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Wesly v. Camacho

July 5, 2007

JACINTO WESLY AND HILDA WESLY, PLAINTIFFS-APPELLANTS,
v.
CLARA WESLY CAMACHO, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Hudson County, No. C-29-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 14, 2007

Before Judges Wefing, Parker and Yannotti.

Plaintiffs Jacinto Wesley and his wife Hilda appeal from a judgment entered following a bench trial in the Chancery Division. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiffs brought this suit to set aside a deed they executed in 2002 transferring to defendant Clara Wesly Camacho a condominium in Union City. Defendant Clara is Jacinto's daughter through his marriage to his first wife, who died in 1977.*fn1 When Jacinto and Hilda married in 1983, Clara was approximately eighteen years old. At the time of trial, Jacinto was eighty-three years old and Hilda was seventy-nine and in poor health.

In 1997 plaintiffs purchased a condominium located at 200 43rd Street in Union City for $73,900. In connection with this purchase, plaintiffs received $17,500 from Hudson County's Home Investment Partnerships Program, First-Time Homebuyers Assistance Program, and a mortgage for the balance from Summit Bank.*fn2 In 2002 plaintiffs transferred this condominium to Clara for the stated consideration of one dollar. In December 2004 plaintiffs filed suit in the Chancery Division, seeking to rescind this deed.

At trial, Jacinto testified that he did not understand the import of the document he had signed, and mistook it for a will, under which Clara would receive the condominium after his death and the death of Hilda. The deed was prepared by an attorney who had represented Clara and her husband in the past. Although the attorney did not talk to Jacinto outside the presence of Clara, he testified that he was satisfied that Jacinto understood the transaction and that he was doing it voluntarily. It was Clara who brought her father to his office. The attorney testified that he considered Clara to be his client but that he never sought a waiver from Jacinto as to the conflict which existed in this situation. He also testified that he never advised Jacinto to seek separate counsel because he did not believe it to be necessary. Clara instructed the attorney not to perform a title search, and the attorney used the deed that Jacinto had received when he and his wife purchased the condominium to prepare the deed transferring it to Clara. The attorney testified that he explained to Jacinto that Jacinto would remain responsible for any debts or liens on the property.

Jacinto was born in the Dominican Republic, and his native language is Spanish. The attorney involved in the transfer of the condominium spoke to Jacinto in Spanish. Prior to coming to the United States in 1958, Jacinto had attended medical school in the Dominican Republic. After arriving in the United States, Jacinto took classes for two years in order to qualify to practice medicine here. Those classes, and the tests that he was required to pass to obtain his medical license, were all in English. Jacinto practiced medicine for a number of years in New Jersey. He did not maintain an office in which he saw patients but worked in a number of hospital emergency rooms. In addition, Jacinto had written several articles on medical topics, each of which was in English.

Clara testified that her father had often spoken of bequeathing her the condominium, but that she was concerned that Hilda might try to defeat such a testamentary disposition and thus she suggested that the property be deeded to her. After the deed was signed and recorded, Jacinto continued to live in the condominium, and to pay its related expenses.

The attorney who was involved in this transaction only prepared the deed transferring the property from Jacinto and Hilda to Clara. He had no involvement in the actual execution of the deed.

Jacinto testified that he signed the document while in the attorney's office, thinking he was executing his will. The attorney, however, testified that Jacinto took the deed with him when he left the office, without having executed it. All of the witnesses to the document executed it in the Dominican Republic.

Jacinto wrote a check to the attorney that day for his services. On the memo line of the check is written "quitclaim deed Clara Wesly (my daughter)." Jacinto testified that he was instructed to write that on the memo line and did not understand its significance when he did so.

It is undisputed that the attorney never met with Hilda to determine if the transfer accorded with her wishes. Hilda, due to her poor health, resided in the Dominican Republic. Jacinto left to visit her the day after meeting the lawyer. He testified that she signed the deed and that he then took it ...


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