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Barbara H. Fleisher*Fn1 and Michael v. Rose E. Colon A/K/A Rose Colon

February 6, 2012

BARBARA H. FLEISHER*FN1 AND MICHAEL GINN, CUST. EDEN GINN UNIF TRAN MIN ACT PA, PLAINTIFFS-RESPONDENTS,
v.
ROSE E. COLON A/K/A ROSE COLON, AND THE STATE OF NEW JERSEY, DEFENDANTS, AND KIM-AHN NGUYEN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-3115-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 20, 2011

Before Judges Fisher and Nugent.

In this appeal, we are asked to consider whether, in this foreclosure action, the Chancery judge erred in summarily determining that the mortgage held by plaintiff Barbara H. Fleisher had priority over a mortgage held by defendant Kim-Ahn Nguyen on the same property. Because the facts necessary to a full understanding of this dispute were not sufficiently developed in the trial court, we reverse and remand for further proceedings.

I

Although this foreclosure action was commenced on February 1, 2007, many relevant facts arise from an earlier suit.*fn2 We will attempt to summarize what the sparse record on appeal reveals about the earlier suit, before considering the events in this action that gave rise to the orders under review.

A

In the earlier action, which we assume was filed in late August 2003,*fn3 Nguyen sued Rose Colon and Gabriel's Salon & Spa, Inc., a business in which Nguyen and Colon were alleged to be principals. Nguyen claimed she lent $92,000 to Colon and that its repayment was to be secured, as she alleged in the amended complaint, by "a second mortgage on the real estate" on which the business operated.*fn4 In her pleadings,*fn5 Nguyen claimed that Colon never provided the mortgage and sought, among other things, a "declaration that a mortgage [on] the real estate in the name of plaintiff is valid and exists." Nguyen's counsel executed, and caused to be recorded on September 4, 2003, a notice of lis pendens, which stated:

There is pending before the above referenced court an action to enjoin defendant from conveying title to or otherwise further encumber[ing] premises.

The lands effected by said action is the house located at the premises referenced above[*fn6 ] and also described on the municipal tax map as Block 151; Lot 3.

What precisely occurred in that action is not entirely clear due to the limitations of the record on appeal. Orders entered by the Chancery judge who presided over Nguyen v. Colon, however, reveal that a trial took place on March 2 and 3, 2005; neither we nor the Chancery judge in this action*fn7 were provided with transcripts of the trial or any other relevant proceedings in that matter.

The record on appeal also reveals that, in Nguyen v. Colon, an order was entered -- apparently as a result of a motion -- on March 19, 2004, approximately one year prior to the trial of that action. That order directed Colon -- or, upon her failure, her attorney -- to "[e]xecute a second mortgage [in the amount of $92,000] on the [Morganville] real property and forward said mortgage" to Nguyen. The record on appeal also contains a copy of a document labeled "second mortgage," dated April 20, 2004, but apparently not recorded until July 22, 2004.

On April 12, 2005, final judgment was entered against Colon, declaring Nguyen's entitlement to $120,000, enforced by "a second mortgage on the real property" in Morganville. Colon was directed to execute "a second mortgage" and the judgment provided an amortization schedule for the repayment of the $120,000 debt.

The record on appeal also contains an order later entered in Nguyen's action against Colon on May 27, 2005, apparently as a result of Nguyen's motion to enforce the earlier judgment. The order recites that the judge held Colon and her counsel in contempt for failing to comply with the April 12, 2005 judgment; in addition, the order included, ...


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