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Mallozzi v. Cerciello

February 10, 2009

ANGELO MALLOZZI, PLAINTIFF-APPELLANT,
v.
FILOMENA CERCIELLO AND NADIV BITON, DEFENDANTS, AND VINCENT J. CERCIELLO, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Union County, Docket No. C-47-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 13, 2009

Before Judges Parker, Yannotti and LeWinn.

Plaintiff Angelo Mallozzi appeals from an order entered by Judge John F. Malone on November 16, 2007, which granted summary judgment in favor of defendants Filomena Cerciello and Vincent J. Cerciello (the Cerciellos), discharged a notice of lis pendens that had been filed against the real property that is the subject of this lawsuit, and awarded defendants $6,500 on their counterclaim along with costs of suit.*fn1 Plaintiff also appeals from an order entered on January 4, 2008, which denied his motion for reconsideration. For the reasons that follow, we affirm.

The following facts are relevant to our decision. On December 17, 2002, plaintiff purchased from the Cerciellos certain real property on Spring Street in Elizabeth, New Jersey. The property is described on the City's tax map as Block 8, Lots 1570.W08 and 1572.W08. The purchase price for the property was $425,000.

Plaintiff paid the Cerciellos $100,000 in cash and provided defendants with a note in the amount of $325,000 plus interest. The note provided, among other things, that plaintiff would pay twenty-four monthly installments of interest only, with the principal of $325,000 due on January 17, 2005. Plaintiff granted the Cerciellos a purchase money mortgage to secure payment of the note. In addition, plaintiff executed a deed that conveyed title of the property back to the Cerciellos. The parties agreed that the deed would be held in escrow and filed in the event plaintiff defaulted on his obligations under the note and mortgage.

Plaintiff thereafter failed to pay certain interest payments due under the note and, by letter dated August 7, 2006, the Cerciellos' attorney, Howard L. Egenberg (Egenberg), notified plaintiff that he was in "serious default under the terms of the mortgage note and mortgage[.]" Egenberg advised plaintiff that, unless the past-due payments were brought current, the deed transferring title to the Cerciellos would be filed and plaintiff's ownership of the property terminated.

On September 11, 2006, the parties entered into a mortgage extension agreement, under which plaintiff agreed to pay by October 30, 2006, all interest payments then due and owing under the aforementioned note and mortgage. The agreement extended all of the terms and conditions of the note and mortgage to February 28, 2007. The agreement provided that, in the event plaintiff defaulted on his obligations, the Cerciellos could file the deed in lieu of foreclosure transferring title to the property to the Cerciellos.

Plaintiff thereafter failed to make the payments required under the note and mortgage. On November 28, 2006, Egenberg again informed plaintiff that he was in default because he had not made the required payments and failed to pay real estate taxes on the property. In his letter, Egenberg stated that, unless plaintiff made all of the payments due under the note within thirty days, the deed in lieu of foreclosure transferring title to the Cerciellos would be recorded and plaintiff's ownership interest in the subject property terminated. Because plaintiff failed to pay the amounts due within thirty days, the Cerciellos filed the deed with the county clerk and it was recorded on January 9, 2007.

Plaintiff subsequently informed the Cerciellos that he was interested in re-acquiring title to the property. In January 2007, the Cerciellos provided plaintiff with a summary of the amounts due and owing under the note and mortgage through December 16, 2007, which totaled $28,166.59. Plaintiff tendered to the Cerciellos a check in that amount. Plaintiff said that this payment was "an act of good faith" to prevent a sale of the property to a third party. The Cerciellos accepted the payment.

The parties' attorneys negotiated the terms of a contract for the sale of the property to plaintiff. On February 5, 2007, Egenberg wrote to plaintiff's attorney, Fred S. Dubowsky (Dubowsky), and proposed that plaintiff re-purchase the property at a price of $325,000. Egenberg wrote, "[The] closing must occur within [ninety] days and a 10% deposit is required within [ten] days." Egenberg said that plaintiff or Dubowsky must provide written confirmation that they agreed to the proposed terms, along with the deposit. Dubowsky responded in a letter dated February 13, 2007, and tendered a deposit in the amount of $32,500, but stated that plaintiff would have six months to close on the transaction.

Egenberg replied in a letter dated February 20, 2007, in which he set forth certain additional terms, including a requirement that plaintiff name the Cerciellos as additional insureds on plaintiff's then-current property liability policy. Egenberg stated that, in order for any contract to be effective, plaintiff had to provide proof of such insurance coverage, in the form of an endorsement, no later than 12:00 noon on Friday, February 23, 2007. Egenberg wrote, "In order for this transaction to advance and go forward the insurance endorsement is mandatory. If I don't receive same I will return the deposit to your office as of Friday afternoon. This is not an issue for negotiation."

Plaintiff failed to provide proof of the required insurance coverage within the time prescribed and, by letter dated February 23, 2007, Egenberg advised Dubowsky that the attempts to enter into the agreement were "cancelled." The Cerciellos thereafter ...


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