010. To support this, Mr. Orefice relies on an appraisal by Cornwall Appraisers dated October 22, 2009. TD denies having been provided with a copy of that appraisal though it is addressed to TD. If it were necessary, I would accept Ms. Bridle’s testimony that it was not received. But, as there were no purchasers for the property at the original listing price of $1,198,000 necessitating a reduction in price, the Cornwall appraisal in the amount of $1,080,000 is of no consequence.

[51] There is no basis for Mr. Orefice’s punitive damages claim. TD acted in accordance with its contractual rights under its security.

Conclusion

[52] TD is entitled to judgment against Mr. Orefice in the amount of $400,000 plus prejudgment interest to be calculated based on the TD prime rate plus 1.25% from November 2, 2009 to the date of this judgment.

[53] TD is entitled to post judgment interest at the contractual rate of prime plus 1.25%.

[54] Mr. Orefice’s counterclaim is dismissed.

[55] The parties may make submissions with respect to costs in writing, addressed to me at Judges’ Administration, Room 170, 361 University Avenue, Toronto ON M5G 1T3. TD’s submissions are to be forwarded to me and served on Mr. Orefice within three weeks of the date of this judgment. Mr. Orefice’s submissions in reply are to be forwarded to me and served within three weeks after his receipt of TD’s submissions.

Frank J.

Released: October 24, 2013

Footnotes

[^1]: The context or factual matrix in which a contract is drafted can be considered in interpreting that contract: Simex Incident. V. Imax Corp., 2005 46629 (ON CA), [2005] O.J. No. 5389 (Ont. C.A.) at para. 23

[^2]: Marcuzzi (Re), [1990] O.J. No. 2500 (Ont. G.D. in Bankruptcy), pg. 4

[^3]: Eli Lilly, supra, at para. 58, citing Indian Molybdenum Ltd. v. The King, 1951 378 (SCC), [1951] 3 D.L.R. 497 (S.C.C.) at pp. 502-3

[^4]: ibid, at para. 23

[^5]: Bank of Nova Scotia v. 2156909 Ontario Inc. (c.o.b. Funnelz Indoor Party and Play Centre), 2012 ONSC 2536, [2012] O.J. No. 1883 at para. 14

[^6]: Walters v. Royal Bank of Canada, 2000 5668 (ON CA), [2000] O.J. No. 702 (C.A.) at para. 7, citing Roger v. Bank of Montreal, 1985 150 (BC SC) aff’d Roger v. Bank of Montreal, 1986 847 (BC CA).

[^7]: Consistent with this is the fact that when in his examination-in-chief Mr. Orefice queried where all of the material that was on Vicor’s premises went, he prefaced that query with the statement that he is not making any allegation in that respect.

[^8]: Examples of this in addition to those already referred to include: (a) at trial Mr. Orefice initially denied that Mr. Scauzillo explained the 2004 guarantee to him, but when confronted with his contradictory earlier testimony on cross-examination on his affidavit in response to TD’s summary judgment motion, Mr. Orefice admitted that his testimony at trial was not correct; (b) at trial Mr. Orefice testified that he had not approached the TD for increased financing in 2006, but when again confronted with answers given by him on the earlier cross-examination, he admitted that this was not true.