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Hubschman v. Broda

Decided: November 14, 1968.

SIDNEY HUBSCHMAN, PLAINTIFF,
v.
JOSEPH BRODA AND ELEANOR BRODA, HIS WIFE, DEFENDANTS



Lane, J.s.c.

Lane

The complaint seeks foreclosure of a real estate mortgage securing a bond of defendants to plaintiff in the sum of $109,000. Defendants admit there was a default under the mortgage but dispute the amount due, alleging usury. The matter is before the court on final hearing.

Defendant Joseph Broda, being in need of $100,000, approached James Fucetola to see if Fucetola could obtain for Broda a loan from plaintiff in the amount of $100,000. Fucetola demanded $9,000 for his services. Closing of the loan took place on December 16, 1965, at which time plaintiff advanced $109,000, this amount being secured by the bond and mortgage in question. By check dated December 17, 1965, Joseph Broda paid $9,000 to Fucetola Bros., James Fucetola's contracting concern.

The mortgage was for a period of one year at the rate of 6% interest payable quarter-annually. During that one-year period Broda made four interest payments, each in the amount of $1,635. At the expiration of the one year he was unable to raise the money to pay off the mortgage. He approached plaintiff, who granted an extension of three months for an additional consideration of $5,000. At the end of the extension period defendants were still unable to raise the money to pay the mortgage and a second extension of three months was granted by plaintiff for an additional consideration of $5,000. Upon the expiration of the second extension,

defendants still being unable to pay the mortgage, this action was instituted.

Plaintiff denies that he knew Fucetola was paid $9,000 for procuring the loan. Fucetola is in the contracting business. His relationship with plaintiff apparently started when he constructed a large store for plaintiff's former business -- Two Guys From Harrison. The relationship between plaintiff and Fucetola was shown to be very close. Plaintiff had discounted $45,000 worth of notes for Fucetola as long ago as 1963. Fucetola's company had done construction for plaintiff and was engaged in business ventures with trusts set up for plaintiff's children and controlled by plaintiff. During their relationship plaintiff had loaned Fucetola or his company approximately $250,000. In connection with an apartment project in Spring Lake, Fucetola's company assisted in supervising under an oral contract, as a result of which $25,000 was paid. Although plaintiff testified that during the two-month period preceding the trial he had spoken to Fucetola twice, Fucetola testified that they had spoken at least once a week. At the time of the hearing there was $165,000 outstanding from Fucetola's company to plaintiff.

Fucetola was present at the closing of the loan. During the closing, Joseph Broda, Fucetola and plaintiff excused themselves from the room and conferred privately. Having due regard for the credibility of the witnesses, the court finds as a fact that that conference concerned the payment of $9,000. Plaintiff and Fucetola were not credible.

Additional support for the finding that plaintiff at least knew that $9,000 was being paid in connection with the loan is given by a memorandum sent to defendants by or on behalf of plaintiff. That memorandum says in part:

"Balance

$109,000.00 12-16-67

5,000.00 Points for extension ...


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