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High Point At Lakewood Condominium Association, Inc v. Yoel Oshri

December 17, 2010

HIGH POINT AT LAKEWOOD CONDOMINIUM ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
v.
YOEL OSHRI,
DEFENDANT/THIRD PARTY PLAINTIFF-APPELLANT,
v.
HONIG & GREENBERG, L.L.C., THIRD PARTY DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1670-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 29, 2010

Before Judges Reisner and Sabatino.

Defendant Yoel Oshri seeks review*fn1 of the Law Division's entry of an amended judgment against him in the sum of $9,902.00, plus $1,980.40 in amended counsel fees and costs. Defendant also seeks review of the Law Division's dismissal with prejudice of his counterclaim against plaintiff, High Point at Lakewood Condominium Association, Inc., and his third-party complaint against the law firm of Honig & Greenberg, L.L.C., principally alleging violations of the Fair Debt Collection Protection Act, 15 U.S.C. §§ 1692-1692p ("FDCPA").

We need not detail the extensive procedural chronology of this litigation, which encompasses dozens of motions and orders in the trial and appellate courts, including an unsuccessful interlocutory application by defendant to the United States Supreme Court, various collateral attacks, fourteen transcripts, and numerous other materials in the appendices. Rather, it will suffice to state that the litigation arises out of efforts by plaintiff, a condominium association, to collect from defendant, a unit owner in the condominium complex, unpaid fees and other accrued charges. After filing liens against defendant's property by invocation of N.J.S.A. 46:8B-17, plaintiff retained the services of a law firm, third-party defendant Honig & Greenberg, to pursue a monetary recovery from defendant.

Defendant does not dispute that he has not paid the charges imposed by plaintiff, but instead he maintains that the charges are unjustified. He also contends that plaintiff has not fulfilled its obligations concerning the maintenance of the premises, that it imposed improper liens against him, and that it has engaged in various other forms of wrongful conduct and breaches of fiduciary duty.

On appeal, defendant raises numerous arguments in his brief and reply brief, including contentions that the court erred in:

(1) disregarding alleged false statements in correspondence from plaintiff's counsel; (2) dismissing the third-party complaint and not finding a violation of the FDCPA by the law firm; (3) granting plaintiff partial summary judgment; (4) accepting an allegedly improper certification from plaintiff; (5) relying upon unpublished authority when ruling in plaintiff's favor; (6) rendering judgments without adequate proof of the debt owed; (7) dismissing his counterclaim, which alleged breach of fiduciary duty and other wrongs by plaintiff; (8) dismissing the counterclaim before the completion of discovery; (9) allowing plaintiff to impose a lien under N.J.S.A. 46:8B-21(a) without proper notice; (10) allowing plaintiff to engage in an alleged conspiracy and in alleged racketeering; (11) failing to render decisions impartially and considering factual matters on personal knowledge in violation of N.J.R.E. 605; (12) improperly taking judicial notice of matters under N.J.R.E. 201(e); (13) entering a judgment without adequate proof that the underlying debt was timely and valid; (14) accepting false statements from respondents' counsel; and (15) accepting a brief from respondent that was not dated and signed.

Having fully reviewed the numerous arguments that defendant raises on appeal respecting the entry of the amended judgment and the dismissal of his third-party complaint, we conclude that those arguments manifestly lack merit and do not warrant discussion in this opinion. R. 2:11-3(e)(1)(E). As to those two discrete aspects of the case, we shall add only some brief comments.

The judgment entered in favor of plaintiff, as amended, followed a two-day proof hearing. Defendant attended that hearing, at which he testified and at which he was afforded an opportunity to cross-examine the testimony of plaintiff's witness, the association's secretary. The proofs adduced at that hearing, including the testimony and the related documentary exhibits discussed by the witness, provide substantial credible evidence that the charges*fn2 imposed by plaintiff were recoverable from defendant. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974); see also Glen v. June, 344 N.J. Super. 371, 376-77 (App. Div. 2001) (observing that a unit owner's obligation to pay condominium fees is "unconditional"). The amended judgment issued by the trial court has reasonable support in the record. We therefore will not disturb it, subject to any offsetting judgment that may ultimately be entered with respect to defendant's counterclaim, which we shall discuss, infra. See Glen, supra, 344 N.J. Super. at 380-81 (noting that the condo association's breaches of duty allowed the unit owner to recover damages from the association, but that those breaches did not vitiate the owner's obligation to pay assessments due to the association).

The trial court's dismissal of the third-party complaint alleging violations of the FDCPA by plaintiff's litigation counsel is likewise sustained. The trial court correctly found that the law firm did not represent plaintiff at the time that allegedly-improper liens were filed against defendant. The trial court also reasonably determined that the law firm had a right to file the collection action in the Law Division against defendant when it did, even though he disputed the charges. Cf. Loigman v. Kings Landing Condo Ass'n, 324 N.J. Super. 97, 107 (Ch. Div. 1999) (finding a violation of the FDCPA where the recording of a lien for unpaid assessments occurred after the property owners disputed the validity of the debt).*fn3

We lastly consider the trial court's dismissal of defendant's counterclaim. The counterclaim was dismissed in the wake of sharp disputes over defendant's efforts to obtain discovery from plaintiff and over whether the court had prematurely scheduled an arbitration session in the case pursuant to Rule 4:21A-1. The pertinent chronology may be summarized as follows.

Prior to the discovery end date of January 15, 2008, defendant served interrogatories and other discovery demands upon plaintiff. Plaintiff did not respond to those discovery demands to defendant's satisfaction. After defendant complained about plaintiff's non-compliance, the judge then-assigned to the case ("the motion judge") entered an order on January 18, 2008 extending discovery. The motion judge also advised defendant that, if he believed that plaintiff had not provided discovery as required, he should file an appropriate motion to compel that discovery. Defendant filed such a motion, which was substantially granted by the court in a oral hearing on May 12, 2008, and confirmed in a written order dated May 27, 2008. In particular, the May 27, ...


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