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Strulowitz v. Susan B. Anthony Building and Loan Association

Decided: July 9, 1971.

GIZELLA STRULOWITZ AND HERMAN STRULOWITZ, PLAINTIFFS,
v.
SUSAN B. ANTHONY BUILDING AND LOAN ASSOCIATION, NOW KNOWN AS SUSAN B. ANTHONY SAVINGS AND LOAN ASSOCIATION, A BANKING ASSOCIATION OF THE STATE OF NEW JERSEY, DEFENDANT



Herbert, J.s.c.

Herbert

[115 NJSuper Page 482] On April 6, 1971 plaintiffs brought this action to have the court determine the amount due on a mortgage plaintiffs had given to defendant in 1959 and for cancellation of that mortgage upon payment of the amount so determined. Because a contract had been made to sell the mortgaged premises free and clear of liens, plaintiffs sought interlocutory relief and, after argument on the adjourned return date of an order to show cause, they were

ordered to deposit with the clerk of the court the full amount defendant claimed to be due on the mortgage debt ($5,930.17), and it was further ordered, among other things, that the lien of the mortgage be transferred to the money on deposit and the real estate relieved of the lien.

There has now been a summary hearing to resolve the basic dispute over the amount due from plaintiffs to defendant. The difference between the two positions is small in dollars though important in principle to both plaintiffs and defendant.

It is argued for plaintiffs that they made, on March 10, 1971, a tender of the amount then claimed by defendant to be due and that their tender is entitled to recognition as an act which stopped the running of interest. On January 29, 1971 defendant wrote plaintiffs a letter containing this statement of the mortgage account:

Balance due as of February 1, 1971 $5,651.88

Interest 2/1/71 28.26

Premium for repayment of mortgage 169.56

--------

5,849.70

Interest per diem .94

On March 10, 1971 plaintiffs' attorney wrote to defendant on behalf of his clients. He enclosed a certified check to the order of defendant, but his letter included these paragraphs:

The mortgagors are paying this amount under protest inasmuch as they claim the account has not given them proper credits ...


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