On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. F-16244-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Newman.
In this action, instituted by The Oaks Condominium Association, defendants, Mohammed Abouelmaati and Pamela Krebs, owners of a condominium located at 207 Timber Oaks Road in Edison, appeal from an order entered by a judge of the Chancery Division, Foreclosure Part, following a bench trial, requiring payment by defendants of $5,000 representing the remaining amount due under a consent order of settlement with the Condominium Association; $3,210 representing previously waived fines; and $3,240 representing fines incurred since entry of the consent order. Defendants also appeal from the judge's further order requiring that they pay $27,281.56 in counsel fees incurred by the Condominium Association in its action against defendants.
The critical facts in this matter are difficult to ascertain. On October 21, 2005, the Condominium Association filed a complaint for foreclosure against defendants in which it alleged nonpayment of assessments and fines. Thereafter, on February 14, 2006, the parties entered into a consent order for settlement that required defendants to pay an outstanding balance due of $16,146.33 in three monthly installments of $5,382.11 each, the first to be remitted to the Condominium Association upon receipt of the order, and then on March 15, 2006 and April 15, 2006. Additionally, defendants were required to remit monthly fees of $185, commencing on March 1, 2006. The February fee was included in the $16,146.33. The order further stated:
In the event the plaintiff does not receive the payments required by this Order by the specified deadlines, the unpaid balance due at that time, as well as any waived fines and late fees, shall become immediately due and payable, and the plaintiff shall proceed with the foreclosure action by requesting the Court to enter judgment.
Upon receipt of the total outstanding amount due, in the amount of $16,146.33, this office will dismiss the foreclosure complaint, file a discharge of the lis pendens, file a warrant of satisfaction as to the judgment entered against the defendants and prepare a discharge of lien for recording by the defendants.
After issues arose as to whether defendants had made the third payment required by the consent order and whether they were liable for additional fines, a two-day bench trial took place. To prove its case, the Condominium Association offered the testimony of Bernard Fryd, an employee of Executive Property Management, who became property manager for the Condominium Association in September 2006, after the alleged default in payment pursuant to the consent order had occurred. As a result, Fryd had no personal knowledge of what had transpired with respect to that matter, and his testimony was based upon the documentary record.
Evidence demonstrated without dispute that defendants had remitted to the Condominium Association's attorneys, Hill Wallack, the first two installments required by the consent order. At issue was payment of the third installment. In this regard, Fryd identified an April 17, 2006 postal money order, payable to Hill Wallack, in the amount of $957.11, bearing the notation "Balance/ Mar. Apr. May fees." The money order stated it was from Mohamed Maaty, and listed his address as 207 Timber Oaks, Edison, New Jersey 08820. Abouelmaati denied procuring the money order, but admitted that he sometimes used the name Maaty, albeit not on formal documents. Fryd also identified a $5,000 cashier's check drawn on CitiBank, dated April 18, 2006, and made payable to Hill Wallack, listing Mohamed Aly, P.O. Box 841, Rahway, NJ 07065 as the remitter. The check was presented by Hill Wallack for payment, but payment was not received as the result of a stop payment order. Fryd noted that the sum of the two instruments was $5,957.11, the precise amount owed by defendants.*fn1 He did not otherwise explain why a bank check issued to Mohamed Aly would be used to fulfill defendants' obligations pursuant to the consent order or explain how he had obtained a copy of the check. Because the final $5,000 remained unpaid, Fryd claimed that defendants were in default on their obligations.
Abouelmaati's testimony differed markedly from that of Fryd. Abouelmaati stated that on Friday, April 14, 2006, he obtained a bank check in the amount of $5,382.11 from the Bank of America and hand delivered it to Brian McIntyre, an attorney at Hill Wallack. Abouelmaati testified that he had previously paid Condominium Association fees for March and April by checks sent to the Association. He testified further that, prior to April 14, 2006, he had sent to Hill Wallack by Federal Express his personal check in the amount of $205 in payment of Condominium Association fees for May, together with a $20 late fee for April, and that receipt was confirmed by an attorney at Hill Wallack while Abouelmaati was in McIntyre's office. A copy of the $5,382.11 check, purchased by Ammann Trading, Inc., Abouelmaati's company, and dated April 14, 2006, was offered in evidence at trial. Unlike the $5,000 check issued to Hill Wallack on behalf of Aly, the $5,382.11 check did not bear a stamped Hill Wallack endorsement, but instead was endorsed by hand. The signature was not deciphered. Abouelmaati did not produce a copy of his $205 check to Hill Wallack, testifying that, as the result of the foreclosure action, none of the checks issued in payment of fees for March, April and May had been cashed.
Abouelmaati testified that he made the required payments on Friday, April 14 because he was scheduled to leave for Dubai on business on Sunday, April 16, leaving JFK Airport on Egypt Air flight 985 at 11:00 p.m., arriving in Cairo on April 17 at 6:00 p.m., leaving Cairo at 10:30 p.m., and arriving in Dubai at 2:00 a.m. on April 18.*fn2 Abouelmaati's passport, produced at trial, bears a stamp indicating his arrival in Dubai as stated. The record does not indicate whether similar stamps confirmed his arrival in Egypt on April 17.*fn3
At trial, Abouelmaati testified additionally that, while in McIntyre's office on April 14, he asked McIntyre to write a letter pursuant to the consent order confirming that all required payments had been made and that the foreclosure had been stopped. McIntyre allegedly replied that he did not have time to write the letter that day, but that he would do so on the following Monday. A letter, dated April 17, 2006, from ...