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Perez v. Sunzar

August 19, 2010

EVELIO PEREZ, FORMERLY KNOWN AS GREGORIO PEREZ, PLAINTIFF-APPELLANT,
v.
AZIZ SUNZAR A/K/A AZIZ ZUNZAR, H.W.D. ENTERPRISES, INC., HECTOR ESPINAL, TWIN SHOP SUPERMARKET, AND AIMAN ABUJUDEH, DEFENDANTS,*FN1 AND PAUL SINGH, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3507-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 3, 2010

Before Judges Stern and Graves.

Plaintiff Evelio Perez appeals from a judgment of no cause of action entered on March 16, 2009, following a bench trial. After reviewing the record and applicable law in light of the contentions advanced on appeal, we affirm.

In 1998, plaintiff loaned Hector Espinal, individually, and as President of H.W.D. Enterprises, Inc. (HWD), the sum of $290,000. Espinal used the money in connection with the operation of a neighborhood grocery store, known as "Twin Shop Supermarket," located at 126 West Kinney Street, Newark. The loan was secured by a security agreement that covered the store's equipment and inventory. A promissory note dated September 3, 1998, required Espinal and HWD to make monthly payments to plaintiff in the amount of $2993.35 for a period of twenty years.

In August 1999, Espinal sold his stock in HWD to Paul Singh and his partner, Pushepa Bhutani, for the sum of $150,000. Singh and his partner then began operating the supermarket business, subject to the lease between HWD and the landlord, Aziz Sunzar.

Singh and his partner were not represented by an attorney when they entered into the stock purchase agreement, and they were unaware of the promissory note dated September 3, 1998. Nevertheless, Singh subsequently acknowledged HWD's obligation to plaintiff, and the parties agreed to modify the terms of the September 3, 1998 promissory note.

In a written agreement dated April 26, 2004, which designated HWD as "Borrower" and Evelio Perez as "Lender," the parties agreed as follows:

1. H.W.D. Enterprises, Inc. owes money under Note in sum of $290,000.00 dated September 3, 1998 and same is resolved as follows:

a. Lender acknowledges receipt of $9,500.00 which satisfies any amount due under Note or any other document as of November 1, 2003.

b. Borrower shall pay $1,000.00 per month commencing on February 1, 2003 and every month thereafter until February 1, 2006.

c. Borrower has right to pay $175,000.00 to Lender on or before February 1, 2006 in satisfaction of any money due to Lender under said Note.

d. On or before February 1, 2006, Borrower has the right to give possession of the Business to Lender in exchange for satisfaction of [the] Note upon Lender taking possession of store and paying wholesale value of inventory at business premises (provided that such inventory is in good and saleable condition and not have exceeded its expiration date). All debts owed by Borrower shall be paid out prior to giving possession of the business to Lender. Furthermore, the store refrigeration equipment must be ...


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