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The Cadle Company v. Pellegrino Ciarla


January 17, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Passaic County, Docket No. F-20730.

Per curiam.


Submitted December 19, 2011

Before Judges Sabatino and Ashrafi.

This foreclosure action stems from a mortgage and corresponding note allegedly signed in 1990 in connection with a home improvement contract. Twenty years later in 2010, plaintiff The Cadle Company, as an assignee, sued the homeowner whose name appeared on the mortgage, asserting that the mortgage loan was in default. The homeowner denied liability, asserting that the instruments were invalid and that the home improvements underlying the alleged mortgage loan were never performed. After a bench trial in the Chancery Division, the court dismissed the foreclosure complaint. Finding the defense witnesses "very compelling," the court ruled that plaintiff had not met its burden of proving the validity of the mortgage and also that the demanded relief of foreclosure would be inequitable.

Plaintiff now appeals, arguing that the Chancery judge's decision was against the weight of the evidence. Plaintiff further argues that defendant's contentions that the mortgage and note were invalid were insufficiently substantiated. For the reasons that follow, we affirm the Chancery judge's decision.

We summarize the pertinent facts. In December 1989, defendant Pellegrino Ciarla ("Mr. Ciarla")*fn1 purchased a home on Dover Street in Paterson from Louise D. Craig.*fn2 According to the testimony of one of his sons at trial, Mr. Ciarla spoke Italian and broken English.

On March 8, 1990, Progreso Home Inspection Company ("Progreso") allegedly contracted with Mr. Ciarla to perform certain repairs and improvements on his home, specifically the windows and siding, for the sum of $15,000. That same day, Mr. Ciarla purportedly signed a consumer note with Progreso for $15,000, with an annual interest rate of eighteen percent, to finance the work on his home. The note was secured by a mortgage provided by Essex Mortgage Corp., also dated March 8, 1990.

Plaintiff, the ultimate assignee of the mortgage, presented no witnesses at trial with personal knowledge of the execution of the mortgage or the note. Nor did plaintiff present any witnesses with personal knowledge regarding whether the improvements and repairs on Mr. Ciarla's home had actually been completed. However, plaintiff did move into evidence a one-page form document dated March 31, 1990. The document bears the letterhead of "Compliance Spot-Checks, Ltd." ("Compliance"), a firm with an address in Wayne. The document lists Progreso as the "dealer" on the transaction. The document indicates a contract amount of $15,000 and that 120 monthly payments of $272.17 were due, starting in 45 days. It references, without further description or elaboration, improvements on the "siding [and] windows" of Mr. Ciarla's property, stating that the work was completed on approximately March 31, 1990 and that the entire proceeds of the $15,000 note were to be applied to the work. In handwritten block letters near the bottom of the document, is the following statement: "WORK COMPLETED SATISFACTORILY -- PLEASE RELEASE MONEY TO CONTRACTOR." The document has two signatures: the first, an illegible signature from an inspector (presumably from Compliance) and the second, a signature alleged to be that of Mr. Ciarla as the "purchaser."

After a series of assignments, plaintiff became the assignee of the mortgage in 2000. Plaintiff alleged that the mortgage and loan had been in default since at least 1992. Defendant did not contest plaintiff's status as an assignee, but instead disputed the validity of the underlying instruments.

Plaintiff initially brought an action in the Law Division to collect on the note. That lawsuit was dismissed as untimely because it was not brought within the six year statute of limitations for contract debts. Plaintiff then filed the present foreclosure complaint in the Chancery Division in April 2010.

At the trial, plaintiff's sole witness was one of its account officers. The account officer presented certain documents from his company's file, including the mortgage, the note, and the March 1990 compliance document. No witnesses were called from Progreso, Essex Mortgage, or Compliance.

The defense, meanwhile, presented testimony from defendant's widow, Maria Ciarla, and the couple's two adult sons, Giuseppe Ciarla and Attilio Ciarla. Mrs. Ciarla testified that she had no recollection of any work being done on the home during the relevant time period. Although the trial judge found Mrs. Ciarla difficult to understand, the judge accepted her testimony as credible, noting that she was not trying to misrepresent the facts to the court.

The sons testified that they likewise had no recollection of any work being done on the windows or siding of the house in 1990. In particular, Giuseppe Ciarla, who lived on the premises until 2008, testified that siding, along with an enclosed porch, was not added to the home until 1993, three years after the alleged transaction underlying plaintiff's complaint. At that time Giuseppe was age twelve or thirteen. He noted that the construction work done on the house was performed after 1990 with the assistance of a neighbor who was a contractor. He presented a series of photographs showing the porch and the siding. He also noted that he checked the records in the city's construction office and found no permits issued for the alleged siding work supporting the mortgage and note. The other son, Attilio, similarly testified that he had no recollection of the any work being done in 1990 on his parents' house and that any improvements thereafter were performed by people that his family knew well.

Although plaintiff's counsel argued that the court should reject the sons' narratives because they were not adults in 1990, the trial judge nevertheless found their testimony to be "very credible." As part of her assessment, the judge noted that both sons now work in professions that involve the enforcement of laws, and specifically highlighted their acknowledgments of the importance of telling the truth before a tribunal.

By comparison, the judge found the evidence offered by plaintiff to be wanting. In particular, the judge observed that [o]ther than the compliance certificate that allegedly was signed on March 31, 1990, the plaintiff has absolutely no proof with regard to the execution of the documents or the work that they alleged was performed. There is even a question about the veracity of the notarization of [the] documents, as they were not executed in the presence of the notary. Plaintiff cannot even produce any proof that the defendants made actual payments on this loan.

The judge also noted her responsibility as a jurist in a court of equity and concluded that it would be inequitable to require Mrs. Ciarla and the estate to assume responsibility for this alleged debt of approximately $62,000, particularly given the passage of almost two decades since the supposed default arose.

On appeal, plaintiff argues that the Chancery court's judgment was against the weight of the evidence. It insists that the mortgage and loan are valid, that the signatures they bear are authentic, and that the compliance certificate conclusively proves that the associated home repairs and improvements were completed. Plaintiff also faults the trial court for finding the sons' testimony credible, noting that the sons were only children in 1990 and that the photographs presented were not from the 1990-93 time frame but instead from a later time. Plaintiff also cites to various provisions in the Uniform Commercial Code relating to the transfer of negotiable instruments and to a statutory provision, N.J.S.A. 46:14-4.2, that allows a signature on a mortgage to be made by "any mark" intended to effectuate the signer's intent to be bound.

Having considered the points raised on appeal, we affirm the trial court's dismissal of the foreclosure action, substantially for the cogent reasons expressed in Judge Margaret Mary McVeigh's written opinion dated March 8, 2011. We add only a few remarks by way of amplification.

The right to foreclose is an equitable right inherent in a mortgage, triggered by a borrower's failure to comply with the terms and conditions of the associated loan. Chase Manhattan Mortg. Corp. v. Spina, 325 N.J. Super. 42, 50 (Ch. Div. 1998), aff'd sub nom. Chase Manhattan Mortg. Corp. v. Heritage Square Ass'n, 325 N.J. Super. 1 (App. Div. 1999). To obtain relief in a mortgage foreclosure action, the mortgagee must establish, among other things, that the mortgage and loan documents are valid. See Great Falls Bank v. Pardo, 263 N.J. Super. 388, 394 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542 (App. Div. 1994); Somerset Trust Co. v. Sternberg, 238 N.J. Super. 279, 283-84 (Ch. Div. 1989).

Most critically here, a mortgage cannot be enforced if it does not secure a valid subsisting debt. "This is because the mortgage is merely security for the debt and without a subsisting debt or obligation, the mortgage has no efficacy. Thus, when the underlying obligation fails, the mortgage becomes a nullity." Great Falls Bank v. Pardo, supra, 263 N.J. Super. at 397.

The trial court soundly applied these principles, after finding that defendant's witnesses were "very credible" and that plaintiff failed to present any witnesses with first-hand knowledge of the mortgage, the loan, or the alleged work on the home. Although the Ciarla sons were minors (respectively ages eleven and nine) in 1990, the trial court had the discretion to consider the substance of their recollections and to evaluate their credibility. The judge was not bound to treat the compliance certificate as conclusive proof that the work was actually performed. Even if, for the sake of argument, plaintiff established that the certificate otherwise met the predicates of a business record, the record could be rejected if it were not shown to be trustworthy. See N.J.R.E. 803(c)(6). The wording on the certificate describes the work in very general and conclusory terms and is not substantiated in any manner. The trial judge was entitled as the factfinder to discount its probative value.

In reviewing findings of fact from a non-jury trial, we must accord considerable deference to the trial judge, who had the unique opportunity to see and hear the witnesses first-hand. We must affirm the court's findings if they are supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Applying that deferential standard of review, the trial judge's findings must be sustained because they have ample support in the record. The other points raised by plaintiff, including the statutory citations in its brief, lack sufficient merit or relevance to warrant discussion. R. 2:11-3(e)(1)(E).


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