Opinion
DOCKET NO. A-3976-11T4
01-09-2013
TAHIR ZAMAN, Plaintiff-Respondent, v. BARBARA FELTON and MR. FELTON, her husband, Defendants-Appellants.
Robert B. Silverman argued the cause for appellant. I. Dominic Simeone argued the cause for respondent (Law Office of Simeone & Raynor, LLC, attorneys; Mr. Simeone, of counsel; Thomas A. Roberto, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Defendants-Appellants.
Before Judges Fisher, Waugh and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-4301-08.
Robert B. Silverman argued the cause for appellant.
I. Dominic Simeone argued the cause for respondent (Law Office of Simeone & Raynor, LLC, attorneys; Mr. Simeone, of counsel; Thomas A. Roberto, on the brief). PER CURIAM
The parties' disputes about defendant Barbara Felton's transfer of real property to plaintiff Tahir Zaman were resolved in two phases -- a jury trial of some and a bench trial of the remainder of the issues presented. After careful consideration, we reject Felton's arguments regarding the sufficiency of the jury instructions during the first phase, as well as her numerous arguments regarding the judge's disposition of the second phase's non-jury issues.
Felton was the owner of real property in Cream Ridge, which was encumbered by a mortgage on which she owed approximately $100,000. In default on the mortgage and facing foreclosure, Felton contracted, on June 16, 2007, to sell the property to Zaman for $200,000. The closing was scheduled to occur on June 29, 2007, but the pressure of the foreclosure proceedings caused the advancing of the closing date to Saturday, June 23, 2007. At closing, Zaman paid Felton $85,960 -- assumed to be the difference between the purchase price and the amount needed to extinguish the mortgage. On June 23, the parties also entered into another contract, which permitted Felton to rent the property for $2000 per month, while granting her an option to purchase the property from Zaman for $237,000, no later than September 29, 2007.
Although the contract and deed executed by Felton state the property is in Cream Ridge, upon attempting to record the deed, Zaman was advised by the county clerk that the property is actually situated in Plumsted Township, and the deed was accordingly corrected and recorded. These circumstances have no bearing on the issues raised in this appeal.
The record on appeal contains the mortgagee's May 30, 2007 payoff letter, representing that the mortgagee was owed $103,840.02, an amount including principal, interest, late charges, attorneys' fees, costs, and other fees.
In the days that followed, Zaman attempted to pay off the mortgage, while Felton attempted to rescind the transaction by returning the funds she received from Zaman at closing. Zaman claims he could not pay off the mortgage because Felton represented to the mortgagee that she was still the owner. Zaman also refused to negotiate the $85,983.65 check Felton sent him.
The cashier's check was made payable to Felton but endorsed by her in favor of Zaman.
Because Felton's representations to the mortgagee prevented Zaman's satisfaction of the mortgage, the foreclosure proceedings continued. When a sheriff's sale was scheduled a few months after the closing, Zaman applied for an order to show cause in the foreclosure action pending against Felton. The record on appeal does not contain any order or orders entered at that time, but the record reveals that Zaman was permitted to pay off the mortgage in January 2008, thereby bringing an end to the foreclosure action.
Zaman commenced this action in December 2008, seeking possession of the property. He alleged that Felton had neither sought to repurchase pursuant to the option granted on June 23, 2007, nor had she vacated the property. In response, Felton filed a four-count counterclaim, alleging: fraud; slander of title; consumer fraud; and violations of the New Jersey Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68, and the Federal Truth In Lending Act (TILA), 15 U.S.C.A. § 1601 to § 1667. A five-day jury trial in November and December 2011, concluded with the jury's determination that Felton knowingly agreed to sell the property to Zaman, rejecting her claims that the June 2007 transactions constituted a thinly-disguised loan agreement or that she was defrauded.
Following a denial of Felton's motion for judgment notwithstanding the verdict or new trial in December 2011, and a denial of her subsequent motion for a directed verdict on the remaining issues in February 2012, the judge conducted a two-day bench trial in March 2012. On March 29, 2012, the judge rendered an oral opinion and entered judgment in Zaman's favor on both his complaint and Felton's counterclaim.
In this appeal, Felton argues:
I. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE REQUIREMENTS OF OPINION 26 .We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments.
II. THE TRIAL COURT ERRED BY NOT DISMISSING THE COMPLAINT BECAUSE PLAINTIFF VIOLATED THE LAW.
III. THE TRIAL COURT ERRED BY NOT FINDING THE TRANSACTION CREATED AN EQUITABLE MORTGAGE.
IV. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE MRS. FELTON'S CANCELLATION NOTICE.
V. THE TRIAL COURT ERRED BY DISMISSING DEFENDANT'S CONSUMER FRAUD ACT CLAIM.
VI. THE TRIAL COURT ERRED BY CHARGING THE JURY INCORRECTLY AND EXCLUDING ADMISSIBLE EVIDENCE.
VII. THE TRIAL COURT ERRED BY DISMISSING [FELTON'S] TRUTH IN LENDING CLAIM.
VIII. THE TRIAL COURT ERRED BY DISMISSING [FELTON'S] FAIR FORECLOSURE ACT CLAIM.
IX. THE TRIAL COURT ERRED BY NOT ENFORCING THE LAW REQUIRING A NOTICE TO QUIT BEFORE FILING THIS ACTION.
X. THE TRIAL COURT ERRED BY NOT CONSIDERING PUBLIC POLICY.
XI. THE COURT SHOULD APPLY THE FRAUD PREVENTION ACT (Not Raised Below).
In re Opinion No. 26 of Committee on Unauthorized Practice of Law, 139 N.J. 323 (1995).
We turn, first, to Felton's arguments regarding the jury trial because the jury's verdict governs the disposition of many of the remaining issues. We discern from her Point VI that Felton claims the judge erroneously instructed the jury because the burden of persuasion in proving an enforceable oral contract for the sale of real estate differs from the burden of persuasion applicable to written contracts. We gather that Felton believes the jury's finding that the parties entered into a contract does not necessarily discount the possibility that they entered into a different oral contract in the discussions preceding execution of the written contract. We find no error in the judge's explanation to the jury about the elements of an enforceable contract nor do we find there was any potential for confusion as to what the jury was asked to decide.
Felton's argument regarding the burden of persuasion also lacks merit. It appears that Felton argues that because the Statute of Frauds no longer insists upon a writing as a prerequisite to enforcing a contract to sell real property and allows for enforcement of an oral contract to sell real property when its terms are proven by clear and convincing evidence, N.J.S.A. 25:1-13, this sterner burden of persuasion applies. Although the parties' underlying intentions in entering into the contract may have been fairly debatable, that their discussions led to the formation of a written agreement is beyond question. Thus, the question of whether Felton believed that Zaman was merely loaning her money was properly governed by the preponderance standard of proof. The judge correctly instructed the jury about the burden of persuasion and all other legal principles applicable to the questions posed.
In Point VI, Felton also argues that the trial judge erroneously excluded testimony by mistakenly determining that it was inadmissible hearsay. The only ruling Felton has cited in this regard was the judge's determination, prior to trial, that Felton would not be permitted to testify about what was contained in an appraisal she had received on some earlier occasion. The judge's ruling on this point was correct, since the information she intended to convey was hearsay and Felton failed to cite to the trial judge (and has not cited to us) a hearsay exception that would have permitted the admission of that testimony. Moreover, the judge's ruling has not been shown to be an abuse of discretion. See Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). To the extent Felton believes the judge erred in excluding other evidence during the jury trial, she has not referred us to those instances. Appellate courts are not required to conduct their own independent search of the record for error. State v. Schmelz, 17 N.J. 227, 237 (1955); Shade v. Colgate, 4 N.J. Super. 356, 362 (App. Div.), appeal dismissed, 3 N.J. 91 (1949).
With the jury's unimpeachable determination that the parties intended to enter into a contract of sale and that Zaman did not commit fraud in the inducement of the contract, Felton's arguments that the judge erred in failing to find during the bench trial phase that the transaction created an equitable mortgage or that Felton had a valid consumer fraud claim, as argued in Points III and V, must fall, a fortiori. To the extent those claims might have arguably survived the jury's verdict, the judge's findings are based on substantial credible evidence and entitled to our deference. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).
We also reject what seems to be a major theme in Felton's arguments in this appeal -- that Zaman took advantage of the pending foreclosure action and Felton's alleged precarious financial predicament -- by observing that Felton obtained at Zaman's expense: the benefit of the removal of that predicament through the termination of the foreclosure proceeding; the payoff of the mortgage; $85,960; and possession of the property for longer than contemplated by the rental agreement.
Felton's remaining arguments relate to her contentions that the contract of sale should not have been enforced as a matter of law and that she retained a right to rescind after the closing. As with her other arguments, these contentions deserve no extensive discussion in this opinion. R. 2:11-3(e)(1)(E). In Point I, Felton argues that the trial judge misapplied the Supreme Court's holding in Opinion No. 26, which requires real estate brokers to include, as the first page of contracts they prepare, notice that the broker represents the seller and not the buyer, among other things. 139 N.J. at 362-63. Although a realtor, Zaman was not acting as a broker in this instance; he was acting on his own behalf, as the judge's findings make clear and as cannot be doubted from a review of the evidence. Notwithstanding that significant distinction, the contract in question in fact contains the notice required by Opinion No. 26, differing only in what the Supreme Court required by attaching the notice as the last instead of first page of the contract. Id. at 358 (directing that the notice "shall be attached to the proposed contract of sale as its cover page"). And the contract also disclosed, on its first page, the parties' right to cancel the contract within three business days, as required by N.J. State Bar Assoc. v. N.J. Ass'n of Realtor Boards, 93 N.J. 470, 475-77 (1983).
We question, without needing to decide, whether a failure to include the notice would render the contract unenforceable, as Felton appears to suggest. The notice was required by the Court in order to ensure that brokers do not engage in the unauthorized practice of law. Opinion No. 26, supra, 139 N.J. at 358. That a broker's failure to include the notice might have ethical or legal consequences for the broker does not necessarily mean that it has an impact on the contracting parties' rights.
These conclusions also require a rejection of Point III, in which Felton argues that the judge erred in finding she did not timely cancel the contract. There is, in fact, no evidence that Felton attempted to cancel the contract within the three-day attorney-review period nor at any time prior to the closing itself. It was only after the closing that Felton attempted to rescind by sending Zaman an $85,983.65 cashier's check. The contract of sale did not provide Felton with a right to cancel after closing. Nor did the subsequent rental/repurchase agreement provide such a right. These were separate agreements; the contract of sale did not incorporate the terms of the subsequent rental/repurchase agreement. To be sure, the later agreement allowed Felton the right to buy the property from Zaman, but not for $85,983.65 or, for that matter, $200,000. The purchase price, if Felton opted to buy back the property was $237,000; she made no attempt to repurchase at that price.
Felton argues that she should not have been held to the $237,000 figure in canceling the contract of sale because that figure, in essence, surreptitiously called for her payment of a usurious rate of interest. Again, this contention overlooks the fact that the two agreements were not a single integrated contract nor, for that matter, a loan transaction.
--------
We lastly mention Felton's Points VII and VIII, in which she argues the judge mistakenly dismissed her TILA and FFA claims. These contentions are without merit. Her contentions require that the court view the agreements as a single transaction that constituted either a "thinly disguised loan," see In re O'Brien, 423 B.R. 477, 490 (Bankr. D.N.J.), aff'd, Cleveland v. O'Brien, 2010 U.S. Dist. LEXIS 120220 (D.N.J. 2010), or an equitable mortgage. Both these contentions are barred -- at the very least -- by the jury's finding that the parties intended to enter into a contract of sale and that the transaction was not fraudulent.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION