SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3929-16T2

NEW JERSEY HIGHER 

EDUCATION STUDENT 

ASSISTANCE AUTHORITY,

Plaintiff-Appellant,

v.

ABIGAIL SIAW, PHILIP

SIAW and FELICIA MENSAH,

Defendants-Respondents.

__________________________________

Submitted July 24, 2018 – Decided January 15, 2019

Before Judges Ostrer and Vernoia.

On appeal from Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-1638-16.

Russell P. Goldman, attorney for appellant.

Respondents have not filed briefs.

The opinion of the court was delivered by

OSTRER, J.A.D.

NOT FOR PUBLICATION WITHOUT THE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.
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A-3929-16T2

Plaintiff, the New Jersey Higher Education Student Assistance Authority, 

brought suit against a student borrower, Abigail Siaw, and her co-signers to 

recover the balance due on two outstanding student loans. After a bench trial,

Judge Arthur Bergman found that defendants had defaulted, but the Authority 

did not present sufficient proof of the loans' interest rates. The court therefore 

allowed recovery of the loans' principal, plus costs of collection, but not the 

loans' accrued interest. The Authority appeals, and we affirm.

I.

We discern the following facts from the trial record. To defray the costs 

of attending Rutgers University, Abigail obtained two NJCLASS loans from the 

Authority, totaling $24,309.

1

 See N.J.A.C. 9A:10-6.1 to -6.19 (describing the 

NJCLASS loan program). The first loan, issued in 2007, was for $16,700. The 

second, issued in 2008, was for $7,609. Philip Siaw co-signed the first loan and 

Felicia Mensah co-signed the second. While in school, Abigail's loan payments 

were deferred. Abigail completed her course work in January 2010, and her 

payments became due shortly afterwards. 

 

1 As she and one of her co-signers share a surname, we utilize first names for 

convenience, and mean no disrespect in doing so.
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Initially, Abigail did not make any payments, and the Authority deemed 

the loans in default in September, 2010. Upon default, NJCLASS borrowers

become "liable for the entire balance of the loan." N.J.A.C. 9A:10-6.16. Abigail 

testified that she was notified by the Authority's counsel of her default. She 

contended he agreed to accept monthly payments of $200, which she submitted 

to him starting in 2011.

In March 2016, the Authority filed a complaint to recover the loans' 

principal balance due, accrued interest, and collection costs. Abigail continued 

to make payments through February 2017. At trial in April 2017, the Authority 

demanded $15,667.41 for the 2007 loan, $7,397.14 for the 2008 loan, and 

$5,252.98 in collection costs, totaling $28,317.53. The Authority conceded that, 

at the time of trial, defendants had paid $17,942.75 toward the two loans –

$12,355.55 allocated to the 2007 loan, and $5,587.20 allocated to the 2008 loan. 2

In support of its claim, the Authority introduced into evidence, through a 

student loan investigator, the two promissory notes, accompanied by identical

documents entitled "NJCLASS Terms, Conditions and Definitions." The notes 

set forth the loan amounts, a maximum term of twenty years, but not the interest 

 

2 Abigail stated in her answer that the payments consisted of her monthly $200 

payments, plus garnished income tax refunds.
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rate. Rather, it provided that the interest was "as set forth in the NJCLASS Loan 

Terms, Conditions, and Definitions." However, those documents did not 

actually set forth the interest rate. Rather, they referred to a third document. 

The "Terms, Conditions and Definitions" stated, 

The borrower(s) and cosigner(s) will be provided a 

copy of the Disclosure Statement revealing the interest 

rate for this Note, the amount of the payment, the 

number of payments that must be made and other terms 

and conditions. If any information on the Disclosure 

Statement conflicts with the information on this Note, 

the information on the Disclosure Statement governs.

The Authority did not produce the Disclosure Statements, nor did it 

provide proof that it supplied them to defendants. The Authority introduced 

print outs from its "Direct Loan System" dated less than a week before trial, 

which purported to set forth the interest rates on the two loans. 3 Each document 

also included a line that read, "DATE DISCLOSURE: 08 19 2009." The 

Authority presented no testimony explaining the meaning of those entries, and, 

 

3

 The print out for the 2007 loan displayed a 6.55 percent interest rate, applicable 

to the periods August 19, 2009 to January 31, 2010 and March 9, 2010 to 

December 9, 2013; and a 7.3 percent interest rate for the period January 9, 2014 

to July 9, 2027. The Terms and Conditions provided that the interest rate 

increased 0.75 percent beginning with the forty-ninth month of repayment. The 

print out related to the 2008 loan displayed a 7.92 percent interest rate for the 

two periods, August 19, 2009 to January 31, 2010, and March 9, 2010 to 

December 9, 2013, and an 8.67 percent from January 9, 2014 to August 9, 2028.
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as noted, did not present any evidence showing it disclosed any interest rates to 

Abigail when the loans were made.

The "Terms, Conditions and Definitions" also entitled the Authority to 

"reasonable collection agency and attorneys' fees and other collections costs." 

The Authority's witness testified that the agency sought collection costs equal 

to the nineteen percent. The witness did not explain the basis for the nineteen 

percent figure, but the Authority's counsel later stated that the amount sought 

was his fee. 

Appearing pro se, Abigail did not directly challenge the Authority's loan 

documentation at trial, nor appear as a witness in her own defense.

4

In her 

opening statement, she asked the court to allow her and her parents to continue 

making monthly payments. Abigail explained that, because of financial 

hardships, they could not pay the lump sum due. 

Judge Bergman found that the notes were issued and the principal amounts 

disbursed, but the Authority had failed to meet its burden to prove the interest 

rates due under the two notes. He observed that the Authority did not prove that 

the disclosure statements were ever provided to defendants. The judge rejected 

 

4 The court questioned Abigail briefly to confirm when she completed her 

studies and graduated. Called as a witness in the Authority's case, Abigail 

confirmed she executed the notes, but declined to admit the amount due. 
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the Authority's argument that the 2017 print outs sufficed as proof of the interest 

rates. Notably, the documents did not provide evidence of the interest rate at 

time of disbursement, or that defendants ever received disclosure statements

showing the interest rates. In light of that failure of proof, the court found that 

the Authority had failed to establish its entitlement to any interest on the loans. 

The court converted all of defendants' payments – $12,355.55 toward the 2007 

loan amount of $16,700, and $5,587.20 toward the 2008 loan amount of $7,609

– as reductions of principal. The judge therefore found that the principal 

amounts still due were $4,344.45 on the 2007 note, and $2,021.80 on the 2008 

note. The court also found that nineteen percent of those amounts was a 

reasonable cost of collection, and entered judgment for the total of $7,575.85 

plus post-judgment interest.

The Authority moved for a new trial, contending the decision was against 

the weight of the evidence. Citing the print outs, the Authority argued it had 

proved the interest rates. The Authority also contended that the court erred in 

retroactively reallocating defendants' payments toward reduction of principal. 

The court denied the motion. 
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II.

On appeal, the Authority renews these arguments.5 The Authority argues 

the record contains sufficient proof of the loans' interest rates. Furthermore, it 

contends that defendants did not contest the interest rates, nor deny receipt of 

the disclosure statements when the loans were disbursed. In particular, as

defendants did not raise these points as an affirmative defense, the Authority 

asserts it had no burden to respond.

We are unpersuaded. In its action on the notes, the Authority had the 

burden, as in any contract action, to prove that the Authority and defendants 

"entered into a contract containing certain terms." Globe Motor Co. v. Igdalev, 

225 N.J. 469, 482 (2016) (quoting Model Jury Charge (Civil) § 4.10A "The 

Contract Claim – Generally" (May 1998)). The Authority bore the burden, in 

presenting its prima facie case, to establish the interest rates due on the notes. 

Under the circumstances, the interest rate was an essential term of a loan 

agreement. See Malaker Corp. Stockholders Protective Comm. v. First Jersey 

Nat'l Bank, 163 N.J. Super. 463, 473-74 (App. Div. 1978) (holding that the 

 

5 The Authority's notice of appeal refers only to the trial judgment. However, 

its case information statement refers also to the order denying the new trial 

motion. Defendants' brief was suppressed, after they failed to timely correct 

deficiencies in a non-conforming brief.
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interest rate was an omitted essential term of an alleged agreement to provide a 

$2 million line of credit); cf. Satellite Ent. Ctr. v. Keaton, 347 N.J. Super. 268,

277 (App. Div. 2002) (contrasting Malaker, where the interest rate was an 

"essential provision[ ] that went to the heart of the alleged agreement" with an 

agreement to pay a commercial tenant $175,000 to vacate premises, where 

interest upon the unpaid amount was an "incidental term[ ]").

Each loan contract consisted of three essential documents – the 

promissory note, the "Terms, Conditions and Definitions," and the Disclosure 

Statement. As discussed above, the interest rate was disclosed only in the last

document. Yet, the Authority did not introduce it into evidence. We agree with 

Judge Bergman that the pre-trial print outs did not suffice to establish the interest 

rates chargeable under the notes. We do so for two reasons.

First, the Authority was required to produce the loans' disclosure 

statements. N.J.R.E. 1002, the "Best Evidence Rule," requires an original 

writing to prove its contents, when the writing's contents are material to the 

dispute, and production is not otherwise excused. There is no doubt that the 

contents of the disclosure statements were material to the Authority's claim. The 

disclosure statements set the interest rates, and proof of that was an essential 

element of the Authority's claim. See State v. Ruta, 112 N.J.L. 271, 273 (E. & 
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A. 1934) (holding that the best evidence rule required production of conditional 

sales contract to establish party's right to repossess car sold thereunder); see also

6 Weinstein's Federal Evidence § 1002.05 (2018) (stating generally that "legal 

transactions that can be reduced to a writing, such as those involving . . . 

contracts . . . are subject to the best evidence rule because an original is needed 

to prove content that has legal significance"); JP Morgan Chase Bank, N.A. v. 

Rabel, 894 N.Y.S.2d 857, 860 (Civ. Ct. 2010) (holding that a bank employee's 

testimony concerning terms of contract violated best evidence rule).

Yet, the Authority failed to produce the original disclosure statements or 

duplicates. See N.J.R.E. 1003 (governing admissibility of duplicates). 

Furthermore, proof of the interest rate by other evidence was not admissible, as 

the Authority did not establish that the disclosure statements were lost, 

destroyed, unobtainable, or in defendants' possession. See N.J.R.E. 1004.

Second, even if the print outs were admissible to prove the interest rate 

set forth in the Disclosure Statements, the documents fell short of accomplishing 

that purpose. Plaintiff had the burden of proving its entitlement to relief, 

including its claim for interest, and failed to present any evidence showing it 

made disclosure of the interest rates when the loans were made and, 

concomitantly, that Abigail agreed to the purported interest rates. We are not 
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persuaded that the loan print outs, which included interest rates, filled the void 

in plaintiff's proofs; they were prepared just prior to trial and there is no evidence 

the purported interest rates were ever communicated to Abigail. The print outs 

include a reference to "DATE DISCLOSURE: 08 19 2009," but plaintiff failed 

to present evidence explaining its meaning. In sum, plaintiff presented no 

evidence establishing that disclosure of the interest rates occurred at any time or 

that Abigail agreed to any particular rates of interest.

We recognize that a court can supply an omitted essential term of a 

"sufficiently defined" contract that is "reasonable in the circumstances." 

Restatement (Second) of Contracts § 204 (Am. Law Inst. 1981); Pacifico v. 

Pacifico, 190 N.J. 258, 266-67 (2007). However, this rule applies when the 

parties did not agree to the term in the first place. Here, the Terms, Conditions 

and Definitions document indicates that there were agreed upon interest rates, 

which were set forth in the Disclosure Statements. The Authority simply failed 

to offer them into evidence. 

Our Court has also held that the failure to agree to an essential term 

renders an agreement unenforceable. Weichert Co. Realtors v. Ryan, 128 N.J. 

427, 435 (1992); Malaker, 163 N.J. Super. at 474. Instead, a party may recover 

in quantum meruit. Weichert, 128 N.J. at 437, 440-41 (remanding so that a 
11 A-3929-16T2

reasonable value of the party's services could be determined on the basis of 

proofs). However, the Authority did not ask for relief through quantum meruit, 

either before the trial court or on appeal, nor did it provide proof of what a 

reasonable interest rate would have been. Therefore, we are not obliged to reach 

the issue. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Absent proof of the interest rates, the Authority established only the 

principal amount of the loans, and the amount paid. In view of such proofs, the 

trial court appropriately entered judgment for the remaining principal balance 

due, after applying defendants' payments toward principal only, and adding the 

cost of collection.

Affirmed.