NOT FOR PUBLICATION WITHOUT THE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-0392-19T4






                   Submitted September 29, 2020 – Decided October 8, 2020

                   Before Judges Sabatino and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Bergen County, Docket No. C-

                   The Basil Law Group, PC, attorneys for appellants
                   (Robert J. Basil and David A. Cohen, on the briefs).
            Robert P. Travers, attorney for respondents Edgewater
            880 Associates, LLC, 880 River Road Associates, Fred
            A. Diabes, Danny Daibes and RE Global Consulting.

            Respondents Mariner's Bank and Paul Keating have not
            filed a brief.


      This appeal involves a dispute over the allocation of a $852,100 deposit a

buyer made in connection with a commercial real estate sale that failed to close.

The buyer was unable to obtain financing to make the purchase, and the seller

sought to retain the deposit as liquidated damages for the buyer's breach.

      After an evidentiary hearing, the Chancery judge determined that the

buyer had not acted in good faith, causing the court and the seller to continue to

believe for nearly a month that a mortgage commitment was still in place when,

in fact, the commitment had already lapsed or been withdrawn.                Upon

considering the testimony of competing expert appraisers, the judge found the

subject property was worth significantly less than the contractual sale price.

Accordingly, the judge allocated $736,900 of the deposit to the seller to

compensate it for the loss of the benefit of the bargain, and ordered the $115,200

remainder to be returned to the buyer.

      The buyer now appeals, arguing the judge's findings are erroneous and

that it is entitled to a return of the full amount of the deposit. For the reasons

that follow, we affirm the judge's decision.


      In December 2016, plaintiff Seven Star Properties, LLC ("Seven Star")

and its principals entered into an agreement with defendant Edgewater 880

Associates, LLC ("Edgewater 880") for the exchange and sale of two properties.1

In particular, the original agreement contemplated the sale of property in

Tenafly owned by Seven Star in exchange for the sale of the property that

Edgewater 880 owned in Edgewater.

      The Edgewater property, which is the parcel at issue in this dispute, is a

mixed-use structure built in the 1980s. It contains approximately 11,300 square

feet of retail space and 10,800 square feet of office space.

      Under the terms of the original agreement, Edgewater 880 agreed to

purchase the Tenafly property for $2,200,000, and Seven Star reciprocally

agreed to purchase the Edgewater property from Edgewater 880 for $8,521,000,

with the $2,200,000 proceeds from the sale of the Tenafly property applying to

  We have omitted for conciseness the names of the persons and business entities
in the caption respectively associated with plaintiff Seven Star and defendant
Edgewater 880.
the $8,521,000 purchase price of the Edgewater property. Although the original

agreement stated that the "Parties" each would deposit with an escrow agent the

sum of $852,100, it appears that Seven Star was the only party to pay this

deposit.2   The $852,100 sum corresponds to ten percent of the Edgewater

property's sale price.

      The original agreement contained various provisions pertinent to our

analysis, including a Mortgage Contingency Clause, paragraph 22, and a

Liquidated Damages Clause, paragraph 18. The Mortgage Contingency Clause

recites, in pertinent part:

             (a) The obligation of Purchaser to purchase under this
             Contract is conditioned upon issuance, on or before 45
             days after a fully executed copy of this Contract is
             given to Purchaser or Purchaser's attorney, of a written
             commitment from an Institutional Lender pursuant to
             which such Institutional Lender agrees to make a first
             mortgage loan, other than a VA, FHA or other
             governmentally insured loan, to Purchaser, at
             Purchaser's sole cost and expense, of $4,771,000 for a
             term of at least 15/30 years (or such lesser sum or
             shorter term as Purchaser shall be willing to accept) at
             the prevailing fixed or adjustable rate of interest and on
             other     customary      commitment         terms     (the
             "Commitment"). To the extent a Commitment is

  The original agreement refers to "Parties" with a capitalized "P," and therefore
a presumably defined term, but never defines it, so it is unclear which entity or
entities the term "Parties" refers to. In addition, the contract variously refers at
times to "Purchaser" and "Buyer" in both the singular and plural. These
inconsistencies of wording do not affect our analysis.
            conditioned on payment of any outstanding debt, no
            material adverse change in Purchaser's financial
            condition or any other customary conditions, Purchaser
            accepts the risk that such conditions may not be met;
            however, a commitment conditioned on the
            Institutional Lender's approval of an appraisal shall not
            be deemed a "Commitment" hereunder until an
            appraisal is approved (and if that does not occur before
            the Commitment Date, Purchaser may cancel under
            [sic] unless the Commitment Date is extended).
            Purchaser's obligations hereunder are conditioned only
            on issuance of a Commitment. Once a Commitment is
            issued, Purchaser is bound under this Contract even if
            the lender fails or refuses to fund the loan for any

            [(Emphasis added).]

The Mortgage Contingency Clause further addresses in section (h) the

consequences of the buyer's failure to secure a mortgage:

            (h) There shall be no automatic waiver of the mortgage
            contingency clause. If at the conclusion of the
            mortgage contingency period (as may be extended by
            mutual agreement), Buyer has not obtained a mortgage
            commitment, then either party shall be permitted to
            cancel this contract or Buyer may waive the
            contingency and proceed to closing. If [the] mortgage
            commitment is withdrawn or contains conditions that
            the Buyers, in good faith, are not able to meet or is
            subsequently retracted by the Lender through no fault
            of the Buyers, the mortgage contingency clause shall be
            deemed unsatisfied and Buyer may cancel the Contract
            of Sale with a return of all deposit monies.

            [(Emphasis added).]

      In a separate paragraph of the original agreement, the Liquidated Damages

Clause provides:

            (a) If either Purchaser shall default in the performance
            of any of its obligations hereunder, Parties shall have
            the right, as its sole and exclusive remedy, to receive
            and retain the Deposit, as and for liquidated damages,
            it being the understanding and agreement of the parties
            hereto that the actual damages, costs, and expenses
            sustained by Parties in the event of no closing are
            difficult, if not impossible, to ascertain, and that the
            amount of the Deposit is reasonable.

            [(Emphasis added).]

      It is undisputed that Seven Star paid the deposit sometime after execution

of the contract in December 2016 and before March 2017.           According to

Edgewater 880, it terminated the original agreement in February 2017 because

Seven Star had failed to secure financing in the allotted time.

      Thereafter, in March 2017, Seven Star and a related entity filed an action

in the Chancery Division against Edgewater 880 and related entities, seeking a

declaratory judgment and specific performance concerning the agreement.

Seven Star alleged that Edgewater 880 and its related entities had committed an

anticipatory repudiation of the original agreement, by allegedly terminating the

original agreement prematurely before the expiration period specified in the

Mortgage Contingency Clause.

      Edgewater 880 and its related parties denied having cancelled the contract

prematurely. Meanwhile, the trial court dismissed certain "bank co-defendants"

that Seven Star had named in the lawsuit, because there was no evidence those

bank defendants ever had made an enforceable written loan commitment to

Seven Star.3

      Following negotiations between the parties, Seven Star moved to compel

an alleged settlement. After Edgewater 880 filed opposition, the trial court

scheduled a plenary hearing to ascertain whether a settlement had, in fact, been


      On September 14, 2018, the attorney who was then representing Seven

Star in the litigation, 4 sent a letter to the trial judge detailing the witnesses to

appear in the upcoming plenary hearing. The letter from counsel specifically

asserted that Seven Star is "ready, willing and able to close title in accordance

with the underlying contract." The letter further asserted that Seven Star has

  Seven Star does not contest on appeal the trial court's dismissal of the bank
  Seven Star substituted a different litigation attorney in December 2018, and
he is now representing Seven Star on this appeal.

"been holding a $5.4 million commercial mortgage commitment from Woori

American Bank." 5

      On October 9, 2018, the plenary hearing commenced to address whether

a settlement had been reached between the parties. While the parties convened

in the judge's chambers during a recess, a settlement agreement was reached.

The settlement, in essence, involved eliminating the "swap" for the Tenafly

property and instead having Edgewater 880 take back a $2.2 million second

mortgage on the sale of the Edgewater parcel. Certain terms of the settlement

were then orally placed on the record in open court and later memorialized in a

November 14, 2018 order.

      The November 14, 2018 order reflects these agreed-upon revised terms:

            Plaintiff, Seven Star Properties, LLC, will purchase and
            the Edgewater 880 Associates, LLC ("Defendant"), will
            sell the subject property known as 880 River Road,
            Edgewater, New Jersey, for $8,521,000.00 ("Purchase
            Price"). Edgewater 880 Associates, LLC, will provide
            a $2,200,000.00 loan secured by a note ("Note") and
            mortgage ("Second Mortgage") to Plaintiff, Seven Star
            Properties, LLC, as part of the Purchase Price. . . .
            There shall be no prepayment penalty and the sale of
            the property is "As Is" subject to the existing tenants.

  Woori American Bank is a separate entity from the bank defendants and is not
a party to this action.
      After the settlement was placed orally on the record on October 9,

Edgewater 880 and its real estate professionals took steps to prepare for the

anticipated closing. Among other things, Edgewater 880 obtained engineering

surveys and prepared a subdivision map and legal descriptions, proposed interest

rate and payment calculations for the second mortgage it was extending,

provided the buyer with updated rent rolls for the property's tenants, and

obtained "estoppel letters" from various tenants. Between October 17 and

November 19, a paralegal with Edgewater 880's law firm sent emails on nearly

a daily basis to Seven Star's litigation attorney or its separate real estate attorney,

prodding them to move the transaction forward. During this time Seven Star

gave no indication of any problem with the first mortgage commitment.

      Ultimately, on November 19, the seller's paralegal requested "ASAP" a

copy of the mortgage commitment from Seven Star's real estate attorney. In a

responding email later that day, Seven Star informed Edgewater 880, for the first

time, that "we don't have it [the mortgage commitment] yet." Incredulous, the

paralegal asked in a responding email, "How are we going to close on the 30th

[of November]? What bank is your client getting a mortgage from?" The

paralegal also reminded Seven Star's real estate attorney that Seven Star had

"made numerous representations to [her] office and the Court that they already

have a mortgage commitment." The Seven Star real estate attorney tersely

responded by email on November 20, "They did have one but it obviously


      Following these revelations, Edgewater 880 sought the court's

intervention. On December 5, Seven Star's real estate attorney sent a letter to

the judge and provided this explanation:

            Pending the litigation, the loan had expired and upon
            notice to close on this matter we contacted the previous
            lender but was not able to continue with the loan when
            we delivered updated information. The purchaser is
            now working with two lenders who have completed the
            appraisal and are advising us that we can close this
            matter sometime in January.

      At an ensuing December 7 case management conference, the judge

inquired as to whether Seven Star was ready, willing, and able to close on the

purchase. Seven Star's litigation attorney responded to the judge as follows:

            COUNSEL: We were, we were [ready to close]. The
            lender pulled out at the last minute, we have no control
            over that, Judge.

            THE COURT: Yeah but you knew that – you knew that
            at the end of October, right?

            COUNSEL: We certainly knew it at the end of October
            and the minute we got that inkling, we processed two
            applications with Pacific Bank and Sheehan [sic] Bank
            and pursued to refill Lori's [sic] role.

            [(Emphasis added).]

      On January 2, 2019, the trial court entered an order placing the $852,100

deposit into the trust account of counsel for Edgewater 880, and directing Seven

Star to close on the purchase of the Edgewater property on or before January 15,

2019. The order also stated that Seven Star would be in breach of the settlement

agreement should it fail to close on or before that extended deadline of January

15, and its right to purchase the property would be "declared null and void." The

order further allowed Edgewater 880 to "make an application to the Court to

apply all or some portion of the deposit of $852,100.00 as damages."

      Seven Star did not obtain a first mortgage commitment by January 15,

2019, and thus did not close the transaction, in breach of the parties' agreement.

      Both parties then made applications to receive the deposit proceeds being

held in escrow. In support of its application, Seven Star submitted an appraisal

report which concluded that, as of December 4, 2018, the Edgewater property

had a fair market value of $8,525,000, a figure slightly above the contract price.

In opposition, Edgewater 880 submitted an appraisal report which concluded

that as of February 19, 2019, the fair market value of the Edgewater property

was only $6,550,000, far below the contract price. According to Edgewater

880's expert, the decreased fair market value appears to be attributable to "six

broken windows as well as water damage in the interior of the Property."

      The trial court scheduled a plenary hearing "limited to the testimony" of

the two appraisers. The court held that plenary hearing on May 22, 2019, and

the parties thereafter submitted post-hearing briefs.

      On August 28, 2019, the trial court issued an oral decision that is the

subject of this appeal. The oral decision contains several key findings that are

pertinent to the present appeal:

            • [T]his Court finds that the parties' agreement and
              settlement contemplated that provisions of the sale
              agreement, including the liquidated damages
              provision, remain in effect.

            • The Court finds that at all times the parties agreed
              and understood that the deposit would remain in
              escrow pending the closing, and that if the closing
              was not consummated, the deposit was subject to
              claim by the defendant[s].

            • Further, plaintiffs' argument that if the liquidated
              damages provision remained in place, then the
              mortgage contingency provision also remained in
              place is incorrect. Plaintiffs on November 14,
              2018,[6] represented to the Court and the defendants
              that they were ready, willing and able to close the
              transaction because their mortgage was in place,

   The judge appears to have been mistaken about the date, as there was no
hearing on November 14, 2018, but rather an order memorializing the settlement
reached earlier by the parties after the October 9, 2018 plenary hearing.
                when in fact the mortgage was no longer in place.
                . . . To allow the plaintiffs to benefit from this
                misrepresentation would not be equitable.

                [(Emphasis added)].

      Having made these determinations, the judge then turned to the

enforcement of the liquidated damages claims. The judge recognized that,

notwithstanding the parties' acknowledgement in the original agreement that a

return of the full amount of the deposit as liquidated damages would be

reasonable, New Jersey case law requires such damages to be objectively

reasonable. See, e.g., Wasserman's Inc., v. Twp. of Middletown, 137 N.J. 238,

247-54 (1994). Accordingly, the judge evaluated the equities of both sides, and

concluded that Edgewater 880 should retain only a portion of the deposit

representing the loss of the benefit of its bargain.

      Specifically, the judge adopted a capitalization rate of 6.0 percent – a

figure between the experts' competing percentages of 5.50 and 6.75 percent.

That 6.0% rate yielded a computation of $7,784,100 as the fair market value for

the Edgewater property, a figure $736,900 less than the contract price. Based

on this computation, the judge awarded $736,900 of the deposit to Edgewater

880 as damages for the buyer's breach, allowing Seven Star to retain the

$115,200 remainder.

      On appeal, Seven Star contends it was entitled to a return of the full

deposit. It argues the trial judge erred in finding that the Liquidated Damages

Clause implicitly carried over from the original agreement to the settlement

agreement. Seven Star further contends the judge erred in finding that its

representatives made misrepresentations to the court and Edgewater 880 about

the status of the first mortgage commitment. Additionally, Seven Star maintains

that it was not the proximate cause of any damages to Edgewater 880, and that

the court's calculations of the property's value were flawed by utilizing an

improper capitalization rate.

      In response, Edgewater 880 urges that we uphold the judge's decision. It

has not cross-appealed the judge's determination to return a $115,200 portion of

the deposit to Seven Star.


      We apply well-established principles of appellate review to the Chancery

judge's decision. As a general matter, we will affirm a trial judge's findings of

fact in this non-jury setting if they are supported by "adequate, substantial,

credible evidence." Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169

(2011) (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)).

      We review de novo, however, the judge's rulings on questions of law,

including the interpretation of contract terms. Kieffer v. Best Buy, 205 N.J. 213,

222-23 (2011). With respect to the judicial fashioning of relief, such as the

allocation of the contract deposit, we must bear in mind that a "Chancery judge

has broad discretionary power to adapt equitable remedies to the particular

circumstances of a given case." Marioni v. Roxy Garments Delivery Co., Inc.,

417 N.J. Super. 269, 275 (App. Div. 2010) (citing Salorio v. Glaser, 93 N.J. 447,

469 (1983); Mitchell v. Oksienik, 380 N.J. Super. 119, 130-31 (App. Div.


      Applying these review standards here, we affirm the trial court's decision,

substantially for the sound reasons expressed in Chancery Judge James J.

DeLuca's August 28, 2019 oral opinion. We add only a few comments by way

of amplification.

      First, we agree with Judge DeLuca that the parties' settlement achieved at

the courthouse and placed on the record on October 9, 2018 did not fully

supersede the unaltered terms of the parties' original purchase-and-sale contract.

The main revision of the deal was to eliminate the sale of Seven Star's Tenafly

property to Edgewater 880.       To offset that change in consideration, the

settlement called for Edgewater 880 to take back a corresponding $2.2 million

mortgage on the sale of the Edgewater property. Other than various adjustments

to the contract deadlines, no other material terms were altered or nullified.

      The judge rightly considered the settlement to be a modification, but not

a complete displacement, of the original agreement. See, e.g., Cnty. of Morris

v. Fauver, 153 N.J. 80, 99 (1998).          The unaltered terms of the original

agreement, including the Mortgage Contingency Clause and the Liquidated

Damages Clause, survived.

      The settlement placed on the record in October 2018 and the

corresponding order were not comprehensive real estate contracts. Additional

terms were logically carried forward under the original agreement, and the

record is bereft of evidence the parties intended otherwise. The settlement did

not operate as a novation, as it did not add a new party, "either as obligor or

obligee, who was not a party to the original duty." Carrington Mortg. Servs.,

LLC v. Moore, ___ N.J. Super. ___ (App. Div. 2020) (quoting Restatement

(Second) of Contracts § 280 (Am. L. Inst. 1981)).

      Next, we concur with Judge DeLuca that Seven Star was not entitled to a

full refund of the deposit because it did not satisfy the requirements for such a

refund under the Mortgage Contingency Clause. That contingency provision

only entitled the buyer to get the deposit back if it acted in "good faith" should

the mortgage commitment be withdrawn or not timely procured in time for a


      The record contains ample proof – particularly the representations made

by Seven Star's former counsel that it had obtained financing and was ready to

close and the subsequent email exchanges with Edgewater 880's paralegal – that

Seven Star both misled the court and Edgewater 880 about the ongoing actual

status of the mortgage commitment. It was not until November 19 that Seven

Star's real estate attorney, after being pressed repeatedly for information by

Edgewater 880, abruptly informed the seller that the mortgage with Woori

American Bank had fallen through.

      Although the record does not disclose the exact date, Seven Star's former

counsel ultimately admitted to the court that Seven Star learned in "late October"

that the mortgage commitment with Woori American Bank had lapsed or been

withdrawn. The first mortgage was an essential underpinning of the settlement .

It was relied upon as a basis for giving Seven Star more time to close the

transaction. Nearly a month went by after the parties had placed the settlement

on the record before Seven Star finally admitted the mortgage commitment no

longer existed and it was not prepared to close.

      Although a requirement of good faith is explicit in the original agreement,

there is also "an implied covenant of good faith and fair dealing" in "every

contract in New Jersey." Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396,

420 (1997). The implied covenant signifies that "neither party shall do anything

which will have the effect of destroying or injuring the right of the other party

to receive the fruits of the contract." Ibid. (quoting Palisades Props., Inc. v.

Brunetti, 44 N.J. 117, 130 (1965)). Long ago, the United States Supreme Court


              If, with intent to deceive, either party to a contract of
              sale conceals or suppresses a material fact which he is
              in good faith bound to disclose, this is evidence of and
              equivalent to a false representation, because the
              concealment or suppression is, in effect, a
              representation that what is disclosed is the whole truth.

              [Stewart v. Wyoming Cattle-Ranche Co., 128 U.S. 383,
              388 (1888) (emphasis added).]

In a similar vein, Black's Law Dictionary defines "passive misrepresentation" as

"the act of remaining silent under circumstances that make the silence seem to

support a false statement's validity." Black's Law Dictionary 1152 (10th ed.


      Here, the trial court had sufficient grounds to conclude that Seven Star's

failure to promptly advise Edgewater 880 that the Woori American Bank

mortgage    commitment      was    no    longer   viable    constituted     passive

misrepresentation and a lack of good faith. Until the November 19 email, Seven

Star pretended that the financing was still in place, causing Edgewater 880 to

pursue final steps to prepare for a closing.      Such misleading silence was

appropriately decried by the judge.

      Although a buyer's three-to-four-week delay in obtaining a mortgage may

not establish a lack of good faith in other contexts, the particular circumstances

here, which arose out of a court-supervised settlement, justified the court's

denial of a full refund of the deposit, and its enforcement of the Liquidated

Damages Clause.

      We are also satisfied that the Liquidated Damages Clause did not operate

in this context as an unfair or unreasonable penalty. Wasserman's Inc., 137 N.J.

at 247-54; see also Met Life Cap. Fin. Corp. v. Wash. Ave. Assocs., L.P., 159

N.J. 484, 493-95 (1999).      In fact, the court arguably could have allowed

Edgewater 880 to retain the full deposit without offending principles of fairness

and equity. Out of an abundance of prudence, the court conducted an evidentiary

hearing and duly considered the testimony of the two valuation experts.

      The court had the equitable prerogative to reject the extreme positions of

both experts and adopt a valuation figure that is in between their range.

      With respect to the opinions of qualified experts, a trier of fact is free to

accept or reject the testimony of either side's expert, in full or in part. Brown v.

Brown, 348 N.J. Super. 466, 478 (App. Div.) (citing Carey v. Lovett, 132 N.J.

44, 64 (1993)), certif. denied, 174 N.J. 193 (2002); see also Angel v. Rand

Express Lines, Inc., 66 N.J. Super 77, 85-86 (App. Div. 1961) (citations

omitted); Model Jury Charge (Civil) 1.13, entitled "Expert Testimony," and

1.13(B), entitled "Optional Charge in Case of Conflicting Expert Testimony."

Moreover, as we already have noted, a Chancery judge has broad powers to

fashion equitable relief. That authority clearly was not misapplied here. The

result was not unfair to Seven Star, the breaching party.

      To the extent we have not already discussed them, Seven Star's remaining

arguments lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).


Share Review:
Yes it is. Based on the user review published on, it is strongly advised to avoid SEVEN STAR PROPERTIES, LLC VS. EDGEWATER 880 ASSOCIATES, LLC (C-000070-17, BERGEN COUNTY AND STATEWIDE) in any dealing and transaction.
Not really. In spite of the review published here, there has been no response from SEVEN STAR PROPERTIES, LLC VS. EDGEWATER 880 ASSOCIATES, LLC (C-000070-17, BERGEN COUNTY AND STATEWIDE). Lack of accountability is a major factor in determining trust.
Because unlike, other websites get paid to remove negative reviews and replace them with fake positive ones.
SEVEN STAR PROPERTIES, LLC VS. EDGEWATER 880 ASSOCIATES, LLC (C-000070-17, BERGEN COUNTY AND STATEWIDE) is rated 1 out of 5 based on the reviews submitted by our users and is marked as POOR.
Never trust websites which offer a shady ‘advocacy package’ to businesses. Search for relevant reviews on Ripoff Report and Pissed Consumer to see more unbiased reviews.
The above review and comments against SEVEN STAR PROPERTIES, LLC VS. EDGEWATER 880 ASSOCIATES, LLC (C-000070-17, BERGEN COUNTY AND STATEWIDE) were submitted by user(s) and have been published as-is. does not edit, alter or remove content published by it’s users. There’s no amount of money a business can pay to manipulate their reviews or complaints and will NOT entertain any request to remove the review on SEVEN STAR PROPERTIES, LLC VS. EDGEWATER 880 ASSOCIATES, LLC (C-000070-17, BERGEN COUNTY AND STATEWIDE) at any cost whatsoever.