Unpublished Opinions for the Week of November 14, 2016

11-2-1782 Ahn v. Chae, N.J. Super. App. Div. (per curiam) (9 pp.) Defendants appealed from a judgment awarding $156,955 to plaintiff. Plaintiff alleged that one defendant induced her to enter into a service agreement and powers of attorney with the other defendant. The agreement provided that defendant would assist plaintiff with various financial matters including the collection of plaintiff’s alimony income. Plaintiff alleged conversion, misrepresentation, breach of fiduciary duties, fraud and unjust enrichment. Defendants answered plaintiff’s complaint but failed to respond to plaintiff’s discovery demands, and the trial court struck defendants’ answer without prejudice. Defendants finally provided some discovery responses; plaintiff contended that they were materially deficient and moved to strike defendants’ answer with prejudice. The trial court granted the motion. Defendants never moved to restore their answer, and the matter proceeded to a proof hearing on damages. Defendants appealed the damages judgment and argued that the trial court erred by allowing hearsay testimony from plaintiff. The court found that the trial court did not abuse its discretion in precluding cross-examination of plaintiff on liability because defendants had defaulted on liability and the trial judge was entitled to find plaintiff’s testimony credible.

15-2-1783 Indymac Venture Inc. v. Hemschot, N.J. Super. App. Div. (per curiam) (14 pp.) On Dec. 30, 2013, the Chancery Division granted summary judgment to plaintiff on its foreclosure complaint against the defendant. Defendant argued that the trial court improperly granted summary judgment because plaintiff failed to send a notice of intention to foreclose, as required by the Fair Foreclosure Act. Defendant also contended that the trial court erred in rejecting his equitable defendants and challenged the amount of the court’s final judgment based upon a mathematical error. The court of appeals affirmed, holding that the claim lacked merit, as the trial court correctly held that the act did not apply to defendant’s mortgage. The act’s purpose was to provide residential mortgage debtors “every opportunity to pay their home mortgages, and thus keep their homes.” N.J.S.A. 2A:50-54. Defendant did not live on the property during the construction period; he only moved to the property after he refused to roll the construction loan into a permanent one. The court of appeals concluded that the act’s purpose was not furthered if applied to defendant’s mortgage. Additionally, the construction loan had also matured when plaintiff filed its complaint; the act’s own terminology made the notice of intention inapplicable in this instance. However, the court of appeals remanded to correct the mathematical error; the plaintiff’s affidavit of amount due did not support the trial court’s final judgment. Accordingly, the trial court’s order was affirmed in part and vacated in part.