SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1250-17T3

CAM TRUST, a New Jersey Trust,

Plaintiff- Respondent,

v.

REVERE HIGH YIELD FUND, LP, 

a Delaware Limited Partnership,

Defendant-Appellant.

_____________________________

Argued October 29, 2018 – Decided November 7, 2018

Before Judges Haas and Sumners.

On appeal from Superior Court of New Jersey, Law 

Division, Ocean County, Docket No. L-2558-16.

Malcolm S. Gould argued the cause for appellant 

(Silverang Donohoe Rosenzweig & Haltzman, LLC, 

attorneys; Malcolm S. Gould, on the brief).

Shawn D. Edwards argued the cause for respondent 

(Maselli Warren, PC, attorneys; Shawn D. Edwards, of 

counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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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Defendant Revere High Yield Fund, LP appeals from the Law Division's 

September 29, 2017 orders granting plaintiff CAM Trust's motion for summary 

judgment, denying defendant's cross-motion for summary judgment, and 

ordering defendant to pay plaintiff $102,920.26 it collected in violation of a 

modification of a commercial loan negotiated by the parties. We affirm.

The material facts of this case are fully detailed in Judge Mark A.

Troncone's comprehensive written decision. Therefore, we recite only the most 

salient facts from that decision and, like Judge Troncone, view them in the light 

most favorable to defendant, the non-moving party. Polzo v. Cnty. of Essex, 

209 N.J. 51, 56 n.1 (2012) (citing Brill v. Guardian Life Ins. Co. of Am., 142 

N.J. 520, 523 (1995)).

On December 4, 2014, plaintiff executed and delivered a Term Note and 

Term Loan and Security Agreement (the Term Loan or loan) to defendant to 

evidence a loan in the principal amount of $3.5 million. The Term Loan 

provided for monthly payments of interest only, with a maturity date of March 

30, 2016. Interest was set at 12% per year. To secure the loan, plaintiff executed 

and delivered mortgages on four properties, including one property in 

Lambertville and another in Barnegat. The Term Loan further provided that 
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plaintiff could extend the maturity date to June 30, 2016 if it met the conditions 

set forth in the loan documents. 

With particular relevance to the issues involved in the present appeal, 

Section 8.01(a) of the Term Loan provided that if plaintiff failed to make a 

monthly payment within five days of its due date, this would constitute a default 

of its obligations. In the event of a default, Sections 1.01 and 2.08 of the Term 

Loan permitted defendant to charge "default interest" on the principal balance 

at the "default rate" of 24% per year. In addition, Section 10.09 stated in 

pertinent part that 

[n]o modification, amendment or waiver of any 

provision of [the Term Loan] shall in any event be 

effective unless the same shall be in writing and signed 

by [defendant] and then such waiver or consent shall be 

effective only in the specific instance and for the 

purpose for which given.

Plaintiff did not make timely interest payments on the Term Loan in 

January, February, and March 2016. On January 19, 2016, plaintiff agreed to 

sell the Lambertville property. In that same month, it also received a 

commitment to refinance a portion of the Term Loan. Plaintiff then advised 

defendant that it intended to use the funds from these transactions to pay off the 

entire balance of the loan. On February 29, 2016, defendant gave plaintiff a 

written payoff statement. This statement calculated interest at the 12% non-
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default interest rate, and did not charge plaintiff for any default interest at the 

24% default rate.

On March 10, 2016, plaintiff completed the refinance and paid $2.1 

million to defendant. Defendant accepted the payment and discharged the 

mortgage it had been holding on the Barnegat property. However, defendant did 

not apply the $2.1 million in accordance with the terms of its February 29 payoff 

statement. Instead, defendant recalculated past due interest to include default 

interest at the 24% rate and applied $70,000 of the payment to default interest 

that allegedly accrued in January and February instead of applying it to the Term 

Loan balance. Plaintiff protested defendant's imposition of the default interest.

On April 6, 2016, the parties' representatives, including defendant's vice 

president, Michael Giannone, and plaintiff's trustee, Louis Mercatanti, 

participated in a telephone conference call to resolve the dispute. On that date, 

Giannone sent the following email to Mercatanti and Kenneth Zeng, another of 

plaintiff's representatives:

Gentlemen,

Per our discussion, [defendant] is willing to put off the 

accrued default interest owed until the loan is repaid in 

full. You will continue to pay us monthly interest 

payments on the loan balance assumed no accrued 

interest was applied at the time of the loan pay down. 

If the loan at any time is in default again between now 
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and the maturity date of June 30, 2016, you will be 

responsible for the accrued default interest. If you pay 

[defendant] off with no further default [defendant] will 

agree to waive such accrued default interest at such 

time.

Thank you

Mike Giannone

Vice President

Revere Capital

Three minutes later, Mercatanti responded by email, and stated: 

Thanks Mike, look forward to getting this loan repaid 

asap.

Lou

Later that afternoon, Giannone sent Mercatanti and Zeng a second email 

confirming the terms of the resolution. In pertinent part, this email stated:

Per our discussion, due to lack of payment, starting 

January 1, 2016, your loan in the amount of [$3.5 

million] was placed in default. According to the loan 

docs, the default interest rate is set at 24%, resulting in 

$140,000 in accrued default interest between January 

2016 and the time a principal pay down on March 10, 

2016, at which time [defendant] applied the principal 

pay down to $70,000 of accrued interest and $7000 in 

late fees before being applied to the principal balance, 

resulting in a loan balance of [$1.477 million] on 

3/10/16.

[Defendant] has agreed to delay the $70,000 accrued

default interest payment until the loan maturity date of 

June 30, 2016. If at any time the loan, during the 

forbearance period, goes into default as a result of 
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either non-payment, maturity, or any other covenants 

described in the loan documents, [defendant] will 

require that the $70,000 be paid in full in addition to 

accrued interest on the $70,000 at 12%. If the loan is 

repaid between now and the June 30th maturity date 

with no default in any way, [defendant] is willing to 

forgive that $70,000 default interest payment.

After the parties' exchange of emails, plaintiff paid interest on the Term Loan at 

the non-default rate on the principal balance. It did not default on the loan in 

any way. 

Although neither of his April 6, 2016 emails say this, Giannone later 

claimed in a certification that he "never intended [his April 6 email] to be [a] 

final and binding modification of the Term Loan." Instead, he asserted that he 

intended that the "proposed terms" set forth in the emails "could form the basis 

of a formal written forbearance agreement that could later be drawn up, reviewed 

by counsel and - if acceptable - signed by the parties." He explained that "[t]his 

is how this type of commercial transaction is handled in . . . the ordinary 

course[.]" However, Giannone never expressed this "intent" to either Mercatanti 

or Zeng. Although the parties later exchanged drafts of a more formal 

forbearance agreement, they never agreed upon the language. And, in any event, 

plaintiff complied with the terms set forth in Giannone's April 6 emails.
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In order to close out the loan, plaintiff proceeded with the sale of the 

Lambertville property. In response to a request by plaintiff, defendant sent it a 

payoff statement on May 19, 2016. Contrary to the representations set forth in 

Giannone's April 6 emails, the statement included $109,377.33 for default 

interest, and credited $70,000 from plaintiff's prior $2.1 million payment toward 

the principal balance against the default interest. Defendant now claimed that 

plaintiff owed $1,599,308, rather than $1,489,387.74,1 on the principal balance.

Plaintiff objected to paying that amount, but defendant refused to 

discharge the Lambertville mortgage in order to enable plaintiff to sell the 

property. On May 25, 2016, the Chancery Division denied plaintiff's motion for 

a declaration that it did not owe the default interest, without prejudice to its right 

to seek to recover any default interest paid to defendant at the closing. Plaintiff 

then sold the Lambertville property and paid defendant the payoff balance, 

including the disputed default interest. 

As a result of this payment, plaintiff alleged that defendant received 

$102,920.26 more than it should have received after the parties' April 6 

agreement. It filed a one-count complaint against defendant, and asserted that 

 

11

 This balance included the prior $1.477 million balance, plus $12,387.74 in 

interest accruing at the 12% non-default rate.
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defendant breached the parties' agreement that all default interest would be 

waived if plaintiff committed no further defaults and paid the principal balance 

by June 30, 2016. Following discovery, both parties filed motions for summary 

judgment.

On September 29, 2017, Judge Troncone granted plaintiff's motion, and 

denied defendant's cross-motion. In his thorough written decision, the judge 

explained that he found

no genuine disputes as to the material facts in this case. 

Plaintiff missed three loan payments, the parties 

exchanged emails indicating the default interest would 

not accrue if the new conditions set forth were met, 

[p]laintiff upheld its end of the agreement by paying off 

the loan, [d]efendant breached the terms of the email 

communication by requiring default interest, and 

[p]laintiff incurred monetary losses as a result. The 

[c]ourt finds the April 6, 2016 emails constitute a 

writing in light of the modern trend of New Jersey 

[c]ourts to recognize[] electronic communications as 

writings. The [c]ourt is further satisfied the email 

signature of Mr. Giannone constituted a signature by 

the lender as required in the Term Loan. Thus, the 

emails did constitute an effective modification of the 

Term Loan Agreement. The facts clearly demonstrate 

[d]efendant breached the terms of that modification.

Judge Troncone also concluded that the emails were sufficient to meet the 

requirements of the Statute of Frauds under N.J.S.A. 25:1-5. This appeal 

followed.
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On appeal, defendant argues that summary judgment was inappropriate 

because there was "a genuine issue of material fact existed as to whether the 

emails relied upon [by] plaintiff constituted a final, agreed, executed, extension 

and modification of the existing loan documents." Defendant also alleges that 

the email exchange: was insufficient "to form an agreement to modify and 

extend the fully executed and integrated loan documents"; violated the Statute 

of Frauds; and did not contain sufficient consideration to support a valid 

contract. 

Our review of a ruling on summary judgment is de novo, applying the 

same standard as the trial court, namely, the standard set forth in Rule 4:46-2(c). 

Conley v. Guerrero, 228 N.J. 339, 346 (2017). Thus, we consider, as the trial 

judge did, whether "the competent evidential materials presented, when viewed 

in the light most favorable to the non-moving party, are sufficient to permit a 

rational factfinder to resolve the alleged disputed issue in favor of the nonmoving party." Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting 

Brill, 142 N.J. at 540). If there is no genuine issue of material fact, we must 

then "decide whether the trial court correctly interpreted the law." Massachi v. 

AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007) (citing Prudential 

Prop. & Cas. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)). We 
10 A-1250-17T3

accord no deference to the trial judge's conclusions on issues of law and review 

issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

Having considered defendant's contentions in light of the record and 

applicable legal principles, we are satisfied that Judge Troncone properly 

granted summary judgment to plaintiff and affirm substantially for the reasons 

expressed in his September 29, 2017 written opinion. We add the following 

comments.

It is well established that

"[a] contract arises from offer and acceptance, and must 

be sufficiently definite 'that the performance to be 

rendered by each party can be ascertained with 

reasonable certainty.'" Weichert Co. Realtors v. Ryan, 

128 N.J. 427, 435 (1992) (quoting West Caldwell v. 

Caldwell, 26 N.J. 9, 24-25 (1958)). "A written contract 

is formed when there is a 'meeting of the minds' 

between the parties evidenced by a written offer and an 

unconditional, written acceptance." Morton v. 4 

Orchard Land Trust, 180 N.J. 118, 129-30 (2004) 

(quoting Johnson & Johnson v. Charmley Drug Co., 11 

N.J. 526, 538-39 (1953)). 

[Cumberland Farms, Inc. v. New Jersey Dep't of Envtl. 

Prot., 447 N.J. Super. 423, 439 (App. Div. 2016).]

After forming a contract, the parties "may by mutual assent, modify it." 

Cnty. of Morris v. Fauver, 153 N.J. 80, 99 (1998) (citing Bohlinger v. Ward & 

Co., 34 N.J. Super. 583, 587 (App. Div. 1955)). "A modification can be proved 
11 A-1250-17T3

by 'an explicit agreement to modify or by the actions and conduct of the parties 

as long as the intention to modify is mutual and clear.'" Wells Reit II-80 Park 

Plaza, LLC v. Dir. Div. of Taxation, 414 N.J. Super. 453, 466 (App. Div. 2010) 

(quoting DeAngelis v. Rose, 320 N.J. Super. 263, 280 (App. Div. 1999)). Parties 

to a contract may orally agree to modify contract provisions, even when the 

original agreement precludes oral modifications. Sodora v. Sodora, 338 N.J. 

Super. 308, 312 (Ch. Civ. 2000).

Applying these principles, we conclude that Judge Troncone correctly 

determined that the parties agreed that defendant would waive default interest if 

plaintiff committed no further defaults and paid off the loan by June 30, 2016. 

These were the specific terms set forth in Giannone's first email on April 6, and 

Mercatanti unequivocally accepted them in his reply email three minutes later. 

Thereafter, Giannone sent a second email confirming that the default interest 

had been waived, as indicated in the revised payoff figure for the principal 

balance. It is also undisputed that plaintiff thereafter made its payments on time, 

thus avoiding any further defaults. Under these circumstances, the April 6 

modification was clearly enforceable.

The judge correctly rejected defendant's contention that the modification 

was not valid because it was not "in writing" and "signed" as required in the 
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Term Loan, and by the Statute of Frauds. Here, Giannone and Mercatanti sent 

each other emails which, when printed, were clearly "writings." Giannone ended 

his email by typing his name, title, and contact information, with Mercatanti 

closing his with the less formal "Lou." 

There is no doubt that both Giannone and Mercatanti had full authority to 

negotiate and consummate the resolution embodied in their email exchange. 

While it is true that neither party actually "signed" a separate written document 

embodying the terms set forth in the emails, to conclude that no modification 

occurred based on this omission amounts to exalting form over substance. See

Historic Smithville Dev. Co. v. Chelsea Title & Guar. Co., 184 N.J. Super. 282, 

293 (Ch. Div. 1981) (holding that a court will look "to get at the substance of 

things, and to ascertain, uphold, and enforce rights and duties which spring from 

the 'real' relations of the parties. It will never suffer the mere appearance and 

external form to conceal the true purposes, objects, and consequences of a 

transaction"), aff'd, 190 N.J. Super. 567 (App. Div. 1983).2

 

2

 For these same reasons, we also reject defendant's Statute of Frauds 

contention. Under N.J.S.A. 25:1-5(f) and (g), contracts "to loan money" and 

"agreement[s] by a creditor to forbear from exercising remedies pursuant to a 

contract" are required to be in writing. As discussed above, however, the emails 

exchanged by the parties constituted the "writing" necessary to meet this 

requirement.
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Defendant also argues that summary judgment was inappropriate because 

the judge failed to consider Giannone's claim that he intended that the 

modification embodied in the April 6 email exchange would not become "final" 

until after the parties negotiated and signed a separate, written forbearance 

agreement. We disagree. 

"A contracting party is bound by the apparent intention he or she 

outwardly manifests to the other party. It is immaterial that he or she has a 

different, secret intention from that outwardly manifested." Cumberland Farms, 

447 N.J. Super. at 440 (quoting Hagrish v. Olson, 254 N.J. Super. 133, 138 

(App. Div. 1992)). Neither of Giannone's April 6 emails conditioned the waiver 

of the default interest on the parties subsequently reducing its terms to writing 

in a separate document. Instead, the emails clearly state that defendant would 

waive the default interest if plaintiff had no further defaults and paid off the 

loan. As noted above, plaintiff met both of those requirements.

Finally, defendant argues for the first time on appeal that there was no 

consideration to support the agreement waiving the default interest. However, 

we normally "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 
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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)). Neither of those exceptions applies to this 

case.

In any event, "[a]ny consideration for a modification, however 

insignificant, satisfies the requirement of new and independent consideration." 

Oscar v. Simeonidis, 352 N.J. Super. 476, 485 (App. Div. 2002). Thus, "[i]f the 

consideration requirement is met, there is no additional requirement of gain or 

benefit to the promisor, loss or detriment to the promisee, equivalence in the 

values exchanged, or mutuality of obligation." Ibid. (quoting Shebar v. Sanyo 

Bus. Sys. Corp., 111 N.J. 276, 289 (1988)). 

Defendant's argument that consideration was lacking ignores the fact that 

after it attempted to impose default interest in March 2016, the parties were 

poised for litigation. From the prompt manner in which both parties addressed 

the dispute thereafter, it is clear that each wanted to expeditiously resolve the 

matter so they could continue to enjoy the benefits of their business relationship. 

The modification enabled them to do that while avoiding the time and expense, 

for the time being, of litigation. Thus, there was sufficient consideration to 

support the formation of a contract.
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Affirmed.