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Brocha Equities, LLC v. Cabigas

April 1, 2008

BROCHA EQUITIES, LLC, PLAINTIFF-APPELLANT,
v.
LEO V. CABIGAS, MARY ANN B. SAWIT-CABIGAS, SAWIT CABIGAS PROPERTIES, LLC, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, No. MID-DC-13694-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2008

Before Judges Wefing and Parker.

Plaintiff appeals from a trial court order entered following a bench trial dismissing its complaint and entering judgment for defendants on their counterclaim for two thousand five hundred dollars. After reviewing the record in light of the contentions advanced on appeal, we affirm.

The litigation and this subsequent appeal arise out of a failed real estate transaction. On July 13, 2005, defendant Sawit Cabigas Properties, LLC, contracted to buy from plaintiff Brocha Equities, LLC, property located at 11 Chambers Street in Trenton, New Jersey. The purchaser gave a deposit of five thousand dollars toward the total purchase price of forty thousand dollars, the balance to be paid at closing by either cash, bank check, certified check, or a check drawn on an attorney's trust account. The contract contained the following paragraph:

TITLE: THE SELLER represents that the buildings on the property are located within the lot boundary lines; that there are no encroachments or easements, or survey or other defects not mentioned in this agreement that would result in a bad title.

Good title is defined for the purposes of this agreement as that which can be insured by any of the title companies licensed by the State of New Jersey, at normal and usual rates and without exception other than those that are standard in all policies and those mentioned in this Agreement.

The contract called for a closing on or before August 22, 2005. That, however, did not occur. The record does not provide an explanation for the delay between the July contract and October 19, 2005, when defendant's attorney wrote to plaintiff, forwarding a copy of a title binder issued by Title Agency, Inc., and asking for proofs to clear the exceptions noted. The binder had several exceptions, including the following:

(g) Subject to any federal, New Jersey inheritance and/or New Jersey estate tax being owed for the estate of Mohamed Ahmad Mahgoub [plaintiff's predecessor in title].

The binder also noted that a search had come upon open judgments against persons "in the chain of title of the same or similar name." It also noted the existence of a bankruptcy proceeding under Docket No. BK-011943-1990 involving an individual either in the chain of title or having a similar name.

The record is not entirely clear as to plaintiff's acquisition of title. There are statements in the record that Mahgoub was the victim of a homicide and that plaintiff purchased this property from the individual appointed as administrator of the estate. There is a further indication that Mahgoub owned a number of parcels at the time of his death, but the record is silent as to their location or value. Nor is there any indication in the record as to Mahgoub's income or whether he filed timely and accurate income tax returns during his lifetime.

Plaintiff did not respond by providing proofs to remove the exceptions noted by Title Agency, Inc., and shortly thereafter defendant's attorney sent a letter to plaintiff declaring the contract "null and void for failure to close per the contract date" and asking for return of the deposit.

Plaintiff's attorney responded by letter dated November 18, 2005, noting that the contract could not be voided for failure to close by the contract date because time had never been declared to be of the essence. The letter also noted that the contract defined good title as that which could be insured by any title company licensed by the State of New Jersey and that his client had arranged for a title binder issued by ...


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