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Arsenio D. Ong v. Samuel Ong

May 19, 2011

ARSENIO D. ONG, PLAINTIFF-APPELLANT,
v.
SAMUEL ONG, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3379-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 28, 2011 -

Before Judges Sabatino and Alvarez.

This case involves a financial dispute between two brothers, plaintiff Arsenio Ong and defendant Samuel Ong. The trial court granted defendant summary judgment, concluding that plaintiff's complaint seeking to collect a debt from him was time-barred and otherwise legally deficient. We affirm.

The following chronology of relevant events appears from the record. On April 16, 1992, plaintiff loaned defendant $42,500 to facilitate the purchase of a condominium in the California Hills development in Absecon. At that time, defendant signed a short handwritten statement acknowledging his receipt of the funds, the debt's due date of September 1992, a ten percent interest rate, and his agreement that the condominium would be used "as collateral."

The brothers purchased the condominium with the express mutual purpose of immediately re-selling it, as they had already identified a third party who had given his tentative assent to buy the property for $55,000. When that anticipated resale occurred, plaintiff would be reimbursed the $42,500 loan, and the remaining profit after costs would be divided evenly between the parties.

It is undisputed that only the names of defendant and his wife*fn1 appear on the property's title. No partnership or other business association was ever formally created by the parties. Plaintiff made no effort to obtain or record any mortgage interest or lien on the property.

Ultimately, the anticipated buyer walked away from the transaction, and defendant retained possession of the property. For a period of time he derived rental income from a holdover tenant that he allowed to stay on the premises. Plaintiff, who resided in a different unit in the California Hills subdivision, was aware of this arrangement.

In 1998, the parties' elderly mother and plaintiff's wife*fn2 moved into the property. The mother passed away in 2004. Plaintiff's wife remained on the premises. Despite having made some initial unsuccessful demands upon his brother's wife for rent, defendant allowed her to remain at the property rent-free until it could be sold.

From April 1992 through October 2007, defendant did not repay plaintiff any of the initial $42,500 loan. In November 2007, December 2007, and January 2008, defendant made three consecutive, monthly payments of $1,000 to plaintiff. Plaintiff asserts that these three payments were related to the condominium purchase. Defendant, on the other hand, contends that he paid the $3,000 to his brother for unrelated reasons. The parties agree there is no writing documenting the purpose of the three payments.

On October 6, 2008, plaintiff filed a complaint in the Law Division against defendant, seeking $39,500, plus interest and costs, representing what he believed to be the outstanding balance due on the 1992 loan. Defendant denied the key factual averments in the complaint and also asserted a statute of limitations defense. As part of the affirmative defenses accompanying his answer, defendant alluded to the parties having "established a partnership" as to the Absecon property.

Seizing on this "partnership" reference, plaintiff filed an amended complaint, requesting that any implied "partnership agreement" be enforced, "disgorging the defendant of profits received by him, memorializing [plaintiff's] ownership, [and] partitioning and selling same with recovery to plaintiff for all his share of profits." In turn, defendant filed a counterclaim asserting that, at some unspecified time and for some unspecified reason, he had loaned plaintiff $11,687.50 that was never repaid.*fn3 Plaintiff denied such a loan.

During his ensuing deposition, defendant stated in pertinent part that, subsequent to its purchase, he and his brother didn't "discuss the detail[s]" of the condominium at all. Defendant testified that he had made efforts at the time of sale to have plaintiff's name put on the deed, but plaintiff refused because he "never want[s] to get involved." Defendant was adamant in his ...


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