JOSEPH BAHGAT VS. NATALE CHILDREN, LLC (C-000066-18, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0114-19

JOSEPH BAHGAT,

Plaintiff-Appellant,

v.

NATALE CHILDREN, LLC,
JDN PROPERTIES, LLC,
a/k/a LAND MANAGEMENT
ASSOCIATES, MICHAEL
JACONELLI, MICHELE
JACONELLI, and TAM
LENDING CENTER, INC.,

Defendants-Respondents.
___________________________

Argued September 30, 2021 – Decided November 18, 2021

Before Judges Alvarez and Mitterhoff.

On appeal from the Superior Court of New Jersey,
Chancery Division, Middlesex County, Docket No.
C-000066-18.

Joseph A. Bahgat, appellant, argued the cause pro se.

Frederick B. Zelley argued the cause for respondents
Natale Children, LLC, and JDN Properties, LLC, a/k/a
 Land Management Associates (Bisogno, Loeffler &
Zelley, LLC, attorneys; Frederick B. Zelley, of counsel
and on the brief).

PER CURIAM

In this landlord-tenant and special civil part action, plaintiff Joseph

Bahgat appeals from (a) a July 25, 2019, order terminating the contract of sale

between the parties and awarding defendant a judgment for possession: and (b)

an August 2, 2019, order discharging a lis pendens and awarding attorney's fees.

We affirm, substantially for the reasons set forth in Judge Vincent LeBlon's

well-reasoned oral opinions.

We discern the following facts from the record. In June 2015, plaintiff, a

licensed attorney, leased a luxury townhouse from defendants. The two-year

lease began in July 2015 and included an option to purchase the townhouse at

the end of the lease. In July 2017, plaintiff did not renew, and he was thereafter

considered a holdover tenant by the operation of law. 1 He continued to rent the

townhouse on a month-to-month basis but did not exercise his right to purchase.

1
A "holdover tenant" is generally defined as "[s]omeone who remains in possession
of real property after a previous tenancy . . . expires[.]" Black's Law Dictionary
1769 (11th ed. 2019); see also Newark Park Plaza Assocs., Ltd. v. City of Newark,
227 N.J. Super. 496, 499 (Law Div. 1987) ("It is well-settled law in New Jersey that
when a tenant continues to occupy a premises after the termination of a lease, his
status becomes that of a month-to-month holdover tenant."). Accordingly, plaintiff's

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 On April 12, 2018, defendants filed an order to show cause (OTSC)

against plaintiff in the Special Civil Part and a dispossession action in the

Landlord-Tenant Section. The dispossession action was based on plaintiff's

nonpayment of rent for several months. The OTSC sought to compel plaintiff

to permit the showing of the premises after he had failed to exercise his purchase

option.

In response, on April 30, 2018, plaintiff filed an OTSC and verified

complaint in the Chancery Division alleging that: (a) plaintiff was entitled to

declaratory judgment stating that the purchase option was valid and enforceable

and defendants could not evict plaintiff (count one); (b) defendants breached the

implied covenant of good faith and fair dealing (count two); (c) defendants

breached the covenant of quiet enjoyment (count three); (d) promissory estoppel

(count four); (e) invasion of privacy (count five); (f) defamation (count six); (g)

violation of Gramm-Leach-Bliley Act and N.J.S.A. 56:8-161 et seq. (count

tenancy converted to a holdover tenancy on a month-to-month basis. See N.J.S.A.
46:8-10.

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seven); and (h) civil conspiracy (count eight). That same day, plaintiff filed a

notice of lis pendens.2

On May 15, 2018, the return date of the OTSC, the parties met with Judge

LeBlon and attempted to mediate a resolution of the case. Later that day, the

parties appeared before Judge LeBlon and entered the basic terms of a negotiated

settlement on the record, under which plaintiff could purchase the premises if

he satisfied certain conditions. The following day, defendants' counsel

forwarded a proposed consent order to plaintiff memorializing the terms of the

settlement in greater detail. The parties continued negotiations until plaintiff

signed the final version June 16, 2018.

On June 18, 2018, Judge LeBlon signed the final consent order. The key

provisions of the consent agreement required plaintiff to: 1) bring himself

current in his rent; 3 2) negotiate and enter into a formal contract to purchase the

2
A lis pendens is defined as "[a] notice, recorded in the chain of title to real property,
required or permitted in some jurisdictions to warn all persons that certain property
is subject matter of litigation, and that any interests acquired during the pendency of
the suit are subject to its outcome." Black's Law Dictionary 1117-18 (11th ed. 2019);
N.J.S.A. 2A:15-6 to 15-17.
3
Plaintiff owed defendants $11,600 in overdue rent for the months of February,
March, April, and May of 2018 at a rate of $2,900 per month. Defendants agreed to
dismiss the April 2018 dispossession action against plaintiff in exchange for
payment of the overdue rent.

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premises with specified terms;4 3) obtain a formal mortgage commitment by July

16, 2018; and 4) close title by August 15, 2018.

In addition, paragraph 4 of the consent order required plaintiff to timely

pay his rent "without deductions" for each month post-settlement that he

continued to reside in the townhouse. Paragraph nine provided that if defendant

properly terminated the contract in accordance with the agreement's terms,

plaintiff would vacate by August 31, 2018. If plaintiff failed to vacate,

paragraph nine indicated defendant would be entitled to "a [j]udgment for

[p]ossession of the [p]remises and to the immediate issuance of a [w]arrant for

[r]emoval, by authority of this [c]onsent [o]rder, upon [d]efendant's submission

to the [c]ourt a [c]ertification confirming [p]laintiff's failure to vacate."

With respect to attorney's fees, the agreement provided that "[t]he parties'

claims for attorney['s] fees shall be held in abeyance unless and until the issue

is not resolved amicably by the parties and an appropriate application is made

to the [c]ourt."

4
Plaintiff did negotiate and sign a contract to purchase the property. The contract
required, consistent with the settlement agreement, that plaintiff obtain a mortgage
commitment by July 16, 2018. The contract further provided if plaintiff was unable
to obtain financing by that date, the seller could terminate the contract.
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 Plaintiff brought himself current on his past-due rent, but immediately

violated paragraph four of the consent order by failing to pay his June and July

rent on time. He further violated the settlement terms by unilaterally deducting

$597 – the alleged cost of a microwave and repairs to an electrical panel. On

July 23, 2018, defendants emailed plaintiff to advise that if he did not pay the

remaining $597, defendants would terminate the contract for sale and seek

possession.

Plaintiff also violated what was arguably the central term of the agreement

by failing to secure a mortgage commitment prior to July 16, 2018. For that

reason, on July 25, 2018, defendants advised plaintiff that the contract was being

terminated and submitted a proposed order to Judge LeBlon to terminate the

contract of sale and enter judgement of possession for defendants.

Judge LeBlon directed the parties to appear before him on July 26, 2018.

Plaintiff's mortgage representative, Ted Ark (Ark) of Golden Mortgage

Corporation, testified by telephone that although plaintiff had consulted with

him in the prequalification stage of obtaining a mortgage, plaintiff had not yet

been approved by underwriting and no firm mortgage commitment had issued.5

5
Plaintiff's assertion that Ark testified that he had issued a firm mortgage
commitment is not supported by the record.

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Ark could not confirm that a commitment would issue before the August 15,

2018, closing deadline. Based on Ark's testimony, Judge LeBlon granted

defendants' motion for termination of the contract and possession of the

premises. He noted that plaintiff had failed to secure a mortgage commitment

in violation of the consent agreement, stating:

this contract is specifically contingent upon buyer at
buyer's sole cost and expense no later than July
[sixteenth] of 2018, obtaining and delivering to seller's
attorney a firm mortgage commitment for a mortgage
on the premises in the amount of $440,000 at a
prevailing rate of interest for a term of [thirty] years
with only standard conditions; in parentheses, i.e. with
no unusual conditions.

I find and I believe that [plaintiff] has not met
that term of the contract. It is not a [–] from the
testimony of Mr. Ark . . . a firm mortgage commitment.
He specifically said it was not. Even if it was
considered a mortgage commitment, it does have an
unusual condition requiring that computations be made,
which I just read. So I find and I believe that [plaintiff]
has not met [–] not met the terms of that mortgage
commitment.

[(2T66:19-67:11).]6

6
After Judge LeBlon awarded defendants possession of the premises, plaintiff
sought a temporary stay pending appeal, which the judge denied. On August 30,
2018, plaintiff filed a second OTSC. This application was denied by Judge LeBlon
on September 4, 2018. On October 1, 2018, plaintiff filed an application seeking

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 On July 31, 2018, defendants' counsel emailed plaintiff and his real estate

attorney a proposed discharge of the notice of lis pendens, and asked plaintiff to

notify him of any objections. Plaintiff did not respond to this request. On

August 21, 2018, defendants' counsel re-sent the July 31, 2018, email and

proposed form of order. On September 16, 2018, defendants' counsel re-sent

the July 31, 2018, and August 21, 2018, emails and proposed form of order to

plaintiff. Defendants' counsel warned plaintiff that he would involve the court

if he did not receive an answer.

On July 16, 2019, defendants moved to discharge plaintiff's notice of lis

pendens and for entry of a monetary judgment in accordance with the June 18,

2018, consent order. Judge LeBlon granted the application, finding that:

the applicable portion of the statute is 2A:15-17 which
is entitled "Discharge of lis pendens when judgment is
paid, satisfied or action settled or abandoned."

And in the appropriate portion of the [–] that
statute, it provides that if the judgment has been paid,
satisfied, performed or has [–] or the action has been
settled, but the party who filed the notice of lis pendens
fails to file the warrant stated, the [c]ourt having
jurisdiction of the action may, upon being satisfied of

emergent relief from this court, which we denied. On October 8, 2018, plaintiff
sought emergent relief from the Supreme Court, which was also denied.

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 the fact of such payment, satisfaction, performance,
settlement or abandonment and upon such notice may
by its order direct, that the notice of lis pendens be
discharged of all claims or equities set up in the
complaint in the action.

Here I find that the matter was indeed settled.
And in the attachment to the certification of the
defendant Joseph Natale is the order of June
[eighteenth] of 2018. The paragraph [fifteen] of that
indeed provides subject to the enforcement of the terms
of the consent order, all complaints and/or
counterclaims pled or which could have been pled, and
any and all claims raised or which could have been
raised by [plaintiff] against [defendant], and others in
this action, in the action bearing docket number DC and
the LT docket number, other than the attorney fee claim
which is addressed in paragraph [eleven] above, shall
be and same hereby are dismissed and released without
cost to any party. The dismissal and release being with
prejudice as to all claims substantively settled by the
terms of the consent order and without prejudice to any
other claims.

Judge LeBlon also determined that defendants were entitled to attorney's

fees in the amount of $27,012.57 based on plaintiff's violations of the lease

agreement and consent order. He noted that:

[a]ll of the actions taken by the defendants were in
accordance with the agreements between the parties.
There is no basis for the [c]ourt not to grant the
attorney's fees. They were all incurred I find and [–]
and I believe reasonably given the actions of the
plaintiff.
And indeed the argument that Mr. Zelley that was
in his certification that the plaintiff never prevailed on

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 [–] the merits is accurate. [Plaintiff] was simply trying
to delay the resolution of this matter and delay his
removal from the property. I [–] I don't find any of his
[–] his actions to be with merit. And indeed they were
just simply to delay the ultimate resolution to this
matter.

Plaintiff now appeals and presents the following issues for our review.

POINT I

THE TRIAL COURT ERRED BY SUA SPONTE
DISMISSING PLAINTIFF'S AMENDED VERIFIED
COMPLAINT AND THEN LATER HOLDING THAT
PLAINTIFF SETTLED HIS CLAIMS AGAINST THE
LANDLORD DEFENDANTS.

POINT II

THE TRIAL COURT'S [JULY] 26, 2018 ENTRY OF
JUDGMENT IS NOT SUPPORTED BY THE
RECORD, AND THE HEARING WAS A
FUNDAMENTALLY UNFAIR PROCEEDING THAT
VIOLATED PLAINTIFF'S DUE PROCESS RIGHTS,
AS WELL AS N.J.S.A. [] 2A:18-61.1.

A. The Anti-Eviction Act prohibits a trial court
from removing a tenant without strict compliance
of The Act, and without first holding a trial and
finding one of the grounds for eviction
enumerated in N.J.S.A. [ ] 2A:18-61.1.

B. It was improper for the trial judge to serve as
a mediator for the case, and then turn around and
assume the roles of fact finder and judge of the
law.

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 POINT III

THE TRIAL COURT ERRED AS A MATTER OF
LAW BY AWARDING ATTORNEY'S FEES TO THE
LANDLORD WITHOUT FIRST HOLDING A TRIAL,
HAVING EVIDENCE THAT THE TENANT
BREACHED THE LEASE, AND FINDING THAT
THE COUNSEL FEES CLAIMED BY THE
LANDLORD WERE INCURRED AS A DIRECT
RESULT OF THE TENANT'S BREACH(ES) OF ONE
OR MORE OF THE LEASE PROVISIONS.

POINT IV

THE TRIAL COURT ERRED BY DISCHARGING
THE NOTICE OF LIS PENDENS BECAUSE THE
CASE WAS NOT SETTLED.

Plaintiff's arguments lack merit. We affirm.

On May 15, 2018, faced with imminent eviction, plaintiff elected to settle

the dispossession matter with his landlord rather than proceed to trial. At that

juncture, plaintiff had limited options as a holdover tenant who was three months

in arrears on his rent. Nor had he exercised his right to purchase the premises

in July 2017 when the lease expired. Based on plaintiff's professed eagerness to

purchase the property, however, the landlord agreed to afford plaintiff a limited

opportunity to consummate the purchase of the townhouse.

We reject plaintiff's argument that the court violated his procedural rights

under the Anti-Eviction Act by terminating the contract and awarding defendant

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possession. Having voluntarily executed the consent order memorializing the

parties' settlement, plaintiff's right to possession was governed solely by the

terms of that consent order. We treat settlement agreements like contracts,

which are "to be enforced, as written, absent a demonstration of fraud or other

compelling circumstances." Willingboro Mall, Ltd. v. 240/242 Franklin Ave.,

L.L.C., 421 N.J. Super. 445, 451 (App. Div. 2011). The court did not err in

enforcing the mortgage contingency provision of the order as written.

Plaintiff next argues that the judge – having assisted the parties in reaching

a settlement-in-principle and thereafter signing the consent order executed by

the parties – was precluded from enforcing the settlement agreement. We are

unpersuaded.

Minkowitz v. Israeli, 433 N.J. Super. 111, 142, (App. Div. 2013), on

which plaintiff relies, is factually inapposite. In Minkowitz, an arbitrator

appointed under the New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to 2A:23B-

32, assumed the role of mediator, wrote up a mediation agreement, then resumed

the role of arbitrator and converted the mediation agreement into a binding

arbitration award. In Minkowitz we reasoned a mediator could not later serve

as an arbitrator because "the differences in the roles of these two types of dispute

resolution professionals necessitate that a mediator, who may become privy to

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party confidences in guiding disputants to a mediated resolution, cannot

thereafter retain the appearance of a neutral factfinder necessary to conduct a

binding arbitration proceeding." Minkowitz, 433 N.J. Super. at 142.

In Kernahan v. Home Warranty Administrator of Florida, Inc., 236 N.J.

301, 323 (2019), the Supreme Court also addressed the differences between

mediation and arbitration. The Court highlighted that "a mediator does not reach

a final decision on the matter. Instead, the mediator, albeit remaining neutral,

encourages the participants to resolve their differences and reach an agreement."

Ibid. Conversely, "[t]he object of arbitration is the final disposition, in a speedy,

inexpensive, expeditious, and perhaps less formal manner, of the controversial

differences between the parties." Id. at 324 (quoting Hojnowski v. Vans Skate

Park, 187 N.J. 323, 343 (2006)).

Although both Minkowitz and Kernahan were specific to the context

comparing the roles of a mediator and an arbitrator, and they did not address the

role of a judge who participates in settlement discussions, we do not distinguish

them on that basis. Indeed, Kernahan expressly stated that "[m]uch like a

judicial factfinder, '[a]rbitrators essentially weigh evidence, assess credibility,

and apply the law when determining whether a party has proven his or her

request for relief.'" Ibid. (quoting Minkowitz, 433 N.J. Super. at 144). We

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conclude, however, that a critical factual distinction renders Minkowitz

inapplicable.

In this case, Judge LeBlon acted as "mediator" in conferencing about a

possible settlement. When the case settled, there was no need for an "arbitrator,"

or trial judge, to adjudicate the dispossession case, and Judge LeBlon did not act

in that capacity.7 Rather, after the settlement, his sole role was to enforce the

terms of the settlement to which the parties had agreed. We conclude that the

judge's enforcement actions were entirely appropriate and reject plaintiff's

assertions to the contrary.

We also reject plaintiff's claim that he was deprived of due process

because the judge agreed to hear the application on short notice. Judge LeBlon

indicated that he was exercising his discretion pursuant to Rule 1:1-2 to hear the

matter on short notice because the parties had been before him only ten days

earlier, at which time plaintiff indicated that he had a firm mortgage

commitment. Moreover, when asked, plaintiff could not identify any relevant

evidence that would be forthcoming if he was afforded additional time to

respond.

7
The prohibition on judges participating in failed settlement discussions and then
participating as the trial judge is limited to bench trials. In a jury trial, the judge is
not the factfinder, so the prohibition does not apply.
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THE COURT: Let me just ask [plaintiff], what [–] what
[–] what more do you need time for? You've been given
an opportunity to be heard. You had notice and you're
having a hearing. What [–] what more would you have
done to prepare for this today?

[PLAINTIFF]: I would have gotten all of the [–]
emails, text messages [–]

THE COURT: And you have all of them on your
computer [–]

[PLAINTIFF]: [–] from the landlord.

THE COURT: [–] there that [–] yeah, you have in front
[–]

[PLAINTIFF]: [–] I have some [–]
THE COURT: [–] of you; right?

[PLAINTIFF]: [–] I have some of them.

THE COURT: Okay.

[PLAINTIFF]: Some of them I've saved screenshots of
and they're in the [–] you know, I would have printed
them out with – you know, with [–] with captions [–]
with labels so that [–]

THE COURT: And what would have been relevant?

[PLAINTIFF]: It would have shown that the [–] that
this is [–] this is how we've been [–] this is how the
parties have been corresponding for the [–]

THE COURT: Under the[–]

[PLAINTIFF]: [–] past three years.

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 THE COURT: [–] terms of the lease, not [–] not [–] not
under the terms of the contract.

[PLAINTIFF]: Correct.

The judge correctly determined that the proffered evidence, which relates

to the parties' "course of conduct" over the three years preceding the settlement,

has no relevance to whether plaintiff timely obtained a mortgage commitment.

Rather, the correspondence relates to plaintiff's deductions from his rent over

the years for various repairs to the townhouse. Plaintiff claims this shows he

did not violate paragraph four of the consent order by unilaterally deducting the

$597 for the microwave because making such deductions was routinely

permitted under the lease.

The judge, however, correctly noted that the terms and related practices

under the lease did not govern. Rather, the terms of the consent order superseded

the terms of the lease, and the order required timely payment without deductions.

Regardless, the judge did not terminate the contract based on the deduction from

the rent; rather, his decision was based entirely on plaintiff's indisputable failure

to timely obtain a mortgage commitment.

Plaintiff also argued that the emails would have shown he was under

pressure to agree to the terms and that defendant "used the date" to leverage a

settlement.

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 THE COURT: Okay; okay. Anything else that you
would have brought with you [other than] the exhibits?
What else?

[PLAINTIFF]: The [–] well I would have brought the
[–] something from my [–] my real estate attorney for
my [–] who's doing the closing, with his negotiation[–]
something with his correspondence with Mr. Zelley
about the inspection report and the [–] also the red lined
versions of the contract that went back and forth to
show [–]

THE COURT: And how would [–] how would that have
been relevant?
[PLAINTIFF]: To show that Mr. Zelley waited until the
last minute and then used [–] used the [–] the date as a
[–] as a means to [–] to [–] to force the contract, so that
[–] because the consent order said that it had to be
signed by June [first].

THE COURT: Negotiations of the contract would not
be relevant, so that [–] that wouldn't have made a
difference here at all. Anything else? 8

[PLAINTIFF]: Off the top of my head, no.

[(2T38:2-40:2).]

We agree with Judge LeBlon that the details of the settlement negotiations,

which occurred between May 15 and June 16, are not relevant to whether

8
Moreover, the month-long negotiation belies any assertion that plaintiff was
unduly pressured to settle. Rather, the record reflects that after a month of
negotiations, defendant indicated it would make no further concessions. Had
plaintiff not agreed with the final version, he could have opted to proceed to trial.

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plaintiff timely obtained a mortgage. Further, because plaintiff failed to identify

any relevant evidence that would be produced given additional time, the judge

did not abuse his discretion by hearing the matter on short notice pursuant to

Rule 1-1:2.9

Plaintiff's argument that a trial must occur before attorney's fees may be

awarded is without merit. In Community Realty Management, Inc. for

Wrightstown Arms Apartments v. Harris, the Supreme Court explained that:

[i]t is clear that a tenant in New Jersey may
contractually agree to pay reasonable legal fees related
to an eviction. It is equally clear that New Jersey courts
are required to enforce the provisions of a lease in the
absence of contravening public policy. Courts
generally uphold provisions in leases calling for the
payment of reasonable attorneys' fees. Courts also
generally enforce provisions that define rent to include
damages in absence of contravening public policy. The
written lease, however, must expressly permit a
landlord to recover reasonable attorney's fees in a
summary dispossess proceeding before a
landlord/tenant may consider those expenses as
additional rent.

[155 N.J. 212, 234 (1998) (citations omitted).]

9
Both parties supplemented the record with the parties' communications referenced
by plaintiff. Because we find plaintiff's own proffer sufficient to justify the judge's
proceeding on short notice, we find it unnecessary to discuss the contents at length.
We note, however, that we observed nothing to contradict or undermine the judge's
finding that neither the parties' course of conduct nor the settlement negotiations are
relevant to whether plaintiff timely obtained a mortgage commitment.
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 Here, plaintiff and defendants clearly provided for payment of attorney's

fees in the lease agreement. Specifically, paragraph ten states that "[t]he [t]enant

is liable for all damages caused by the [t]enant's violation of any agreement in

this lease. This includes reasonable attorney's fees and costs." Plaintiff, by

virtue of the consent order, agreed to hold attorney's fees in abeyance. When

plaintiff violated the terms of the consent order, the motion judge awarded

defendants attorney's fees in accordance with paragraph eleven of the consent

order. He determined that the attorney's fees sought by defendants were

"warranted" and "fair and reasonable." The judge found, correctly, that all the

fees were incurred in enforcing the terms of the lease, including defending

against unsuccessful Orders to Show Cause and emergent applications to this

court and the Supreme Court. We discern no error in the judge's award of

attorney's fees.

We conclude that plaintiff's argument that the case was not settled, as well

as any of the parties' remaining arguments to the extent we have not addressed

them, are without sufficient merit to warrant discussion in a written opinion.

See R. 2:11-3(e)(1)(E).

Affirmed.

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