ALI SHAHEED JONES-MUHAMMAD VS. KRISTINE OTTÂ (FM-07-1350-11, ESSEX COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-3207-15T1
    ALI SHAHEED JONES-MUHAMMAD,
    Plaintiff-Appellant,
    v.
    KRISTINE OTT,
    Defendant-Respondent.
    ______________________________________________
    Submitted May 2, 2017 – Decided October 11, 2017
    Before Judges Messano and Grall.
    On appeal from the Superior Court of New
    Jersey, Chancery Division, Family Part,
    Essex County, Docket No. FM-07-1350-11.
    W. Lois Kahagi, attorney for appellant.
    Snyder Sarno D'Aniello Maceri & da Costa,
    LLC, attorneys for respondent (Angelo Sarno,
    of counsel and on the brief; Michelle A.
    Wortmann, on the brief).
    PER CURIAM
    Plaintiff Ali Shaheed Jones-Muhammad and defendant Kristine
    Ott married in 1997 and separated in 2007.               Plaintiff filed the
    complaint in 2010, and they were divorced on March 28, 2013.1
    The judgment incorporates their marital settlement agreement
    (MSA).   Plaintiff appeals a post-judgment order enforcing
    equitable distribution of the marital residence, transfer of
    responsibility for making the mortgage payments, and plaintiff's
    assumption of sole responsibility for his unpaid income taxes.
    Defendant contends we should affirm.
    The order resolves a motion defendant filed in March 2015,
    when she learned the principal balance on the mortgage was
    higher than stipulated in the MSA, and another she filed in
    October 2015, because a title search disclosed recorded federal
    income tax liens that exceeded the home's value.   As a
    consequence of those liens, defendant could not close on a
    contract to sell the home for $384,000 scheduled for August
    2015.
    The February 26, 2016, order requires plaintiff to retake
    title to the home he conveyed and pay her $75,000 to address the
    loss she suffered as a consequence of the liens, and a $10,000
    counsel fee.   It requires plaintiff to pay the $75,000 in
    fifteen $5000 monthly installments commencing on March 15, 2016
    1
    The judgment, a transcript of the first of two motion hearings
    and several exhibits submitted on the motions are not included
    in the record on appeal.
    2                            A-3207-15T1
    plus "interest on the total lump sum at 3% per annum" at the end
    of the term.   The counsel fee was due by April 30, 2016.
    Plaintiff acknowledges his liability and does not dispute
    the amount of the award.   He contends the judge failed to
    consider his ability to pay the $75,000 award at the rate
    established.   He also seeks reversal of the counsel fee, because
    it was not supported by an affidavit of services and exceeded
    the flat fee defendant was charged.   With the exception of the
    counsel fee, which was awarded without a certification of
    services and must be remanded, we affirm.
    I.
    During the marriage, plaintiff's income was from his work
    as a performer, composer, recording artist, and producer.      His
    income includes royalties and profit from business entities.
    While they were together, defendant assisted plaintiff,
    travelled with him when he was on tour and had no significant
    earnings.   As stipulated in the MSA, plaintiff's average income
    was $211,000 during the four years preceding divorce and they
    imputed defendant's earnings at $35,000 annually.   Plaintiff
    focused on music and entrusted his managers to handle his
    personal finances and write his checks.
    3                            A-3207-15T1
    Defendant agreed to accept reduced alimony for a limited
    duration, $3500 monthly for fifty-six months, as consideration
    for their agreement on equitable distribution.2
    By way of the MSA provisions on equitable distribution,
    defendant was to acquire the marital residence and all of its
    equity free and clear of plaintiff's interest.    Plaintiff had
    purchased the home prior to the marriage, and the title and
    mortgage were in his name.   They agreed the home was worth
    $300,000, encumbered by no debt other than a mortgage securing a
    $230,000 loan from Chase Bank (Chase), and it had approximately
    $70,000 of equity.   Plaintiff assured defendant he was "not
    aware of" any judgment or lien against the home other than the
    mortgage, and defendant gave him the same assurance.   They
    agreed neither would "further encumber the residence."
    In further consideration of the alimony, plaintiff assumed
    sole responsibility for his income tax liability and "promised
    to indemnify defendant and hold her" harmless with respect to
    "his liability (including taxes, penalties, interest and
    2
    The parties had previously divided their personal property, and
    they agreed each would retain their bank and investment accounts
    — defendant a $60,000 annuity, and plaintiff an investment
    account worth less than $2000.
    4                          A-3207-15T1
    accounting/legal fees) assessed against him as a result of [his]
    failure . . . to pay any taxes, interest or penalties."3
    The MSA addresses transfer of the home's title and
    responsibility for paying the mortgage from plaintiff to
    defendant.   Plaintiff agreed to bring payments on the mortgage
    current by the date of divorce and make his first alimony
    payment on April 1, 2013.   Defendant agreed to make the mortgage
    payments as of that date.
    They did not follow the plan for transfer, but they had
    also agreed to "make sincere efforts between them to settle"
    before going to court.   Plaintiff did not bring the mortgage
    payments current by the date of divorce, because he was in the
    process of securing a loan modification from Chase.   The
    modification would not take effect unless he made three "trial"
    payments at the modified rate.    He made the last "trial" payment
    on June 1, 2013, and the modification took effect on July 1.
    To the extent plaintiff's loan modification brought
    payments current, it was accomplished by adding debt,
    $37,584.91, to the principal.    The additional debt included
    past-due mortgage payments and interest and brought the balance
    3
    The same paragraph of the MSA, includes a similarly stated
    obligation for defendant, but there is no indication she had any
    tax liability.
    5                          A-3207-15T1
    to $266,654.91.   The monthly payments were lower, $1914.01, but
    payable over a term twice the length.    Under the mortgage in
    place, the monthly mortgage payment was $2552.14, $1539.27 of
    which was for principal and interest, with interest at 2.852%.4
    The parties' explanations for deviating from the payment
    plan were similar but not identical.    By defendant's account in
    "late spring 2013," plaintiff told her he was behind on
    payments, promised to bring them current and said he would
    continue making them until he had.   Plaintiff acknowledges the
    discussion and his promise to bring those expenses current but
    denies any agreement on future payments.
    In any event, plaintiff did not give defendant the
    information she would need to pay the mortgage until much later.
    Starting in April 2013 and ending in February 2015, the parties
    exchanged emails discussing the home's carrying costs.
    Plaintiff discussed his struggle to bring the mortgage current.
    Defendant inquired about homeowner's insurance, the amount of
    the payments and the balance.   In November 2014, he gave
    4
    The amounts stated were reported by Chase in a loan
    modification agreement offered to plaintiff near the time of
    divorce. He was required to accept by March 23, 2013. The
    Chase documents indicate that $1012.87 of both the current and
    lower modified payments was for escrow covering property taxes
    and homeowner's insurance.
    6                           A-3207-15T1
    defendant the name of the lender who had purchased his loan and
    mortgage from Chase.   Within two weeks of receiving that
    essential information, defendant obtained a statement showing a
    monthly payment of $3126.13, outstanding payments totaling
    $17,878.46, and $258,626 principal.5   Despite defendant's several
    requests for documentation on loan modifications and payments,
    which she was not able to obtain from the lender, and a request
    from her attorney, plaintiff did not provide the information.
    The final request was made in February 2015.
    By early March, defendant concluded she could not afford
    the payments, made some repairs and listed her home for sale.
    She also filed a motion to enforce plaintiff's obligations under
    the MSA.   On June 8, the judge entered an order directing
    plaintiff to sign authorizations requiring the first and second
    mortgage lenders to release all relevant information.    He
    reserved decision on relief.
    While the first motion was pending, defendant received and
    accepted an offer to purchase the home for $384,000 in August
    2015.   In anticipation of the closing, she moved.   The federal
    income tax liens disclosed by the title search amounted to
    5
    The statement and figures are referenced in the certification
    defendant submitted on the motion, but the statement is not in
    the record on appeal.
    7                             A-3207-15T1
    $610,197.10.   The liability reflected on the notices of tax lien
    was actually less: $521,841.67, when defendant discovered the
    liens in August 2015, and $258,366.60, when the judge signed the
    order at issue on this appeal in February 2016.6   During the
    motion hearing, the judge indicated that the total was about
    $500,000.   The observation demonstrates review of the notices,
    which indicated the balance would be significantly lower by
    February 2016.
    On her second motion, defendant asserted plaintiff's
    violation of his obligation to disclose the income tax liens at
    the time of divorce and sought enforcement of their agreement on
    equitable distribution, which includes the hold harmless clause.
    She requested alternative forms of relief: an order compelling
    plaintiff to remove all recorded liens other than the mortgage
    6
    The Notice of Federal Tax Lien associated with each recorded
    lien includes the following information: "For each assessment
    listed below, unless notice of the lien is refiled by the date
    given in column (e), this notice shall, on the day following
    such date, operate as a certificate of release[.]"
    By August 2015, the last refiling date had passed for three
    of the four tax liabilities stated in the notice of lien
    recorded in 2006 and one of the liabilities stated in the lien
    recorded in 2008 had expired. By February 2016, all four
    liabilities recorded on the lien filed in 2006 and two of the
    liabilities listed on the lien recorded in 2008 had expired.
    The third liability listed on the lien recorded in 2008 will
    expire in December 2017, and the liabilities listed on the lien
    recorded in 2011, a total of $144,874, is scheduled to expire in
    December 2021.
    8                           A-3207-15T1
    and eliminate debt on the mortgage in excess of $230,000; or if
    he could not do that, an order compelling him to retake the
    deed, pay the expenses she incurred, and the $154,000 she lost
    with the sale.
    Plaintiff filed a cross-motion.   Acknowledging his sole
    responsibility for the tax liabilities and his obligation to
    address defendant's loss, he denied knowledge of the recorded
    liens at the time of divorce.   He did not assert he was unable
    to pay defendant damages.   He offered reasons for not knowing
    about the liens.   His only requests were for the judge to
    consider defendant's failure to pay the mortgage as of April 1,
    2013 and to have the agent representing him before the IRS
    attend the conference to report on the status of a compromise
    under negotiation that could reduce the obligation secured by
    the deed.
    During the argument on that motion, the judge said he did
    not believe plaintiff's denial of awareness of the tax liens
    against the residence at the time of divorce, indicating the IRS
    gives notice and that plaintiff said he had been working with
    the IRS since 2013.   As to ability to pay, the judge mentioned
    that plaintiff's group had just released a new album and he did
    not believe plaintiff was not making any money and acknowledged
    that he needed current information on the parties' financial
    9                            A-3207-15T1
    status.    Stating he did not know whether plaintiff's claim that
    his managers failed to notify him was true or not, the judge
    said, "[t]hey're his liens."
    Following a colloquy on solutions to address defendant's
    lost $384,000 contract, the judge suggested the attorneys
    consider a solution involving plaintiff retaking the home and
    extending alimony.    Defendant's attorney advised they were
    discussing a settlement "along [those] lines," and the problem
    was "quantifying the amount" owed.     Plaintiff's attorney
    responded:    "Exactly."   Plaintiff's attorney presented no
    argument about defendant's inability to pay, the judge entered
    an order directing exchange and submission of recent tax
    returns, case information statements (CISs) and written
    statements of their positions on damages with supporting
    documentation.    The judge reserved decision on damages and
    counsel fees pending the submissions, and he denied all relief
    not addressed.
    The tax returns and CISs revealed plaintiff earned at a
    slightly higher rate than he had during the four years preceding
    divorce.   The average of his earnings between January 1, 2013
    10                            A-3207-15T1
    and October 31, 2015 was $239,172.7   His CIS also reports monthly
    payments to the IRS and the State of the New Jersey in excess of
    $17,000.
    The parties submitted their positions in writing in
    December 2015.   Neither discussed legal principles governing
    enforcement and modification of MSAs but both set forth
    positions on damages.    See Eaton v. Grau, 
    368 N.J. Super. 215
    (App. Div. 2004).    In response to the colloquy on the motion
    hearing, defendant's attorney indicated her client would accept
    payments on a monthly basis in the amount of $5000.
    As to damages, both parties started with the $384,000 offer
    to purchase, reduced by the $230,000 debt on the mortgage stated
    in the MSA — $154,000.   Defendant recognized the $154,000 should
    be reduced by the real estate commission stated in the contract
    of sale ($19,200).   She sought additions to equity covering
    repairs she made prior to sale and carrying costs she paid after
    she moved.8
    7
    The stated average is computed on the "Total income" reported
    on plaintiff's 2013 and 2014 1040s and the "Gross Earnings" from
    January 1 to October 31, 2015 reported on his CIS. Defendant
    notes that plaintiff's 2013 "Foreign Tax Credit" Form 1116
    reports $2,119,866 "Gross income from all sources," including
    $844,597 "income from K-1s."
    8
    The contract was submitted in this trial court but not on
    appeal.
    11                         A-3207-15T1
    Defendant also requested a counsel fee for services
    rendered on the motions in a total amount of $14,749.50, and she
    indicated a certification of services would "be submitted within
    a timeframe to be directed by the court."   The judge awarded a
    $10,000 fee although the certifications provided earlier
    indicated defendant was charged a flat fee and, at that point,
    had received services that would have costs much less than
    $10,000.
    Plaintiff's position statement does not include a
    discussion of his ability to pay, a payment schedule or the
    information in his tax returns or CIS.   He simply requested
    reductions from the $154,000.   One was for closing costs
    estimated at $25,000 to $28,000, which he suggested could be
    determined by preparing a "dummy" HUD-statement.   In lieu of a
    reasonable rent, he sought a reduction equal to payments
    defendant would have made on the mortgage prior to the loan
    modification, $2552.14, for thirty-three months — the period
    between April 1, 2013 and date of his written submission.      He
    also sought a reduction for late fees payable at the rate of
    $2526 monthly.
    Consistent with the submissions, the judge predicated the
    award on the value of defendant's lost sale, $154,000, minus
    expenses that would have been incurred had the sale occurred.
    12                          A-3207-15T1
    The order provides the only explanation for the result:
    "$154,000 in equity, less $24,000 closing costs, less $55,000
    (reasonable monthly rental costs imputed to defendant for the
    subject premises — i.e. [d]efendant cannot live rent free)."
    There is no explanation for payment of the $75,000 at the rate
    of $5000 monthly.
    As to liability, the judge determined plaintiff "had actual
    and/or constructive knowledge that the tax liens attached to the
    marital residence at the time of [divorce]," resulting from his
    or his agents' conduct, and affecting the marketability of the
    residence to the extent that it was worthless to defendant.
    As to counsel fees, the order indicates: Plaintiff "acted
    in bad faith with respect to his actions prior to, and
    subsequent to, the Judgment of Divorce," which caused defendant
    to file motions, including his failure to sign authorizations
    for defendant to speak with the mortgage lender and provide
    proof of life insurance.   On those findings, the judge entered
    the order plaintiff appeals.
    II.
    Repeating what we said at the outset of this opinion,
    plaintiff acknowledges his liability and does not dispute the
    $75,000 award.   He simply contends the judge failed to consider
    his ability to pay $5000 monthly.    He also seeks reversal of the
    13                          A-3207-15T1
    counsel fees, because it was not supported by an affidavit of
    services and exceeded the flat fee defendant was charged.
    If there were any doubt about plaintiff's acknowledgement
    of liability and acceptance of the amount, it is dispelled by
    assertions in his reply brief stating his "absolute intent to
    take on the responsibility for his income tax liability" and
    that "there is no issue of [plaintiff's] liability in this
    appeal."   He criticizes the judge's failure to address his
    ability to pay and questions "whether the trial court properly
    considered [plaintiff's] ability to pay his acknowledged
    liability at the rate the trial court established in its
    ruling."   Plaintiff contends the judge gave "unjustified weight"
    to disputed facts, relied on speculation rather than evidence,
    abused his discretion and failed to provide an adequate
    explication of his findings and reasons.   See R. 1:6-6; R. 1:7-
    4(a).
    A.
    Motions to enforce or modify equitable distribution involve
    the exercise of judicial discretion.   Eaton, 
    supra,
     
    368 N.J. Super. at 222
    ; Whitfield v. Whitfield, 
    373 N.J. Super. 573
    , 575
    (App. Div. 2004); Castriota v. Castriota, 
    268 N.J. Super. 417
    ,
    421-22 (App. Div. 1993).   An exercise of discretion requires "a
    conscientious judgment" based on "the law and the particular
    14                           A-3207-15T1
    circumstances of the case before the court."   Higgins v. Polk,
    
    14 N.J. 490
    , 493 (1954); accord Hand v. Hand, 
    391 N.J. Super. 102
    , 111 (App. Div. 2007).   And, an explanation of the factual
    and legal bases for discretionary determinations made on such
    motions is expected.   R. 1:7-4(a); Klajman v. Fair Lawn Estates,
    
    292 N.J. Super. 54
    , 61 (App. Div.) (quoting Curtis v. Finneran,
    
    83 N.J. 563
    , 569-70 (1980)), certif. denied, 
    146 N.J. 569
    (1996).
    In the absence of a statement of findings and conclusions,
    review without remand is more difficult but not foreclosed.      See
    Isko v. Planning Bd. of Livingston, 
    51 N.J. 162
    , 175 (1968)
    (noting the commonality and propriety of affirming a valid
    determination entered on an erroneous basis); Castriota, 
    supra,
    268 N.J. Super. at 421-22
     (declining to affirm denial of
    enforcement of equitable distribution as an unstated exercise of
    discretion, because equitable distribution in not subject to
    modification on a showing of changed circumstances); Rosenberg
    v. Bunce, 
    214 N.J. Super. 300
    , 304-05 (App. Div. 1986)
    (reviewing a denial of a motion to open a default judgment and
    reversing on the merits); see also R. 2:10-5; Esposito v.
    Esposito, 
    158 N.J. Super. 285
    , 291-92, 300 (App. Div. 1978)
    (exercising original jurisdiction to modify equitable
    15                           A-3207-15T1
    distribution and affirming determinations not raised on appeal
    where the judge had retired and the record was adequate).
    In this case, a limited remand for more assiduous
    compliance with Rule 1:7-4(a) prior to our decision was not an
    option, because the judge is retired.    But a remand for that
    reason is not necessary.    We are in a position to address issues
    plaintiff raised in the trial court and on appeal to determine:
    whether a genuine dispute of material fact required a plenary
    hearing, see Harrington v. Harrington, 
    281 N.J. Super. 39
    , 47
    (App. Div.), certif. denied, 
    142 N.J. 455
     (1995); or whether
    undisputed and substantial credible evidence in the record as a
    whole permits an affirmance of the order, or part of it, for a
    different reason than the one stated by the judge.   Isko, supra,
    
    51 N.J. at 175
    ; see Monte v. Monte, 
    212 N.J. Super. 557
    , 565
    (App. Div. 1986) (noting this court's obligation to "decid[e]
    whether the determination . . . is supported by substantial
    credible proof on the whole record").
    B.
    In the trial court, plaintiff did not ask the judge to
    schedule payments of the $75,000 damage award and did not assert
    a lack of ability to pay.    As the preceding discussion of the
    record demonstrates, plaintiff had three opportunities to raise
    the issue on the motion addressing the liens imposed as a
    16                          A-3207-15T1
    consequence of his tax liability:    in opposition to the motion;
    during argument on the motion; and in his final submission
    stating his position on damages.     He did not take it, and we
    decline to address the issue for that reason.
    It is a well-settled principle that our
    appellate courts will 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 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), certif. denied, 
    31 N.J. 554
     (1960)).]
    This award, as defendant argues, enforces the MSA's scheme
    for equitable distribution — the marital residence and the hold
    harmless clause were what the parties bargained for.     See Eaton,
    
    supra,
     
    368 N.J. Super. at 224
    ; Castriota, 
    supra,
     
    268 N.J. Super. at 421-22
    .9   The judge's insistence on tax returns and CISs
    9
    As to the residence, the hold harmless clause shielding
    defendant from plaintiff's tax liability was not conditioned on
    his ability to pay and the tax liability prevented its the sale.
    As to the value of sale, plaintiff urged calculation based
    on mortgage payments defendant would have made. A calculation
    based on those payments would not have favored plaintiff.
    (footnote continued next page)
    17                          A-3207-15T1
    dispels any concern that he based the payment schedule on
    unsupported assumptions equating plaintiff's celebrity status
    with wealth.   The judge had tax returns.   On the question of
    inability to perform his promise to hold defendant harmless,
    plaintiff had the burden of proof.   See Morris v. Morris, 
    263 N.J. Super. 237
    , 244-45 (App. Div. 1993) (discussing the payor's
    Had he brought the payments current and defendant had made
    them starting on April 1, 2013 and ending on August 1, 2015, the
    result would have been more favorable to her.
    Defendant would have been making monthly payments of
    principal and interest in the amount of $1539.27, on an interest
    rate of 2.852%. She would have made twenty-nine payments,
    starting on April 1, 2013 and ending on August 1, 2015. Assuming
    the worst case scenario from the perspective of accruing equity
    in the home — that the April 1, 2013 payment was the first, the
    amount owed on debt would have been lower — between $208,595
    (calculated at 2.8%) and $208,750 (calculated at 2.9%).
    Had plaintiff's suggestion for a reduction based on
    payments and established costs of closing been used this would
    be the result: the period would be for twenty-nine not thirty-
    three months, because no payments would be made after closing:
    $384,000 - $209,000 (principal due) = $175,000 (equity) -
    $74,012.16 (29 total payments including escrow $2552.14 per
    payment) = $100,987.84 (equity - payments) - $19,204 (the only
    closing cost supported by evidence) = $81,783.78.
    Moreover, reading the integrated agreement as a whole and
    recognizing that the residence and protection from tax liability
    was in consideration for the agreement on reduced alimony for a
    limited duration, more than the total of numbers on a HUD sheet
    was involved. Glass v. Glass, 
    366 N.J. Super. 357
    , 371-74 (App.
    Div.), certif. denied, 
    180 N.J. 354
     (2004); Morris v. Morris,
    
    263 N.J. Super. 237
    , 244 (App. Div. 1993) (finding no inequity
    in enforcing the parties' integrated agreement fashioned in
    light of husband's debt).
    18                           A-3207-15T1
    obligations to disclose and explain financial information in a
    similar situation).
    C. Counsel Fees
    We agree with plaintiff that the award of counsel fees must
    be vacated and remanded for reconsideration.   The judge erred by
    considering it without a complete certification of services
    permitting assessment of the reasonableness of the fees charged.
    Here, a certification detailing services and a discussion of
    legal principles relied upon to award a counsel fee in excess of
    the flat fee charged were essential.   See N.J.S.A. 2A:34-23; R.
    4:24-9 (b)-(d); R. 5:3-5(c); Mani v. Mani, 
    183 N.J. 70
    , 93-95
    (2005).
    On remand, the judge should not accept the judge's
    conclusion, stated in the February 26, 2016 order, that
    plaintiff had actual knowledge of liens at the time of divorce
    and acted in bad faith by failing to disclose them.   In the
    trial court and on appeal, plaintiff claimed that a genuine
    factual dispute precluded a finding that he knew about the liens
    at the time of divorce without a plenary hearing, and that point
    is well-taken.
    The notices of tax liens and plaintiff's statement that he
    had been working with the IRS since 2013 reasonably supported an
    inference that plaintiff knew about the liens prior to divorce.
    19                          A-3207-15T1
    But plaintiff denied having that knowledge, and he provided
    sufficient plausible explanations to require a plenary hearing.
    We refer to plaintiff's assertions of reliance on business
    managers to handle his personal finances and write his checks;
    Chase's approval of the loan modification; and the silence on
    the subject of liens from the attorneys providing services in
    divorce proceeding given the MSA's contemplation of transfer of
    title by quit claim deed.10
    The award of attorney's fees is vacated and remanded for
    consideration anew in conformity with this decision; the order
    of judgment appealed from is otherwise affirmed; jurisdiction is
    not retained.
    10
    Had plaintiff disputed liability based on a knowing false
    representation that the residence was encumbered by liens other
    than the mortgage, we would have affirmed on a different ground
    — enforcement of the MSA's undisputedly applicable hold harmless
    clause.
    20                         A-3207-15T1