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Tahir Zaman v. Barbara Felton and Mr. Felton

January 9, 2013

TAHIR ZAMAN, PLAINTIFF-RESPONDENT,
v.
BARBARA FELTON AND MR. FELTON, HER HUSBAND,*FN1 DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-4301-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 18, 2012 -

Before Judges Fisher, Waugh and St. John.

The parties' disputes about defendant Barbara Felton's transfer of real property to plaintiff Tahir Zaman were resolved in two phases -- a jury trial of some and a bench trial of the remainder of the issues presented. After careful consideration, we reject Felton's arguments regarding the sufficiency of the jury instructions during the first phase, as well as her numerous arguments regarding the judge's disposition of the second phase's non-jury issues.

Felton was the owner of real property in Cream Ridge,*fn2 which was encumbered by a mortgage on which she owed approximately $100,000.*fn3 In default on the mortgage and facing foreclosure, Felton contracted, on June 16, 2007, to sell the property to Zaman for $200,000. The closing was scheduled to occur on June 29, 2007, but the pressure of the foreclosure proceedings caused the advancing of the closing date to Saturday, June 23, 2007. At closing, Zaman paid Felton $85,960 -- assumed to be the difference between the purchase price and the amount needed to extinguish the mortgage. On June 23, the parties also entered into another contract, which permitted Felton to rent the property for $2000 per month, while granting her an option to purchase the property from Zaman for $237,000, no later than September 29, 2007.

In the days that followed, Zaman attempted to pay off the mortgage, while Felton attempted to rescind the transaction by returning the funds she received from Zaman at closing. Zaman claims he could not pay off the mortgage because Felton represented to the mortgagee that she was still the owner. Zaman also refused to negotiate the $85,983.65 check Felton sent him.*fn4

Because Felton's representations to the mortgagee prevented Zaman's satisfaction of the mortgage, the foreclosure proceedings continued. When a sheriff's sale was scheduled a few months after the closing, Zaman applied for an order to show cause in the foreclosure action pending against Felton. The record on appeal does not contain any order or orders entered at that time, but the record reveals that Zaman was permitted to pay off the mortgage in January 2008, thereby bringing an end to the foreclosure action.

Zaman commenced this action in December 2008, seeking possession of the property. He alleged that Felton had neither sought to repurchase pursuant to the option granted on June 23, 2007, nor had she vacated the property. In response, Felton filed a four-count counterclaim, alleging: fraud; slander of title; consumer fraud; and violations of the New Jersey Fair Foreclosure Act (FFA), N.J.S.A. 2A:50-53 to -68, and the Federal Truth In Lending Act (TILA), 15 U.S.C.A. § 1601 to § 1667. A five-day jury trial in November and December 2011, concluded with the jury's determination that Felton knowingly agreed to sell the property to Zaman, rejecting her claims that the June 2007 transactions constituted a thinly-disguised loan agreement or that she was defrauded.

Following a denial of Felton's motion for judgment notwithstanding the verdict or new trial in December 2011, and a denial of her subsequent motion for a directed verdict on the remaining issues in February 2012, the judge conducted a two-day bench trial in March 2012. On March 29, 2012, the judge rendered an oral opinion and entered judgment in Zaman's favor on both his complaint and Felton's counterclaim.

In this appeal, Felton argues:

I. THE TRIAL COURT ERRED BY REFUSING TO ENFORCE THE REQUIREMENTS OF OPINION 26[*fn5 ].

II. THE TRIAL COURT ERRED BY NOT DISMISSING THE COMPLAINT BECAUSE PLAINTIFF VIOLATED THE LAW.

III. THE TRIAL COURT ERRED BY NOT FINDING THE TRANSACTION CREATED AN ...


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