Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 16, 2026 Get Citation Alerts Download PDF Add Note

Paradigm Hedge, LLC v. Mary Ann Folchetti

New Jersey Superior Court Appellate Division

• Citations: None known
• Docket Number: A-2100-24

• Precedential Status: Non-Precedential

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (11.8K)

• PDF

Combined Opinion

NOT FOR PUBLICATION WITHOUT THE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-2100-24

PARADIGM HEDGE, LLC, and
PARADIGM DEVIATION, LLC,

Plaintiffs-Appellants,

v.

MARY ANN FOLCHETTI,
Individually and as EXECUTRIX
OF THE ESTATE OF MARIE
CERLIONE, MICHAEL
FOLCHETTI, ASHLEY L.
FOLCHETTI, and JAMES
FOLCHETTI,

Defendants-Respondents.

---

Argued December 17, 2025 – Decided March 16, 2026

Before Judges Smith and Jablonski.

On appeal from the Superior Court of New Jersey,
Law Division, Monmouth County, Docket No. L-
2934-18.

Michael Confusione argued the cause for appellants
(Hegge & Confusione, LLC, attorneys; Michael
Confusione, on the briefs).
Louis E. Granata (Louis E. Granata, PC) argued the
cause for respondents.

PER CURIAM

Plaintiffs appeal from a Law Division order requiring them to pay

attorney's fees and costs to defendants following the dismissal of their matter

and the entry of judgment in defendants' favor. While we agree with the trial

court's finding that plaintiffs defaulted on their contractual payment obligation

to defendants, we disagree with the amount of fees awarded. Accordingly, we

affirm the trial court's decision to award attorney's fees but remand the matter

to the trial court to modify the fees to reflect only that work attributable to

defendants' efforts to obtain their judgment.

I.

In February 2014, plaintiffs agreed to sell and defendants agreed to

purchase (the agreement) an eleven-acre property in Holmdel conditioned on at

least six acres of that property being clear of protected wetlands and subject to

plaintiffs' responsibility to pay for certain environmental remediation.

Separately, the parties executed a $500,000 mortgage note on March 21,

2016 ("Note"). The Note included this language under a subsection titled

"Default":

A-2100-24
2
If [plaintiffs] fail [] to make any payment required by
this Note within (30) thirty days after the due date,
[defendants] may declare [plaintiffs] in [d]efault on
the [m]ortgage and this Note. Upon [de]fault,
[plaintiffs] must immediately pay the full amount of
all unpaid principal and any other amounts due on the
[m]ortgage and this Note, [defendants'] costs of
collection and reasonable attorney['s] fees.

On April 17, 2017, the parties modified the Note to reduce the principal

from $500,000 to $200,000 and to change the accrued interest on the

obligation. The parties also specifically agreed to add the following language:

"remaining Principal of $200,000.00 less the costs and expenses of the

Remediation Work at the Property . . . plus accrued interest, shall be remitted

to [defendants] within thirty . . . days of the completion of the Remediation

Work at the Property, or March 21, 2018, whichever is sooner." The

amendment confirmed the "provisions of the [original] Note remain unchanged

and continue in full force and effect."

On July 25, 2018, defendants' counsel advised plaintiffs in a "Notice of

Default" that the remediation work that plaintiffs agreed to perform had not

been completed and the deadline for the payment under the amendment to the

Note passed. Defendants acknowledged plaintiffs sought further amendments

to the Note, but those efforts were rejected. According to that letter, if

plaintiffs failed to pay the $200,000 within thirty days of the Notice of

A-2100-24
3
Default, defendants' counsel would "enforce [his] client's rights under the Note

and Mortgage and seek attorney['s] fees and costs." Plaintiffs responded with

a lawsuit alleging breach of contract, fraud, and other claims. Defendants

counterclaimed for the outstanding balance on the Note and to foreclose on the

property.

After a bench trial, the Law Division denied plaintiffs' claims, granted

defendants' counterclaim, and awarded a $200,000 judgment to defendants

with interest. Without explanation, the trial court also denied both parties'

requests for counsel fees and costs.

Plaintiffs appealed. We affirmed the judgment but remanded to the trial

court to issue a statement of reasons limited to the issue of the entitlement to

the award of attorney's fees. Paradigm Hedge v. Cerlione, No. A-1161-21

(App. Div. May 11, 2023) (slip op. at 21).

On remand, the trial court initially observed that "[p]ursuant to the terms

of the Mortgage in the event of a default . . . plaintiffs must immediately pay

the full amount of the unpaid principal, interest, and other amounts due on the

Note and this Mortgage and the cost of collection and reasonable attorney['s]

fees." It also noted "[Rule] 4:42-9(a)(4) . . . provides for an award of

attorneys' fees and an action for the foreclosure on the Mortgage." Following

A-2100-24
4
these principles, the trial court considered the certifications provided by

counsel, made a few deductions, and ultimately awarded defendants

$71,246.97.

Plaintiffs appeal and argue the trial court mistakenly awarded attorney's

fees and costs to defendants. They assert defendants are not legally entitled to

recover these fees because plaintiffs initiated the lawsuit rather than

defendants. Additionally, they contend this litigation is not a collection action

resulting from a default under the Note and Mortgage. Finally, plaintiffs

emphasize defendants' right to recover fees and costs under the Note and

Mortgage would only be triggered if there were a declared default under the

Note- a conclusion plaintiffs argue the trial court did not make.

II.

Plaintiffs first argue the attorney's fee award was improper because the

trial court never concluded plaintiffs defaulted under the terms of the Note

and, therefore, never triggered the obligation to pay these amounts. We

disagree.

We review de novo a trial court's interpretation of a contract.

Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div.

1998). "The determination of whether a contract term is clear or ambiguous is

A-2100-24
5
a pure question of law requiring plenary review." In re Teamsters Indus. Emp.

Welfare Fund, 989 F.2d 132, 135 (3d Cir. 1993). "The plain language of the

contract is the cornerstone of the interpretive inquiry; 'when the intent of the

parties is plain and the language is clear and unambiguous, a court must

enforce the agreement as written, unless doing so would lead to an absurd

result.'" Barila v. Bd. of Educ. of Cliffside Park, 241 N.J. 595, 616 (2020)

(quoting Quinn v. Quinn, 225 N.J. 34, 45 (2016)). "[U]nambiguous contracts

will be enforced as written unless they are illegal or otherwise violate public

policy." Manahawkin Convalescent v. O'Neill, 217 N.J. 99, 118 (2014)

(quoting Leonard & Butler P.C. v. Harris, 279 N.J. Super. 659, 671 (App. Div.

1995)). The "court's task [i]s 'not to rewrite a contract for the parties better

than or different from the one they wrote for themselves.'" Globe Motor Co. v.

Igdalev, 225 N.J. 469, 483 (2016) (quoting Kieffer v. Best Buy, 205 N.J. 213,

223 (2009)). "It is well-settled that '[c]ourts enforce contracts based on the

intent of the parties, the express terms of the contract, surrounding

circumstances and the underlying purpose of the contract.'" In re Cnty. of

Atlantic, 230 N.J. 237, 254 (2017) (alteration in original) (quoting

Manahawkin Convalescent, 217 N.J. at 99) (internal quotation marks omitted).

"A party violates the terms of a contract by failing to fulfill a requirement

A-2100-24
6
enumerated in the agreement." Woytas v. Greenwood Tree Experts, Inc., 237

N.J. 501, 512 (2019).

Central to resolving this dispute is the determination of whether

plaintiffs defaulted on their payment obligations under the contract established

between plaintiffs and defendants through the Mortgage Note. We conclude

plaintiffs did, in fact, default.

Default is "the omission or failure to perform a legal or contractual duty;

[especially], the failure to pay a debt when due." Roach v. BM Motoring,

LLC, 228 N.J. 163, 176 n.4 (2017) (citing Sink v. Aden Enters., Inc., 352 F. 3d

1197, 1199 n.2. (9 th Cir. 2003)) (quoting Default, Black's Law Dictionary (7th

ed. 1999)).

In this matter, the term is defined by the language of subsection titled

"Default": "If [plaintiffs] fail [] to make any payment required by this Note

within (30) thirty days after the due date, the [l]ender may declare [b]orrower

in default on the Mortgage and this Note."

Despite the trial court's failure to explicitly use the term "default" in its

decision, the record reveals plaintiffs defaulted. Sufficient evidence was

presented to establish that plaintiffs did not fulfill their payment obligation

under the terms of the Note because they failed to make any payment due as

A-2100-24
7
required by the agreement. Specifically, under the terms of the amended Note,

plaintiffs were obligated to pay $200,000 to defendants within thirty days of

the "completion of the Remediation Work or March 21, 2018, whichever is

sooner." Plaintiffs failed to comply with both aspects.

Defendants also notified plaintiffs of their non-compliance in a "Notice

of Default," and provided plaintiffs thirty days to remedy their payment

deficiency. When plaintiffs failed to do so, defendants deemed them "in

default under the Mortgage and Note." Consequently, under the terms of the

obligation, plaintiffs were immediately required to pay the full amount of all

unpaid principal, any other amounts due on the Mortgage and Note, as well as

defendants' costs of collection and attorney's fees.

III.

Since plaintiffs defaulted in their obligation under the Note, defendants

were, therefore, entitled to recover their "costs of collection and reasonable

attorney fees." The trial judge agreed and, after making certain deductions

from the certifications in support of that request, awarded defendants

$71,246.97, or $62,090.05 for legal fees and $9,156.92 in costs.

New Jersey courts have consistently enforced contractual provisions

requiring the payment of attorneys' fees and costs. See State Dep't of Envtl.

A-2100-24
8
Protection v. Ventron Corp., 94 N.J. 473, 504 (1983) (holding that attorneys'

fees provisions are enforceable where expressly authorized by contract, statute,

or court rule) (citations omitted) On appeal, plaintiffs argue that the amount is

excessive since the award includes attorney's fees charged for matters

unrelated to work defendants did to obtain their judgment. We agree because

any charges unrelated to defendants' counsel's litigation efforts render the fee

unfair and unreasonable.

Preliminarily, we note that we will only disturb a trial court's award of

attorney's fees "'only on the rarest of occasions, and then only because of a

clear [misapplication] of discretion.'" Packard-Bamburg & Co., Inc. v. Collier,

167 N.J. 427, 444 (2001) (quoting Rendine v. Pantzer, 141 N.J. 292, 317

(1995)). Here, we acknowledge that although the trial court ostensibly

reviewed the certifications and made certain conclusory deductions, the record

is devoid of the required analysis reflecting the judicial scrutiny of the

reasonableness of the fees related to the transactions for which defendants'

counsel sought recovery.

According to the Note, upon plaintiffs' default, the unpaid principal is

accelerated and they are required to pay "costs of collection and reasonable

attorney fees." Because costs of collection and attorney's fees appear together

A-2100-24
9
in the same sentence, it is reasonable to conclude that any recoverable

attorney's fees are limited to those incurred specifically during the collection

process, rather than reimbursement for all fees paid by the prevailing party

throughout the entire representation. Our jurisprudence mandates the trial

court to scrutinize and to adjust, if necessary, the requested fees to reflect the

particular circumstances of the case to arrive at a number that is reasonable

and fair. "The ultimate goal is to approve a reasonable attorney's fee that is

not excessive." Litton Indus. Inc., Inc. v. IMO Indus. Inc., 200 N.J. 372, 388

(2009).

In assessing an award, it is well-established that trial courts must

carefully evaluate the fee's overall reasonableness. To that end, "[t]he court's

first step . . . is determining the lodestar, 'which equals the number of hours

reasonably expended multiplied by a reasonable hourly rate.'" Jacobs v. Mark

Lindsay & Son Plumbing & Heating, Inc., 458 N.J. Super. 194, 209 (App. Div.

2019) (quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)).

There are four considerations in setting the lodestar.
The first is the reasonableness of the attorney's fee,
evaluated under the factors set forth in RPC 1.5(a).
Second, the court considers the reasonableness of the
time billed by the attorney, since a party is not entitled
to [attorney's] fees for excessive and unnecessary
hours. Third, the court determines whether the award
should be decreased because the plaintiff "achieved

A-2100-24
10
limited success in relation to the relief he [or she] had
sought." Fourth, the court must decide whether the
attorney is entitled to a fee enhancement if the
attorney worked under a contingency agreement.

[Heyert v. Taddese, 431 N.J. Super. 388, 443-44 (App.
Div. 2013) (footnote omitted) (citations omitted) (first
citing Furst, 182 N.J. at 21-22; then quoting Furst, 182
N.J. at 23)].

In considering the reasonableness of the proposed attorney's fees, "the

court evaluates the 'rate of the prevailing attorney in comparison to rates "for

similar services by lawyers of reasonably comparable skill, experience, and

reputation" in the community.'" Jacobs, 458 N.J. Super. at 210 (quoting Furst,

182 N.J. at 22).

As for the reasonableness of the time billed, the trial court must consider

"whether the time expended in pursuit of the 'interests to be vindicated,' the

'underlying statutory objectives,' and recoverable damages is equivalent to the

time 'competent counsel reasonably would have expended to achieve a

comparable result.'" Ibid. (quoting Furst, 182 N.J. at 22). If after the court

establishes the lodestar fee, the court determines that an enhancement is

warranted, "'the court should consider the result achieved, the risks involved,

and the relative likelihood of success in the undertaking' to determine the

amount of [the] enhancement." Id. at 210 (quoting Furst, 82 N.J. at 23).

A-2100-24
11
Similarly, "[t]he court must not include excessive and unnecessary hours

spent on the case in calculating the lodestar." Furst, 182 N.J. at 22. Therefore,

the amount of the lodestar "may be reduced[.]" R.M. v. Sup. Ct. of N.J., 190

N.J. 1, 11 (2007).

We conclude that on remand, the trial court did not sufficiently engage

in this analysis. We are constrained, therefore, to remand the matter for a

detailed consideration of the attorney's fee award with a specific mandate the

trial court only consider those charges with a reasonable nexus to defendants'

efforts to obtain the $200,000 judgment after plaintiffs' default. We express no

view as to the reasonableness of any of those time entries and leave that to the

trial court on remand.

To the extent we have not addressed any of plaintiffs' remaining

arguments, we conclude those arguments lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part, reversed and remanded for the trial court to address the

attorney's fees award in accordance with this opinion. We do not retain

jurisdiction.

A-2100-24
12