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Nve Bank v. Ber-Loew Partnership and Christopher Durso

November 5, 2012

NVE BANK, PLAINTIFF-RESPONDENT,
v.
BER-LOEW PARTNERSHIP AND CHRISTOPHER DURSO, DEFENDANTS-RESPONDENTS.
RICHARD BERLOWE, APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Hudson County, Docket No. F-18303-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 24, 2012

Before Judges Espinosa and Guadagno.

Appellant Richard Berlowe appeals from the denial of his motion to intervene in a foreclosure action brought by plaintiff NVE Bank against defendants Ber-Loew Partnership and Christopher Durso. On appeal, Richard Berlowe also raises issues regarding the merits of the underlying foreclosure action. We affirm.

On June 10, 1985, Richard Berlowe, Harold Berlowe, Barbara Berko, and Warren Loewenstein*fn1 formed Ber-Loew Partnership (the Partnership) to invest in real estate. Pursuant to the partnership agreement, capital was "contributed in equal amounts by each partner," the "capital gains and losses of the

[P]artnership" were "shared equally among the partners," and each partner had an "equal voice in the conduct of the affairs of the business."

An amendment to the partnership agreement, dated June 13, 2000, named Harold Berlowe "the General Partner with the authority to bind the Partnership." Warren Loewenstein died in 1998 and Barbara Berko inherited his Partnership interest. The amendment was signed by the three remaining partners.

A partnership resolution dated March 8, 2006, and signed by all three partners, granted Harold Berlowe and Barbara Berko the power to:

[e]ndorse, assign, transfer, mortgage or pledge bills receivable, warehouse receipts, bills of lading, stocks, bonds, real estate or other property now owned or hereafter owned or acquired by the Partnership as security for sums borrowed, and to discount the same, unconditionally guarantee payment of all bills received, negotiated or discounted and to waive demand, presentment, protest, notice of protest and notice of non-payment.

The resolution indicated that the signatures of both Harold Berlowe and Barbara Berko were required to exercise these powers. Also on March 8, 2006, a commercial loan agreement for an $830,000 loan was signed between plaintiff, as lender, and 700 Bangs Avenue, LLC (700 Bangs), as borrower. Harold Berlowe, Barbara Berko, Christopher Durso, and Raul Menares signed the loan agreement on behalf of 700 Bangs. 700 Bangs also executed a promissory note in conjunction with the loan agreement.

To secure the 700 Bangs loan, the Partnership executed a guaranty signed by Harold Berlowe and Barbara Berko. On March 8, 2006, the Partnership also executed a mortgage in favor of plaintiff on property located at 255-257 Fourth Street in Hoboken. That mortgage was signed by Harold Berlowe and Barbara Berko on behalf of the Partnership. The mortgage was registered in the Hudson County Register of Deeds on March 27, 2006. A commercial debt modification agreement dated March 20, 2007, extended the maturity date of the $830,000 loan to March 10, 2008.

A partnership resolution of authority, dated December 12, 2007, authorized Harold Berlowe to "[b]orrow money on behalf and in the name of the Partnership, sign, execute and deliver promissory notes or other evidence of indebtedness." This resolution was signed by Harold Berlowe, Richard Berlowe, and Barbara Berko.

On December 12, 2007, plaintiff made a commercial loan of $1.2 million to 707 Bangs Avenue, LLC (707 Bangs). The loan agreement was executed by Harold Berlowe as the "Managing Member" of 707 Bangs Devco LLC, which, in turn, was the managing member of 707 Bangs. On that same date, 707 Bangs also signed a commercial promissory note.

To secure the repayment of this loan from plaintiff to 707 Bangs, Harold Berlowe, as the "Managing Partner" of the Partnership, executed a guaranty dated December 12, 2007. To secure this obligation, Harold Berlowe, on behalf of the Partnership, executed a mortgage in favor of plaintiff on property located at 907 Park Avenue in Hoboken. A second commercial debt modification ...


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