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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Graves, Messano, and Waugh.
Defendants Mohammed Abouelmaati and Pamela J. Krebs appeal a judgment of foreclosure in favor of the Oaks Condominium Association (Association). We reverse and remand.
I. We discern the following facts and procedural history from the record on appeal.
In July 1998, defendants purchased a condominium at the Oaks in Edison Township. The master deed allows the Association to fix and collect common expense assessments. In case of nonpayment, the Association has the power to place a lien on the individual unit, which "may be foreclosed by suit brought in the name of the Association in the same manner as a foreclosure of a mortgage on real property."
In October 2005, the Association filed a complaint for foreclosure against defendants alleging nonpayment of common-expense assessments and fines. The parties subsequently entered into a consent order for settlement in February 2006:
1. The defendants owe the plaintiff the amount of $16,146.33 in past due maintenance fees, late fees, and attorney's fees and costs through February 13, 2006;
2. Defendants . . . agree to pay the outstanding balance due in the amount of $16,146.33 according to their payment proposal which was accepted by . . . the Association. Three (3) payments of $5,382.11 each will be remitted to the Association during three (3) consecutive months, commencing immediately upon receipt of this Order. The two (2) subsequent payments will be due on March 15, 2006 and April 15, 2006.
3. Defendants also agree to remit payment of the current monthly fee, presently in the amount of $185.00 but which is subject to change and/or increase. The monthly fee for February 2006 has been included in the amount stated above. Payment of the March monthly fee is due on or before March 1, 2006. Like payments are to be made on or before the first (1st) day of each subsequent month.
5. Defendants shall make all payments to The Oaks Condominium Association and forward all payments to the Association, c/o Executive Property Management Company, P.O. Box 23103, Newark, New Jersey 07189 . . . . All three (3) payments of the past fees, each in the amount of $5,382.11 shall be in the form of a money order or bank check.
7. 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 fees, shall become immediately due and payable, and the plaintiff shall proceed with the foreclosure action by requesting the Court to enter judgment.
8. 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.
It is undisputed that defendants made the first two $5,382.11 payments. However, there was a dispute concerning the third payment and additional fines required by the consent order. As a result, a two-day bench trial took place in September 2007.
As a starting point, the trial judge concluded that defendants owed $5,957.11 at the time the third payment was due on April 15, 2006. That figure reflects (1) the final $5,382.11 payment, (2) the March, April, and May monthly fees, each in the amount of $185; and (3) $20 in late fees for failure to pay the April and May monthly fees on time.
Bernard Fryd, an employee of Executive Property Management, the Association's management company, testified that defendants did not satisfy their $5,957.11 obligation. Fryd specifically identified two attempted payments, one successful and the other unsuccessful. The accounting ledger associated with defendants' condominium reflected a $957.11 credit from a postal money order dated April 17, 2006. The money order was made payable to the Association's attorneys, Hill Wallack, and bore the notation "Balance/Mar. Apr. May fees." It was issued to Mohamed Maaty, whose address was the same as Abouelmaati's. Fryd also identified a $5000 Citibank cashier's check dated April 18, 2006. The cashier's check was also made payable to Hill Wallack, contained a stamped Hill Wallack endorsement on the back, and listed Mohamed Aly, whose address was listed as a post office box in Rahway, as the remitter. Although the $5000 Citibank check, when applied to the prior $957.11 credit, would have extinguished defendants' debt, the check did not clear because of a stop payment order.
Abouelmaati denied any knowledge of or involvement with the payments Fryd described. Although he acknowledged using "Maaty" as an informal nickname, he testified that he used his full name when he writes "something official or [a] payment." Abouelmaati further testified that he had already paid the monthly fees for March and April.
According to Abouelmaati, he had mailed a personal check in the amount of $205 to Hill Wallack during the first two weeks of April 2006. The $205 included $185 for May's monthly expenses, and $20 as a late fee. Abouelmaati testified the check was sent via Federal Express and that receipt was confirmed by an attorney at Hill Wallack. However, Abouelmaati was unable to produce the check or documentary proof of the March and April payments.
Abouelmaati further testified that, on Friday, April 14, 2006, he called Brian McIntyre, an attorney at Hill Wallack, and asked if he could deliver the third installment payment personally that afternoon because he was leaving for Dubai on Sunday, April 16. According to Abouelmaati, he left New York on April 16, arrived in Cairo on April 17, and arrived in Dubai at 2:00 a.m. on April 18. Abouelmaati's passport, which was produced at trial, reflected his arrival in Dubai at 2:00 a.m. on April 18. Abouelmaati testified that he returned to the United States in August 2006.
Abouelmaati testified that he went to McIntyre's office on April 14 and hand-delivered a $5,382.11 bank check from Bank of America, dated April 14, 2006. The check, which was admitted into evidence, was purchased by Ammann Trading, Inc., Abouelmaati's company. However, the check did not bear a stamped Hill Wallack endorsement. There was an illegible signature on the back of the check. Fryd denied receiving the Bank of America check in the amount of $5,382.11.
Abouelmaati claimed that while in McIntyre's office on April 14, he asked for a letter confirming his compliance with the consent order. McIntyre responded that he was busy, but would draft the letter on the following Monday, April 17. A letter from McIntyre, dated April 17, 2006, addressed to ...