April 28, 2009
THE OAKS CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
MOHAMMED ABOUELMAATI AND PAMELA J. KREBS, DEFENDANTS-APPELLANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 22, 2009
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 McIntyre to Krebs and Abouelmaati with a copy to The Oaks Condominium Association stated in relevant part:
This letter will confirm receipt of two checks, one in the amount of $5,382.11 representing the third payment under the settlement agreement, and one in the amount of $575.00, which represents your assessment payments for the months of March, April and May. We will now comply with the remainder of the settlement agreement and 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.
When confronted at trial with this letter, Fryd denied seeing it previously. Fryd also denied previously seeing the April 14, 2006 Bank of America check for $5,382.11.
We note that the McIntyre letter is not consistent with Abouelmaati's testimony that he had paid $205 in fees to Hill Wallack, not $575. Its content is likewise difficult to reconcile with evidence of the April 17, 2006 postal money order for $957.11, made payable to Hill Wallack. Additionally, the letter does not reflect the receipt of the $5,000 cashier's check obtained by Aly. Nonetheless, McIntyre was not called as a witness at the trial, and for that reason, the accuracy of the statements contained in his letter is difficult to determine.
In other testimony given by Abouelmaati, he denied any connection to the $5,000 CitiBank check, stating in part that his accounts were with Bank of America. Review of the exhibits at trial discloses that payment in February of the amount required by the consent order was accomplished by issuance of a Bank of America cashier's check for $3,000, listing Ammann Trading Inc. as remitter and an additional corporate check drawn on Ammann Trading's account with Fleet Bank in the amount of $2,382.11. The March payment was made utilizing a Bank of American check in the amount of $5,382.11, again listing Ammann Trading Inc. as the remitter. None of the prior, concededly genuine, checks was drawn on CitiBank.
In connection with his case, Abouelmaati called as a witness Mohammed Aly, the remitter of the $5,000 CitiBank check - a person whom Abouelmaati claimed he did not know until some time after the dispute as to the third payment had arisen. Aly testified that he was the owner of Skyline Limousine Company. In April 2006, a former driver, Shabir Kahn, informed Aly that Kahn's present employer, another limousine company, represented by Hill Wallack, had declared bankruptcy and in that connection, sought to sell a limousine with 55,000 miles on it for $5,000. Aly determined to purchase the vehicle, sight unseen, and he obtained the CitiBank check, made payable to Hill Wallack, to cover the purchase price. However, after tendering the check but not receiving title to the car, Aly had second thoughts regarding the deal, and he had a stop payment order placed on the check. It is noteworthy that the $5,000 CitiBank check was dated April 18, 2006, a day when Abouelmaati appears unquestionably to have been in Dubai, and a day after the McIntyre letter was written.
To explain the fate of the April 14, 2006 cashier's check in the amount of $5,382.11, Abouelmaati offered the testimony of Gamal Attwa, who testified that the check, made out to Hill Wallack, had been given to him by an employee of the Condominium Association named Dennis in payment for damage Dennis had caused to Attwa's car. It may also have been compensation for a broken finger sustained by Attwa in a dispute with Dennis. According to Attwa, Dennis endorsed the check in Attwa's presence, and Attwa negotiated the check without any further endorsement on July 28, 2006. Attwa stated that he could not read English, and thus was unaware that the check was made payable to Hill Wallack and that language on the check declared that it was void after ninety days from the date of issuance, April 14, 2006, and thus was non-negotiable*fn4 when received by Attwa.
Rebuttal testimony given by Kathy Larkey-Jespersen, the President of the Condominium Association's Board of Trustees, established that "Dennis" was Dennis Tobin, the resident manager of the Condominium Association until March 2004 when he was fired. Jespersen testified that Tobin vacated his Association-supplied condominium at the end of 2004. Other evidence demonstrated that Tobin's condominium was sold by the Condominium Association on June 15, 2005, long before the events at issue here.
A further issue was raised at trial as to whether Abouelmaati had illegally installed a satellite dish on his premises, in violation of a Condominium Association requirement that the support for the dish be placed in a bucket of concrete and not be embedded in the ground. Initially, Abouelmaati stated that he did not possess a satellite dish, a statement that was confirmed by Attwa and by photographs offered by Abouelmaati at trial. However, Abouelmaati's position was challenged by Jespersen, who testified that she had observed the dish in place as recently as the preceding Monday and had both viewed and photographed the support for the dish on the prior day.
Additionally, although Abouelmaati claimed at trial that he had written to the Condominium Association to inform it that he did not have a satellite dish, he failed to produce a copy of his letter at trial, despite the judge's request that he do so. As a final matter, inspection by counsel for the parties disclosed a metal pipe receptacle, with mulch mounded up to conceal it, at the location where the satellite dish was claimed to have been placed. When confronted with this evidence, Abouelmaati stated that he had forgotten that he had placed a flag in that location following the World Trade Center disaster.
At the conclusion of testimony, the trial judge issued an opinion from the bench awarding damages to the Condominium Association. In that connection, the judge found that the third payment pursuant to the consent order had been accomplished, along with payment of Condominium Association fees for March through May, by tender by Abouelmaati or his agent of the $957.11 postal money order of April 17, 2006 and Aly's April 18, 2006 CitiBank cashier's check in the amount of $5,000, against which a stop payment order was later placed. With respect to McIntyre's letter, the judge stated:
Well looking at the face of that letter[,] that letter is even by Mr. Abouelmaati's testimony not accurate, because Mr. Abouelmaati says he didn't give Mr. McIntyre a check for $575, he said he only gave him a check for $205, but he did give him a check for %5382.11, the third payment. So it's clear that the McIntyre letter is inaccurate.
The explanation offered at the time of trial by the association is that Mr. McIntyre prepared this letter in anticipation of receipt of these checks, expecting having spoken with Mr. Abouelmaati on the phone that the checks in those amounts would be presented and thereafter what happened was two other forms of payment were received.
The judge found Aly's testimony regarding the purpose of the $5,000 check to be incredible, as well as Attwa's testimony regarding the manner in which the April 14, 2006 Bank of America cashier's check for $5,382.11 had come into his possession. Additionally, the judge found incredible Abouelmaati's denial of any knowledge of the $957.11 money order and his testimony with respect to the satellite dish. The judge thus concluded:
So the court finds as follows, that the third payment was not made, that Mr. Abouelmaati did not present a check for $5,382.11 to Mr. McIntyre. That the only payment that was received was a money order in the amount of $957.11. Payment was applied and apparently a $5,000 check from Mr. Al[y], and Mr. Al[y] stopped payment on that check.
The Court does not believe Mr. Abouelmaati, does not believe Mr. [Attwa] regarding the $5,382.11 check, which is as previously indicated exhibit P-5 in evidence.
The Court finds that the check was not given by Mr. Abouelmaati to Hill Wallack, it was not presented to the association at any point in time, that Mr. Abouelmaati and Mr. [Attwa] realized that there had to be some explanation as to payment and they concocted I find a bizarre tale about how Mr. Dennis gave Mr. [Attwa] this - this check. The Court finds that explanation to be absolutely incredible.
And I also find that Mr. Abouelmaati's testimony regarding the satellite dish never being outside his premises and his explanation, the pictures and inability to find the letter, which - which I find probably never existed where he claimed that the satellite dish never existed, his attempt I believe to cover up the pipe by mounding it up with mulch so when he took a picture you couldn't observe the pipe and then offering an explanation that he had forgotten that he had put that pipe in the ground as a holder for a flag to be not worthy of belief. He is not credible. I've had the opportunity to observe the manner in which he testified in this courtroom and he is not in the Court's view a credible witness for a whole host of reasons. The manner in which he testified, some of the incredible testimony that he offered in - in many respects.
So the third payment was not made.
The scope of our review of this matter is limited. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). We must regard the factual findings of the trial judge to be binding upon us when supported by adequate, credible and substantial evidence in the record. Ibid. Further, we must give deference to the judge's credibility determinations, since he was the one to personally view the witnesses and their demeanor. Ibid.
Nonetheless, our review of the record in this matter leads us to conclude that a key finding by the judge in this case was not supported by the evidence. Namely, there is no support for the judge's conclusion that the McIntyre letter was written in anticipation of the receipt of payment for the third installment required by the consent order and of payment for outstanding Condominium Association fees. Fryd had no personal knowledge of the matter; Jespersen did not testify on this subject; and McIntyre was not called as a witness. As a consequence, a significant foundational element supporting the judge's determination to accept the Condominium Association's contention that payment had been effected by tendering the $957.11 money order and the $5,000 Aly check is simply missing. Indeed, we do not see how a well-founded determination of this matter can be made without the testimony of McIntyre as to the circumstances leading to his drafting of the April 17, 2006 letter. We thus remand the matter to permit that testimony and such further evidence as the parties may offer and to permit a further evaluation of the evidence in light of the evidence and testimony that is proffered. In doing so, we express no opinion as to the proper result in this matter, which is a matter to be determined by the trial judge.
On appeal, defendants also challenge the award of counsel fees, noting that the trial judge failed to express his reasons for reaching the particular monetary determination that he made on that issue. Although we find that a legal basis for a counsel fee award to the Condominium Association existed in this case by virtue of N.J.S.A. 46:8B-15(e) and relevant provisions in the Master Deed and By-Laws,*fn5 we agree with the defendants that a statement of the basis for the specific award is required. See R. 1:7-4(a); Scullion v. State Farm Ins. Co., 345 N.J. Super. 431, 439 (App. Div. 2001); Golden Estates, Inc. v. Continental Cas. Co., 317 N.J. Super. 82, 91 (App. Div. 1998).
The matter is remanded for further proceedings in light of this opinion. Jurisdiction is not retained.