Filed: Mar. 04, 2016
Latest Update: Mar. 04, 2016
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant Barbara Felton was facing foreclosure proceedings on her Cream Ridge property when she entered into a transaction with plaintiff Tahir Zaman that forms the basis for this action. Numerous claims and theories were asserted, and the trial judge bifurcated the trial. A jury first determined Felton knowingly sold the Cream Ridge property to Zaman, and the trial judge later made findings by which he rejected
Summary: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION PER CURIAM . Defendant Barbara Felton was facing foreclosure proceedings on her Cream Ridge property when she entered into a transaction with plaintiff Tahir Zaman that forms the basis for this action. Numerous claims and theories were asserted, and the trial judge bifurcated the trial. A jury first determined Felton knowingly sold the Cream Ridge property to Zaman, and the trial judge later made findings by which he rejected ..
More
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Barbara Felton was facing foreclosure proceedings on her Cream Ridge property when she entered into a transaction with plaintiff Tahir Zaman that forms the basis for this action. Numerous claims and theories were asserted, and the trial judge bifurcated the trial. A jury first determined Felton knowingly sold the Cream Ridge property to Zaman, and the trial judge later made findings by which he rejected Felton's remaining claims, including her claim to an equitable mortgage. We affirmed in all respects. Zaman v. Felton, No. A-3976-11 (App. Div. Jan. 9, 2013).
The Supreme Court granted certification and affirmed in part and reversed in part. Zaman v. Felton, 219 N.J. 199 (2014). As relevant here, the Court: reversed our affirmance of the dismissal of Felton's claim that "the parties' agreements constituted a single transaction that gave rise to an equitable mortgage"; adopted the eight-factor standard set forth in O'Brien v. Cleveland, 423 B.R. 477, 491 (Bankr. D.N.J. 2010); and remanded to the trial court for that standard's application to this case. Zaman, supra, 219 N.J. at 205. Specifically, the Court directed the trial judge to make findings
addressing each of the eight factors that comprise the O'Brien test. Because the parties presented extensive evidence at trial regarding Felton's financial situation, the parties' respective experiences with land sale transactions, their negotiations, their statements about their intent to enter into the transactions, the terms of each agreement, and the conduct of each party following closing, the trial court's findings on remand may be based upon the existing record, without the need for further testimony.
[Id. at 218-19 (emphasis added).]
The Court's mandate issued on September 9, 2014, and the trial judge rendered his written findings on October 4, 2014, without prior notice to the parties. The judge thoroughly described his application of O'Brien and how he weighed each of the eight factors; he concluded Felton was not entitled to an equitable mortgage.
Felton moved for an order vacating the trial judge's decision and for designation of another judge because, in her view, the trial judge "demonstrated that his mind is so firmly made up . . . that he cannot fairly try the issues." In his supporting certification, Felton's counsel asserted that he had no notice that the trial judge would render a decision until he received the decision and that he "expected" instead "to receive a notice of a trial date." The Assignment Judge, to whom this motion was addressed, wrote counsel to advise there was no reason for his intercession and that the motion, or any other motion for reconsideration or recusal, should be brought to the trial judge. At or about the same time, Zaman moved to strike the notices of lis pendens in light of the trial judge's October 4 decision.
On the return date of these motions, Felton argued she had a right to be heard prior to the issuance of any post-remand decision; she also claimed the judge should have reached a contrary conclusion on the merits. The judge fully considered all Felton's arguments and, at the conclusion of this February 6, 2015 proceeding, denied Felton's application for reasons comprehensively outlined in an oral opinion. A few days later — and at a subsequent hearing approximately a month after that — the judge heard argument and granted Zaman's motion to discharge all notices of lis pendens.
Felton appeals, arguing the trial judge failed to comply with the Supreme Court's mandate and failed to properly analyze the O'Brien factors. She also argues the judge's decision was inconsistent with the requirements of Rule 1:7-4, that the judge's factual and legal conclusions "were wrong," and that she was denied due process because the judge issued his decision without notice and because the judge refused to recuse himself. We find insufficient merit in all Felton's arguments to warrant further discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm the disposition of the equitable mortgage claim substantially for the reasons set forth by the trial judge in his thorough and well-reasoned October 4, 2014 written decision.
We would add only that the Supreme Court's mandate did not require that the trial judge seek or receive any additional evidence or, for that matter, that he hear further argument from the parties' attorneys regarding application of the O'Brien test to the existing evidence. Even if the better practice would have been for the judge to allow the parties to be heard prior to rendering his decision, the judge afforded Felton that opportunity when she moved for reconsideration.
Affirmed.
