Rimm, J.t.c. (temporarily assigned).
This matter is before the court on plaintiff's complaint to foreclose a mortgage made by defendants, William W. Mason and Charlotte A. Mason, to bar their equity of redemption to the mortgaged premises, to obtain possession of the premises, and to recover damages and costs. The property in question is known as Block 227, Lots 29.2, 30, 31.1, on the tax map of the City of Wildwood, New Jersey and is commonly known as 221 East Glenwood Avenue.
Plaintiff moved for summary judgment arguing that defendants' answer set forth no genuine issues as to any material fact. Defendants opposed the motion claiming that plaintiff had not given them proper credit for all payments they had made and that plaintiff had incorrectly calculated the amount of principal and interest due under the mortgage note and mortgage.
Partial summary judgment was granted on November 2, 1989. The court held there was no genuine issue of material fact as to the validity or priority of the mortgage being foreclosed
or plaintiff's right to foreclose, but there was a genuine issue of material fact concerning the amount due. The court reserved decision on the legal issues relating to plaintiff's right to charge late fees on the monthly payments due after the filing of the complaint and relating to the right of plaintiff to compound interest. Trial was also scheduled on the issues of payments made and credits given.
Plaintiff claims N.J.S.A. 17:12B-48(14) gives it authority in this case to compound interest by adding it to the principal sum due. This court does not agree, and plaintiff may not compound interest.
N.J.S.A. 17:12B-48(14) gives a savings and loan association operating pursuant to the Savings and Loan Act (1963) the power to "compute interest upon any direct reduction loan, on designated payment dates and add the same to the unpaid balance of such loan." However, even though N.J.S.A. 17:12B-48(14) gives plaintiff authority to charge compound interest, an agreement between the parties is necessary to do so. In Shadow Lawn Sav. and Loan Ass'n v. Palmarozza, 190 N.J. Super. 314, 463 A.2d 384 (App.Div.1983), defendant defaulted. Shadow Lawn sought to justify charging compound interest on the ground that it was authorized under N.J.S.A. 17:12B-48(14). The court held that the statute merely gives an association the authority to compound interest. In the absence of an express contractual provision for compound interest or an express incorporation of the statutory provision in the contract, interest may not be compounded. There is no such provision nor incorporation in the mortgage before the court.
Late payment charges, or late charges, are collectable as liquidated damages if there is a provision for them in the mortgage instruments. When there is such a provision, an
issue may arise as to whether the late charge constitutes valid liquidated damages or an invalid penalty. If the late charge is compensation to the mortgagee for its administrative expenses and the cost of money wrongfully withheld, it is a proper charge as liquidated damages. Garrett v. Coast & So. Fed. S. & L. Ass'n, 9 Cal. 3d 731, 108 Cal.Rptr. 845, 511 P. ...