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Capital Finance Company of Delaware Valley, Inc. v. Asterbadi

February 19, 2008

CAPITAL FINANCE COMPANY OF DELAWARE VALLEY, INC., PLAINTIFF-RESPONDENT/ CROSS-APPELLANT,
v.
MAUREEN BELL ASTERBADI, DEFENDANT-APPELLANT/ CROSS-RESPONDENT, AND PNC BANK AND BOTOOL M. HILNI, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Cape May County, Docket No. C-100-05.

The opinion of the court was delivered by: Gilroy, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued October 1, 2007

Before Judges S. L. Reisner, Gilroy and Baxter.

Defendant Maureen Bell Asterbadi*fn1 appeals from that part of the order of the Chancery Division of May 5, 2006, which denied her request that plaintiff Capital Finance Company of Delaware Valley, Inc., the purchaser at an execution sale of her surviving husband's interest in a single-family residence located at Two 111th Street, Stone Harbor (the Property), account for principal and interest paid on the Property's first mortgage. Defendant also appeals from the order of October 17, 2006, denying her motion for reconsideration, and from the consent judgment of August 7, 2006, confirming the trial court's prior rulings and preserving the parties' rights to appeal therefrom. Plaintiff cross-appeals from that part of the order of March 16, 2006, denying its request for partition of the Property and from the consent judgment of August 7, 2006, as it confirmed that part of the prior order of March 16, 2006. We affirm in part and reverse in part.

I.

The procedural history and statement of facts are contained in the trial court's reported decision, Capital Fin. Co. v. Asterbadi, 389 N.J. Super. 219 (Ch. Div. 2006). However, the following summary will place this appeal in context. On August 17, 1993, defendant and her husband, Nabil J. Asterbadi, acquired title to the Property by a sheriff's deed, following a foreclosure action brought by a second mortgagee. The Property was purchased for $208,000, subject to the first mortgage lien of Chemical Bank of New Jersey in the amount of $450,000. Although the Asterbadis were married at the time of the purchase, the sheriff's deed did not state that the conveyance was made to them as husband and wife.

On November 18, 1993, the Asterbadis obtained a mortgage loan from Chemical Bank in the amount of $526,400, secured by a mortgage lien on the Property. The proceeds of the loan were used to satisfy the original first mortgage of Chemical Bank in the amount of $450,000; pay part of the balance due to the sheriff in the amount of $179,771.65; and pay the loan closing charges of $22,332.39. In addition to the monies borrowed from Chemical Bank, the Asterbadis contributed $85,704.04 towards the balance due to the sheriff.*fn2

In the interim, on October 4, 1993, CIT Group Equipment/Financing, Inc., obtained a judgment in the United States District Court for the Eastern District of Virginia against Nabil J. Asterbadi only in the amount of $2,286,009.97. On August 19, 2003, the judgment was docketed with the Clerk of the Superior Court of New Jersey. On May 18, 2005, the Sheriff of Cape May County, pursuant to a writ of execution, exposed for sale Nabil's interest in the Property. Plaintiff purchased Nabil's interest in the Property at the sheriff's sale for the sum of $551,100, subject to other interests of record, including defendant's ownership interest; the first mortgage lien of Washington Mutual Bank, the successor in interest to Chemical Bank; and the second mortgage held by Batool Hilni.*fn3

On July 20, 2005, plaintiff notified defendant that it had acquired her husband's interest in the Property, demanded an inspection of the Property, as well as an accounting of the Property's income and expenses. On August 26, 2005, plaintiff filed a complaint seeking a partition by sale of the Property, an accounting, and an appointment of a rent receiver. The parties moved to resolve the issues raised in the complaint on cross-motions for summary judgment.

On February 24, 2006, the trial judge issued a written opinion in which he: 1) determined that defendant and her husband had acquired title to the Property as tenants by the entirety, and plaintiff's acquisition of defendant's husband's interest does not impair defendant's right of survivorship; 2) determined that plaintiff and defendant possessed title to the Property as tenants in common with a right of survivorship, measured against the lives of defendant and her husband; 3) denied plaintiff's application for partition of the Property; 4) granted plaintiff's application for an accounting of defendant's possession of the Property from July 20, 2005; 5) directed plaintiff and defendant to establish a fair rental value for the Property to determine the basis of defendant's financial responsibilities to plaintiff; 6) directed plaintiff to account to defendant for payments of real estate taxes, municipal assessments, if any, and insurance premiums on the Property; and 7) granted plaintiff's request for inspections of the Property on reasonable notice to defendant. Id. at 230-34. A confirming order was entered on March 16, 2006.

Remaining unresolved were issues concerning the parties' responsibilities for payments made on the first and second mortgages. On April 21, 2006, the trial judge rendered an oral decision addressing these open issues. The judge denied defendant's request that plaintiff account for payments made on the first mortgage, then held by Washington Mutual Bank, concluding that defendant could seek contribution for one-half of those payments from her husband. As to the second mortgage held by Hilni, the judge determined that both parties were equally obligated on that mortgage and directed that plaintiff account to defendant for any monies paid against that mortgage. In reaching his decision, the trial judge stated in relevant part:

With respect to the first mortgage, both Mr. and Mrs. Asterbadi are individual obligors. As between the plaintiff . . . and Mrs. Asterbadi, she is responsible as far as I am concerned for any and all costs attendant to ...


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