CAM TRUST v. REVERE HIGH YIELD FUND, LP

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1250-17T3

CAM TRUST, a New Jersey Trust,

          Plaintiff- Respondent,

v.

REVERE HIGH YIELD FUND, LP,
a Delaware Limited Partnership,

     Defendant-Appellant.
_____________________________

                    Argued October 29, 2018 – Decided November 7, 2018

                    Before Judges Haas and Sumners.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Ocean County, Docket No. L-2558-16.

                    Malcolm S. Gould argued the cause for appellant
                    (Silverang Donohoe Rosenzweig & Haltzman, LLC,
                    attorneys; Malcolm S. Gould, on the brief).

                    Shawn D. Edwards argued the cause for respondent
                    (Maselli Warren, PC, attorneys; Shawn D. Edwards, of
                    counsel and on the brief).

PER CURIAM
      Defendant Revere High Yield Fund, LP appeals from the Law Division's

September 29, 2017 orders granting plaintiff CAM Trust's motion for summary

judgment, denying defendant's cross-motion for summary judgment, and

ordering defendant to pay plaintiff $102,920.26 it collected in violation of a

modification of a commercial loan negotiated by the parties. We affirm.

      The material facts of this case are fully detailed in Judge Mark A.

Troncone's comprehensive written decision. Therefore, we recite only the most

salient facts from that decision and, like Judge Troncone, view them in the light

most favorable to defendant, the non-moving party. Polzo v. Cnty. of Essex,

 209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 523 (1995)).

      On December 4, 2014, plaintiff executed and delivered a Term Note and

Term Loan and Security Agreement (the Term Loan or loan) to defendant to

evidence a loan in the principal amount of $3.5 million.        The Term Loan

provided for monthly payments of interest only, with a maturity date of March

30, 2016. Interest was set at 12% per year. To secure the loan, plaintiff executed

and delivered mortgages on four properties, including one property in

Lambertville and another in Barnegat. The Term Loan further provided that




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plaintiff could extend the maturity date to June 30, 2016 if it met the conditions

set forth in the loan documents.

      With particular relevance to the issues involved in the present appeal,

Section 8.01(a) of the Term Loan provided that if plaintiff failed to make a

monthly payment within five days of its due date, this would constitute a default

of its obligations. In the event of a default, Sections 1.01 and 2.08 of the Term

Loan permitted defendant to charge "default interest" on the principal balance

at the "default rate" of 24% per year. In addition, Section 10.09 stated in

pertinent part that

             [n]o modification, amendment or waiver of any
             provision of [the Term Loan] shall in any event be
             effective unless the same shall be in writing and signed
             by [defendant] and then such waiver or consent shall be
             effective only in the specific instance and for the
             purpose for which given.

      Plaintiff did not make timely interest payments on the Term Loan in

January, February, and March 2016. On January 19, 2016, plaintiff agreed to

sell the Lambertville property.      In that same month, it also received a

commitment to refinance a portion of the Term Loan. Plaintiff then advised

defendant that it intended to use the funds from these transactions to pay off the

entire balance of the loan. On February 29, 2016, defendant gave plaintiff a

written payoff statement. This statement calculated interest at the 12% non -

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                                        3
default interest rate, and did not charge plaintiff for any default interest at the

24% default rate.

      On March 10, 2016, plaintiff completed the refinance and paid $2.1

million to defendant. Defendant accepted the payment and discharged the

mortgage it had been holding on the Barnegat property. However, defendant did

not apply the $2.1 million in accordance with the terms of its February 29 payoff

statement. Instead, defendant recalculated past due interest to include default

interest at the 24% rate and applied $70,000 of the payment to default interest

that allegedly accrued in January and February instead of applying it to the Term

Loan balance. Plaintiff protested defendant's imposition of the default interest.

      On April 6, 2016, the parties' representatives, including defendant's vice

president, Michael Giannone, and plaintiff's trustee, Louis Mercatanti,

participated in a telephone conference call to resolve the dispute. On that date ,

Giannone sent the following email to Mercatanti and Kenneth Zeng, another of

plaintiff's representatives:

             Gentlemen,

             Per our discussion, [defendant] is willing to put off the
             accrued default interest owed until the loan is repaid in
             full. You will continue to pay us monthly interest
             payments on the loan balance assumed no accrued
             interest was applied at the time of the loan pay down.
             If the loan at any time is in default again between now

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            and the maturity date of June 30, 2016, you will be
            responsible for the accrued default interest. If you pay
            [defendant] off with no further default [defendant] will
            agree to waive such accrued default interest at such
            time.

            Thank you

            Mike Giannone
            Vice President
            Revere Capital

      Three minutes later, Mercatanti responded by email, and stated:

            Thanks Mike, look forward to getting this loan repaid
            asap.
            Lou

      Later that afternoon, Giannone sent Mercatanti and Zeng a second email

confirming the terms of the resolution. In pertinent part, this email stated:

            Per our discussion, due to lack of payment, starting
            January 1, 2016, your loan in the amount of [$3.5
            million] was placed in default. According to the loan
            docs, the default interest rate is set at 24%, resulting in
            $140,000 in accrued default interest between January
            2016 and the time a principal pay down on March 10,
            2016, at which time [defendant] applied the principal
            pay down to $70,000 of accrued interest and $7000 in
            late fees before being applied to the principal balance,
            resulting in a loan balance of [$1.477 million] on
            3/10/16.

            [Defendant] has agreed to delay the $70,000 accrued
            default interest payment until the loan maturity date of
            June 30, 2016. If at any time the loan, during the
            forbearance period, goes into default as a result of

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                                        5
            either non-payment, maturity, or any other covenants
            described in the loan documents, [defendant] will
            require that the $70,000 be paid in full in addition to
            accrued interest on the $70,000 at 12%. If the loan is
            repaid between now and the June 30th maturity date
            with no default in any way, [defendant] is willing to
            forgive that $70,000 default interest payment.

After the parties' exchange of emails, plaintiff paid interest on the Term Loan at

the non-default rate on the principal balance. It did not default on the loan in

any way.

      Although neither of his April 6, 2016 emails say this, Giannone later

claimed in a certification that he "never intended [his April 6 email] to be [a]

final and binding modification of the Term Loan." Instead, he asserted that he

intended that the "proposed terms" set forth in the emails "could form the basis

of a formal written forbearance agreement that could later be drawn up, reviewed

by counsel and - if acceptable - signed by the parties." He explained that "[t]his

is how this type of commercial transaction is handled in . . . the ordinary

course[.]" However, Giannone never expressed this "intent" to either Mercatanti

or Zeng.    Although the parties later exchanged drafts of a more formal

forbearance agreement, they never agreed upon the language. And, in any event,

plaintiff complied with the terms set forth in Giannone's April 6 emails.




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      In order to close out the loan, plaintiff proceeded with the sale of the

Lambertville property. In response to a request by plaintiff, defendant sent it a

payoff statement on May 19, 2016. Contrary to the representations set forth in

Giannone's April 6 emails, the statement included $109,377.33 for default

interest, and credited $70,000 from plaintiff's prior $2.1 million payment toward

the principal balance against the default interest. Defendant now claimed that

plaintiff owed $1,599,308, rather than $1,489,387.74,1 on the principal balance.

      Plaintiff objected to paying that amount, but defendant refused to

discharge the Lambertville mortgage in order to enable plaintiff to sell the

property. On May 25, 2016, the Chancery Division denied plaintiff's motion for

a declaration that it did not owe the default interest, without prejudice to its right

to seek to recover any default interest paid to defendant at the closing. Plai ntiff

then sold the Lambertville property and paid defendant the payoff balance,

including the disputed default interest.

      As a result of this payment, plaintiff alleged that defendant received

$102,920.26 more than it should have received after the parties' April 6

agreement. It filed a one-count complaint against defendant, and asserted that



11
   This balance included the prior $1.477 million balance, plus $12,387.74 in
interest accruing at the 12% non-default rate.
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                                           7
defendant breached the parties' agreement that all default interest would be

waived if plaintiff committed no further defaults and paid the principal balance

by June 30, 2016. Following discovery, both parties filed motions for summary

judgment.

      On September 29, 2017, Judge Troncone granted plaintiff's motion, and

denied defendant's cross-motion. In his thorough written decision, the judge

explained that he found

            no genuine disputes as to the material facts in this case.
            Plaintiff missed three loan payments, the parties
            exchanged emails indicating the default interest would
            not accrue if the new conditions set forth were met,
            [p]laintiff upheld its end of the agreement by paying off
            the loan, [d]efendant breached the terms of the email
            communication by requiring default interest, and
            [p]laintiff incurred monetary losses as a result. The
            [c]ourt finds the April 6, 2016 emails constitute a
            writing in light of the modern trend of New Jersey
            [c]ourts to recognize[] electronic communications as
            writings. The [c]ourt is further satisfied the email
            signature of Mr. Giannone constituted a signature by
            the lender as required in the Term Loan. Thus, the
            emails did constitute an effective modification of the
            Term Loan Agreement. The facts clearly demonstrate
            [d]efendant breached the terms of that modification.

      Judge Troncone also concluded that the emails were sufficient to meet the

requirements of the Statute of Frauds under  N.J.S.A. 25:1-5.             This appeal

followed.


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      On appeal, defendant argues that summary judgment was inappropriate

because there was "a genuine issue of material fact existed as to whether the

emails relied upon [by] plaintiff constituted a final, agreed, executed, extension

and modification of the existing loan documents." Defendant also alleges that

the email exchange: was insufficient "to form an agreement to modify and

extend the fully executed and integrated loan documents"; violated the Statute

of Frauds; and did not contain sufficient consideration to support a valid

contract.

      Our review of a ruling on summary judgment is de novo, applying the

same standard as the trial court, namely, the standard set forth in Rule 4:46-2(c).

Conley v. Guerrero,  228 N.J. 339, 346 (2017). Thus, we consider, as the trial

judge did, whether "the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Town of Kearny v. Brandt,  214 N.J. 76, 91 (2013) (quoting

Brill,  142 N.J. at 540). If there is no genuine issue of material fact, we must

then "decide whether the trial court correctly interpreted the law." Massachi v.

AHL Servs., Inc.,  396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential

Prop. & Cas. Co. v. Boylan,  307 N.J. Super. 162, 167 (App. Div. 1998)). We


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accord no deference to the trial judge's conclusions on issues of law and review

issues of law de novo. Nicholas v. Mynster,  213 N.J. 463, 478 (2013).

      Having considered defendant's contentions in light of the record and

applicable legal principles, we are satisfied that Judge Troncone properly

granted summary judgment to plaintiff and affirm substantially for the reasons

expressed in his September 29, 2017 written opinion. We add the following

comments.

      It is well established that

            "[a] contract arises from offer and acceptance, and must
            be sufficiently definite 'that the performance to be
            rendered by each party can be ascertained with
            reasonable certainty.'" Weichert Co. Realtors v. Ryan,
             128 N.J. 427, 435 (1992) (quoting West Caldwell v.
            Caldwell,  26 N.J. 9, 24-25 (1958)). "A written contract
            is formed when there is a 'meeting of the minds'
            between the parties evidenced by a written offer and an
            unconditional, written acceptance."        Morton v. 4
            Orchard Land Trust,  180 N.J. 118, 129-30 (2004)
            (quoting Johnson & Johnson v. Charmley Drug Co., 11
            N.J. 526, 538-39 (1953)).

            [Cumberland Farms, Inc. v. New Jersey Dep't of Envtl.
            Prot.,  447 N.J. Super. 423, 439 (App. Div. 2016).]

      After forming a contract, the parties "may by mutual assent, modify it."

Cnty. of Morris v. Fauver,  153 N.J. 80, 99 (1998) (citing Bohlinger v. Ward &

Co.,  34 N.J. Super. 583, 587 (App. Div. 1955)). "A modification can be proved


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                                      10
by 'an explicit agreement to modify or by the actions and conduct of the parties

as long as the intention to modify is mutual and clear.'" Wells Reit II-80 Park

Plaza, LLC v. Dir. Div. of Taxation,  414 N.J. Super. 453, 466 (App. Div. 2010)

(quoting DeAngelis v. Rose,  320 N.J. Super. 263, 280 (App. Div. 1999)). Parties

to a contract may orally agree to modify contract provisions, even when the

original agreement precludes oral modifications. Sodora v. Sodora,  338 N.J.

Super. 308, 312 (Ch. Civ. 2000).

      Applying these principles, we conclude that Judge Troncone correctly

determined that the parties agreed that defendant would waive default interest if

plaintiff committed no further defaults and paid off the loan by June 30, 2016.

These were the specific terms set forth in Giannone's first email on April 6, and

Mercatanti unequivocally accepted them in his reply email three minutes later.

Thereafter, Giannone sent a second email confirming that the default interest

had been waived, as indicated in the revised payoff figure for the principal

balance. It is also undisputed that plaintiff thereafter made its payments on time,

thus avoiding any further defaults. Under these circumstances, the April 6

modification was clearly enforceable.

      The judge correctly rejected defendant's contention that the modification

was not valid because it was not "in writing" and "signed" as required in the


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Term Loan, and by the Statute of Frauds. Here, Giannone and Mercatanti sent

each other emails which, when printed, were clearly "writings." Giannone ended

his email by typing his name, title, and contact information, with Mercatanti

closing his with the less formal "Lou."

      There is no doubt that both Giannone and Mercatanti had full authority to

negotiate and consummate the resolution embodied in their email exchange.

While it is true that neither party actually "signed" a separate written document

embodying the terms set forth in the emails, to conclude that no modification

occurred based on this omission amounts to exalting form over substance. See

Historic Smithville Dev. Co. v. Chelsea Title & Guar. Co.,  184 N.J. Super. 282,

293 (Ch. Div. 1981) (holding that a court will look "to get at the substance of

things, and to ascertain, uphold, and enforce rights and duties which spring from

the 'real' relations of the parties. It will never suffer the mere appearance and

external form to conceal the true purposes, objects, and consequences of a

transaction"), aff'd,  190 N.J. Super. 567 (App. Div. 1983). 2



2
   For these same reasons, we also reject defendant's Statute of Frauds
contention. Under  N.J.S.A. 25:1-5(f) and (g), contracts "to loan money" and
"agreement[s] by a creditor to forbear from exercising remedies pursuant to a
contract" are required to be in writing. As discussed above, however, the emails
exchanged by the parties constituted the "writing" necessary to meet this
requirement.
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      Defendant also argues that summary judgment was inappropriate because

the judge failed to consider Giannone's claim that he intended that the

modification embodied in the April 6 email exchange would not become "final"

until after the parties negotiated and signed a separate, written forbearance

agreement. We disagree.

      "A contracting party is bound by the apparent intention he or she

outwardly manifests to the other party. It is immaterial that he or she has a

different, secret intention from that outwardly manifested." Cumberland Farms,

 447 N.J. Super. at 440 (quoting Hagrish v. Olson,  254 N.J. Super. 133, 138

(App. Div. 1992)). Neither of Giannone's April 6 emails conditioned the waiver

of the default interest on the parties subsequently reducing its terms to writing

in a separate document. Instead, the emails clearly state that defendant would

waive the default interest if plaintiff had no further defaults and paid off the

loan. As noted above, plaintiff met both of those requirements.

      Finally, defendant argues for the first time on appeal that there was no

consideration to support the agreement waiving the default interest. However,

we normally "decline to consider questions or issues not properly presented to

the trial court when an opportunity for such a presentation is available 'unless

the questions so raised on appeal go to the jurisdiction of the trial court or


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                                      13
concern matters of great public interest.'" Nieder v. Royal Indem. Ins. Co.,  62 N.J. 229, 234 (1973) (quoting Reynolds Offset Co., Inc. v. Summer,  58 N.J.

Super. 542, 548 (App. Div. 1959)). Neither of those exceptions applies to this

case.

        In any event, "[a]ny consideration for a modification, however

insignificant, satisfies the requirement of new and independent consideration."

Oscar v. Simeonidis,  352 N.J. Super. 476, 485 (App. Div. 2002). Thus, "[i]f the

consideration requirement is met, there is no additional requirement of gain or

benefit to the promisor, loss or detriment to the promisee, equivalence in the

values exchanged, or mutuality of obligation." Ibid. (quoting Shebar v. Sanyo

Bus. Sys. Corp.,  111 N.J. 276, 289 (1988)).

        Defendant's argument that consideration was lacking ignores the fact that

after it attempted to impose default interest in March 2016, the parties were

poised for litigation. From the prompt manner in which both parties addressed

the dispute thereafter, it is clear that each wanted to expeditiously resolve the

matter so they could continue to enjoy the benefits of their business relationship.

The modification enabled them to do that while avoiding the time and expense,

for the time being, of litigation. Thus, there was sufficient consideration to

support the formation of a contract.


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Affirmed.




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            15