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Eisen v. Kostakos

Decided: October 15, 1971.

PHILIP EISEN AND MARY HOLSTEIN, PLAINTIFFS-RESPONDENTS,
v.
PETER S. KOSTAKOS AND TINA P. KOSTAKOS, HIS WIFE, IRVING J. SCHWARTZ AND SYLVIA H. SCHWARTZ, HIS WIFE, UNICO OIL SUPPLY INC., A NEW JERSEY CORPORATION, TRADING AS HASKINS FUELS, THE CITY OF EAST ORANGE, A MUNICIPAL CORPORATION OF NEW JERSEY, AND THE STATE OF NEW JERSEY, DEFENDANTS, AND BENDER INVESTMENT, INC., ALSO KNOWN AS BENDER INVESTMENTS, INC., A CORPORATION OF NEW JERSEY, DEFENDANT-APPELLANT



Kilkenny, Labrecque and Lane. The opinion of the court was delivered by Lane, J.A.D.

Lane

[116 NJSuper Page 362] The complaint sought foreclosure of a second mortgage on rental property in the City of East Orange owned by defendant Bender Investment, Inc. Upon a motion for summary judgment the trial court on August 5, 1970 ordered that "judgment is granted and shall be entered striking the answer of Bender Investment, Inc., also known as Bender Investments, Inc., in this mortgage foreclosure action and that plaintiffs file their proofs of the amount due on their mortgage in accordance with the Rules of Court." On October 30, 1970 after a hearing on the mortgagees' account final judgment fixing the amount due

under the mortgage at $22,699.73 and directing a sale was entered. Defendant appealed without leave granted from the August 5, 1970 order.

The mortgage was given to secure a bond of $20,000. It called for equal monthly installments of $116.67. It contained the usual acceleration clause upon nonpayment 30 days after the due date of any installment of principal, interest, taxes, water rents or liens.

Plaintiffs went into possession as mortgagees in possession on or about December 1, 1969. At that time the mortgagor was in default in two payments of principal and interest due October 18, 1969 and November 18, 1969. Additionally, a quarterly installment of municipal real estate taxes due November 1, 1969 was unpaid.

The complaint was filed April 30, 1970, setting forth the defaults referred to above. The answer filed July 1, 1970 denied the installments of principal and interest due October 18, 1969 and November 18, 1969 were unpaid, alleged that the quarterly installment of taxes was paid during the early part of December 1969, and set forth as separate defenses that the plaintiffs had been in possession since December 1, 1969 and "hence any and all amounts due relative to their mortgage have or should have been paid prior to the complaint herein"; waiver of any alleged default; estoppel to allege any default; accord and satisfaction reached prior to the mortgagees going into possession; and that the $116.67 allegedly due as of the time the plaintiffs entered into possession was "so legally insufficient as to be precluded from constituting a default under the mortgage by virtue of the doctrine of ' de minimis.'"

On July 7, 1970 plaintiffs filed a motion for summary judgment supported by an affidavit. Among other things the affidavit charged that defendant had failed to pay the monthly installment of principal and interest amounting to $571.67 due on the first mortgage, the October installment of principal and interest amounting to $116.67 due on the second mortgage, municipal taxes amounting to $2,017.74

due November 1, 1969; water rents amounting to $1,111.98 due the City of East Orange, and fire and liability insurance premiums amounting to $49.54. The affidavit further showed that when plaintiffs went into possession they were compelled to advance immediately $571.67 for payment of principal and interest due on the first mortgage; $650 on account of the municipal taxes due November 1, 1969; $1,111.98 due for water rents; fire and liability insurance premiums of $49.54; and payment of $50 for a bill of Public Service Electric and Gas Company. Plaintiffs stated that from December 1, 1969 when they went into possession until the filing of the complaint, the rents collected totaled $10,159.14, whereas the disbursements totaled $13,734.93. Paragraph 11 of the affidavit which was not denied stated in part:

Mr. Bender informed us that on December 5, 1969 a new mortgage loan would be obtained which would pay off the mortgage indebtedness to us including the moneys advanced by us. This mortgage loan was never consummated. Additional time was given to Mr. Bender in order to negotiate another loan and when he informed us that all his sources for a loan were exhausted the within foreclosure proceedings were commenced.

In answer to the motion for summary judgment, the affidavit of John S. Bender, Esq., was filed. He alleged that the amounts due for taxes and water rents were fully paid before the filing of the complaint. Obviously such payments were made by plaintiffs as mortgagees in possession. He further alleged that from the rents collected plaintiffs "should presently have a surplus on hand after the payment of all amounts due relative to the continued operation of the premises, all amounts currently due upon their mortgage and the prior first mortgage, as well as any and all amounts advanced by them during the 7-month period." The affidavit concluded, "Any and all defaults alleged relative to the plaintiffs' mortgage have been, or should have been, cured as of the present time from the net income

realized from the continued operation of the premises by the plaintiffs since December 1st, 1969."

On the hearing of the motion for summary judgment the court merely said that there was a default without specifying what the default was and that it would grant the motion for summary judgment. We call attention to R. 1:7-4, which is incorporated in the summary judgment rule, R. 4:46-2. It is not sufficient for a trial court merely to state the conclusion that there was a default and that, therefore, summary judgment is being granted. The trial court should have specifically set forth findings of fact and conclusions of law. A discussion of the facts and the law would not only be of great help to an appellate court, it might well have caused defendant to reconsider an appeal.

The issues before us are: (1) Is the order appealed from interlocutory, and since no leave to appeal has been granted, should the appeal be dismissed? (2) Assuming the mortgagees had collected more rents than they had disbursed, were they obligated to apply the excess rents to their mortgage so as to cure the default that occurred before they went into possession? (3) Did ...


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