PER CURIAM.
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,
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.
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),
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:
We find insufficient merit in these arguments to warrant discussion in a written opinion.
We turn, first, to Felton's arguments regarding the jury trial because the jury's verdict governs the disposition of many of the remaining issues. We discern from her Point VI that Felton claims the judge erroneously instructed the jury because the burden of persuasion in proving an enforceable oral contract for the sale of real estate differs from the burden of persuasion applicable to written contracts. We gather that Felton believes the jury's finding that the parties entered into a contract does not necessarily discount the possibility that they entered into a different oral contract in the discussions preceding execution of the written contract. We find no error in the judge's explanation to the jury about the elements of an enforceable contract nor do we find there was any potential for confusion as to what the jury was asked to decide.
Felton's argument regarding the burden of persuasion also lacks merit. It appears that Felton argues that because the Statute of Frauds no longer insists upon a writing as a prerequisite to enforcing a contract to sell real property and allows for enforcement of an oral contract to sell real property when its terms are proven by clear and convincing evidence,
In Point VI, Felton also argues that the trial judge erroneously excluded testimony by mistakenly determining that it was inadmissible hearsay. The only ruling Felton has cited in this regard was the judge's determination, prior to trial, that Felton would not be permitted to testify about what was contained in an appraisal she had received on some earlier occasion. The judge's ruling on this point was correct, since the information she intended to convey was hearsay and Felton failed to cite to the trial judge (and has not cited to us) a hearsay exception that would have permitted the admission of that testimony. Moreover, the judge's ruling has not been shown to be an abuse of discretion.
With the jury's unimpeachable determination that the parties intended to enter into a contract of sale and that Zaman did not commit fraud in the inducement of the contract, Felton's arguments that the judge erred in failing to find during the bench trial phase that the transaction created an equitable mortgage or that Felton had a valid consumer fraud claim, as argued in Points III and V, must fall, a fortiori.
Felton's remaining arguments relate to her contentions that the contract of sale should not have been enforced as a matter of law and that she retained a right to rescind after the closing. As with her other arguments, these contentions deserve no extensive discussion in this opinion.
These conclusions also require a rejection of Point III, in which Felton argues that the judge erred in finding she did not timely cancel the contract. There is, in fact, no evidence that Felton attempted to cancel the contract within the three-day attorney-review period nor at any time prior to the closing itself. It was only after the closing that Felton attempted to rescind by sending Zaman an $85,983.65 cashier's check. The contract of sale did not provide Felton with a right to cancel after closing. Nor did the subsequent rental/repurchase agreement provide such a right. These were separate agreements; the contract of sale did not incorporate the terms of the subsequent rental/repurchase agreement. To be sure, the later agreement allowed Felton the right to buy the property from Zaman, but not for $85,983.65 or, for that matter, $200,000. The purchase price, if Felton opted to buy back the property was $237,000
We lastly mention Felton's Points VII and VIII, in which she argues the judge mistakenly dismissed her TILA and FFA claims. These contentions are without merit. Her contentions require that the court view the agreements as a single transaction that constituted either a "thinly disguised loan,"
Affirmed.