Petition for Writ of Certiorari — J. P., Petitioner v. J. N.

APPENDIX TABLE OF CONTENTS

Appendix A: Superior Court of New Jersey,

Appellate Division, January 17, 2024

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Appendix B: Supreme Court of New Jersey,

Order, July 18, 2024

............................. 28a

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APPENDIX A

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.i:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2616-21

J.P.,

Plaintiff Appellant,

v>

J.N.,

Defendant Respondent.

Submitted December 12, 2023 Decided January 17, 2024

Before Judges Whipple, Mayer, and Enright.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-9584-21.

2a

J.P., appellant pro se.

Wilentz, Goldman & Spitzer, PA, attorneys for

respondent (John Edmund Hogan, Jr. and

Pierre Chwang, of counsel and on the brief).

PER. CURIAM

Plaintiff J.P.1 appeals from a March 18, 2022

order dismissing his complaint with prejudice and

denying his cross-motion for summary judgement

against defendant J.N. We affirm

I.

We glean the facts from the motion record.

Plaintiff is defendant’s son. In 2015, plaintiff filed a

Law Division complaint against defendant, asserting

various tort claims (underlying litigation). Following

the exchange of discovery, including expert reports,

the parties engaged in settlement negotiations

through counsel.

On September 14, 2017, as the underlying

litigation continued, defendant purchased a

condominium in Spring Lake, with a $68,250 down

payment and a $174,250 mortgage.2 The deed to the

condominium was recorded on October 10, 2017, and

1 Because the record is sealed, we use the parties’ initials. R.L’38-11.

2 Plaintiff mistakenly claims defendant purchased the condominium on

September 29, 2017

3a

titled in the name of defendant, his wife, and son, with

defendant and his wife each holding a 49.5 A interest

in the property, and defendant’s son owning the

remaining 1% interest.

The record reflects the parties and their

counsel attended a settlement conference before

Judge Mayra V. Tarantino on October 4, 2017, but

were unable to resolve the matter. Further, the record

shows the parties were scheduled to proceed to a

Lopez hearing3 on July 16, 2018. According to an

October 9, 2018 certification filed by plaintiffs former

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before the [Lopez] hearingl,] the case [was]

conferenced by Judge Tarantino,” who attempted “[t]o

address the gap between [p]laintiffs settlement

demand an defendant’s [then settlement] offer.”

Plaintiffs former counsel also stated in his

October 9 certification that during that 2018

conference, judge Tarantino “recommended

defendant provide [p]laintiffs attorney with a

schedule of assets and liabilities for attorney’s eyes

only .... to substantiate defendant’s claim that his

ability to settle was limited by his assests.” In the

same certification, plaintiffs former attorney stated,

“defendant previously sent me a financial statement

3 A Lopez hearing is meant to provide an opportunity for the "equitable claims

of opposing parties [to] be identified, evaluated and weighed” by the trial court

before determining the date upon which a plaintiff became aware of the facts

giving rise to the cause of action. Lopez v. Sawyer, 62 N.J. 267, 274 (1973)

4a

listing [(defendant’s assets and liabilities for my eyes

only. I have not shared it with my client.” Counsel also

certified that based on additional settlement

discussions on July 11, 2018 between himself and

defendant’s then attorney,4 they “communicated to

the [c]ourt ... the case was resolvedfj and the Lopez

hearing was adjourned.”

The parties were unable to finalize the terms

of a settlement until the following year, although

defendant’s attorney provided plaintiffs former

counsel with a draft settlement agreement in August

2018. Then, with no admission of liability by

defendant, the parties fully executed a confidential

agreement (CSA) on November 26, 2019.

Under the CSA, defendant agreed to pay

plaintiff the sum of $225,000, in three installments

over the course of two years. The first payment of

$120,000 was due five days after the CSA was

executed; the second installment of $52,500 was due

one year later; and the final payment of $52,500 was

due in November 2021. The CSA also provided:

[Defendant] shall maintain a Last Will

and Testament (Will) which shall

provide that [plaintiff] shall be entitled

to inherit one-third (1/3 or 33.334%) of

[defendant’s probated estate as valued

4 Defendant’s counsel during the underlying litigation also represents

defendant on the current appeal.

5a

as of the time that said Will is filed for

probate....Th the event... that any Will

... fails to contain the aforementioned

term],]... the executor or administrator

of the estate shall take the necessary

measure to enforce the requirements of

this [CSA].... It is understood that any

... expenditures, ... or actions by

[defendant] done prior to the [effective

date of the CSA] shall not be a basis to

contest the value of [defendant’s]

probated estate.

[(Emphasis added).]

Additionally, under the CSA, plaintiff agreed

to “releaset] and dischargeD” defendant

from all known and unknown charges,

complaints,

claims,

grievances,

liabilities, ... damages, actions, causes

of action... and punitive damages, of

any

nature

whatsoever,.. .which

[plaintiff] has, or may have had, against

[defendant], whether or not apparent or

yet to be discovered, or which may

hereafter develop, for any acts or

omissions related to or niisihg

from... [the

underlying

litigation]

between [the parties] during their

lifetime up to an including the

6a

[effective [d]ate [of the CSA,] but for

breach or fraud relative to this

settlement.

[(Emphasis added.]

Claims were defined under the CSA, in

part, as[A]ny and all actual... or alleged past or

present claim, action,...cause of action

and any other assertion of liability of

any kind, ... whether currently known

or unknown, ... and whether sounding

in tort,...or common law cause of action

of any sort. Without limiting the

generality of the foregoing, [(<] Claim[“]

shall include any past or current claim

in law, equity, contract, tort, ... or any

other claim ... whether known or

unknown, which [plaintiff] ... may hold

arising from any and all allegations

between the [parties] from the

beginning of time through the effective

date [of the CSA] ... which might not

have yet accrued.

[(Emphasis added).]

Finally, the CSA confirmed defendant

provided a list of assets and liabilities to plaintiffs

7a

former counsel “for [counsel’s] eyes only” before the

parties executed the CSA. Specifically, the CSA

stated­

in entering into this [CSA], the [parties]

acknowledge that they have relied upon

the legal advice of their respective

attorneys, ... that [the CSA’s] terms are

fully understood and voluntarily

accepted by them, and that, other than

the consideration set forth herein, no

promises or representations of any kind

have been made to them by the other

[p]arty. The [p]arties represent and

acknowledge that in executing this

[CSA,] they did not rely, and have not

relied, upon any representation or

statement, whether oral or written,

made by the other [p]arty or by that

other [p]arty’s ... attorneys with regard

to ... this [CSA] or otherwise but for the

provision of [defendant’s balance sheet

to ... [plaintiffs attorney] for his eye’s

only, at the recommendation and advice

of the [cjourt, which was provided ...to

enable

[plaintiff]

to

discern

[defendant’s] liquidity and ability to pay

a settlement.

[(Emphasis added.)]

8a

Consistent with the CSA, defendant made his

last settlement payment to plaintiff on November 19,

2021. Less than a month later, plaintiff filed a

complaint against defendant, alleging defendant

"perpetrated a fraudulent conveyance" by purchasing

the Spring Lake condominium in September 2017 "in

clear anticipation of the [October 4, 2017] settlement

conference with Judge Tarantino," knowing the judge

"previously requested that ... [defendant produce his

balance sheet for the conference." Plaintiff also

alleged defendant bought the condominium, knowing

"his liquidity for paying a settlement could be

determined" at the October 4 conference. Further,

plaintiff claimed that given the timing of defendant's

purchase, "[a]ny reasonable person would agree

[defendant] did this to appear less liquid to pay a

higher settlement amount" to plaintiff. Additionally,

plaintiff asserted, "[biased on the financial

informationt defendant provided to plaintiffs

attorney, p]laintiff lowered his demand" for

settlement, and "was deceived into a deficient

settlement." Finally, plaintiff alleged defendant

"breached the terms of the [CSA] by not providing

proof that he created, and [wa]s maintaining a Last

Will [and] Testament."

Defendant disputed plaintiffs recollection of

when Judge Tarantino recommended that defendant

disclose his financial circumstances, claiming Judge

Tarantino made this recommendation in June 2018,

weeks before the July 2018 Lopez hearing was

9a

scheduled to proceed, and several months after

defendant bought the condominium.5

In January 2022, defendant's attorneys sent a

"frivolous litigation letter" to plaintiffs counsel, per

Rule 1-4-8(b), asking that plaintiff withdraw his

complaint with prejudice.

Plaintiff declined the

request. The next month, defendant moved to dismiss

plaintiffs complaint pursuant to Rule 4:6-2(e).6

Plaintiff cross-moved for summary judgment against

defen dant, arguing plaintiff was fraudulently induced

to enter into the CSA.

On March 18, 2022, Judge Robert H. Gardner

heard argument on the parties' cross-applications

after briefly summarizing the facts of the case. The

judge noted the underlying litigation was resolved

under a "confidential agreement ... in November of

2019 ... [and] the last payment [due under the CSA]

was made ... [i]n November of 2021." The judge

continued5 On appeal, defendant contends plaintiffs own attorney confirmed in his October

9, 2018 certification that Judge Tarantino "suggested [the] financial disclosureD

a few weeks prior to the July 16, 2018" Lopez hearing, and "[i]ndeed, the

disclosure was made in June 2018, not 2017[,] as pled by [pjlaintiff." Defendant

also argues plaintiff mistakenly relies on a "supposed April 11, 2019 draft brief

prepared by former counsel for [p]laintiff to support his faulty argument that

Judge Tarantino made the recommendation in 2017 in anticipation of the October

4, 2017 settlement conference.

6 This Rule allows for dismissal of a complaint for "failure to state a claim upon

which relief can be granted." R. 4<6-2(e).

10a

The allegations in this case indicate

that ... defendant purchased a

condo [minium] on [September 14,

2017]. ... [P]laintiff claims it was ...

bought with money that could have been

used in settlement [20] 15 case, and it

was, apparently ... not disclosed during

the pendency of the 2015 case.

Defense disputes this.

In fact,

[defendant] indicates [the Spring Lake]

condo [minium] was disclosed as part of

the ... June 2018 disclosure made on the

balance sheet as a result of ... Judge

Tarantino ... trying to [effectuate] ...

settlement negotiations that apparently

occurred, and ... the condo [minium] was

disclosed ... months post-purchase of

the condo [minium].

Defendant's counsel responded to the judge's

summary, stating, "I would like to correct [the record]

that... plaintiff does not dispute ... that we accurately

disclosed the condo [minium]. If we go to [plaintiffs]

opposition brief,... they say .. .defendant represented

that he did own a condo [minium] that was valued at a

dollar amount. So that disclosure was accurate."

Defendant's attorney highlighted this position again

during argument, asserting defendant's Spring Lake

condominium was

"accurately disclosed on

[defendant's] balance sheet" and "[t]here[ were] no

Ila

allegations in any of the [parties’ submissions] that

anything was hidden."

Plaintiffs current counsel countered that

"[w]hether the condo [minium] was disclosed [to

plaintiffs former counsel] or not [before entering into

the CSA wa]s irrelevant." Counsel further argued,

"[t]he date of the acquisition" of the condominium

"[a]nd the fact that there were nondisclosures of

information" from defendant "unfairly and unduly

pushed ... plaintiff into a direction where he never

would have settled if... there were full disclosure[s]."

Judge Gardner challenged plaintiffs argument,

stating the condominium "was on the balance sheet at

the time that the underlying case was settled," and

"whether it was a liquid ... asset, or in this case not

...a liquid asset," "it was disclosed, so what's

[plaintiffs] point?" Plaintiffs counsel responded,

"disclosure is one thing, but the ... actual value of the

disclosted asset], ... is really what we're talking about

here," adding, "the date of the purchase was not

disclosed, and that's significant," and "[t]he location

was not disclosed either."

Judge Gardner disagreed, stating, ”[i]t doesn't matter

because [the condominium] was listed as an asset."

Further, the judge noted plaintiffs former counsel

could have conducted "an asset check to see whether

... the defense ha[d] anything worth executing

against, right?" The judge also highlighted this point,

12a

rhetorically asking whether plaintiffs former counsel

"ha[d] an obligation to say, [']wait, where is that

[condominium] located and what's the address so I can

do an asset check, ['] so [plaintiff could] figure out what

[the] value ... [wa]s?" Additionally, Judge Gardner

observed the condominium could have been "a milliondollar home ... with no equity in" it, so it would "fall[]

upon ... plaintiff to do . . . due diligence before ...

agree[ing] to settle a case."

After noting the parties’ litigation started in

2015 but did not end until 2019, the judge concluded

"[t]he onus [wa]s on ... [plaintiffs] lawyer to have done

what they should have done," by determining "the

value of how much ... defendant [wa]s worth so they

c[ould] figure out [a settlement] payment." Rather

than "now ... turnting] around and say[ing] somehow[,

'] we didn't know the value of [the condominium']." The

judge also reiterated plaintiffs former counsel was

"under an obligation to do what they should have done

with regard to ... plaintiff and the [net worth] of ...

defendant," adding, "I did professional malpractice

work, [as a] defense attorney, so ... I understand the

issues."

Next, the judge found plaintiff "could have

[opted] not [to] settle the case either and gone to

judgment ... [but he] didn't do it." This remark

prompted the following exchange-

13a

[Plaintiffs Counsel] Your Honor, we

could talk about the conveyance now....

[Tlhis is another example of the

defendant hiding assets.

The

conveyance was done—let me get the

date.

[Judge Gardner]- The [condominium]

property was bought on [September 14,

2017], at least according to what was

provided to me, which was before the

settlement conference of the 2015 case.

That... disclosure was part ofa balance

sheet that was made and was given to

the plaintiffs attorney i]n ... June of

2018, ... post-purchase of the

condo[minium].

[Plaintiffs Counsel]- Right, Judge, so

the ... issue here is the money[,] or some

of the money could have come to ...

plaintiff at that date of conveyance,

[September 14, 2017,] if it were

disclosed ... And ... not disclosing it, it

obviously [was] defendant hiding assets

for the purpose of lowering his ... gross

assets to get a lower settlement ... But

that's all part and parcel of the

mentality of... defendant in evading the

true value of his estate, ... and that's

really what we're talking about.

14a

[(Emphasis added).]

Plaintiffs counsel also asserted that instead of

"get[ting] a loan to pay ... plaintiff," defendant "got a

loan to buy a piece of real estate."

At the conclusion of the hearing, Judge

Gardner stated, "I don't find that there's a breach [of

the CSA] or fraud related to the settlement." The

judge also found "plaintiff [wa]s not a creditor" under

the Uniform Fraudulent Transfer Act (UFTA),

N.J.S.A. 25^2-20 to -34.7 The judge reasoned, "[a]ll

settlement payments were made to ... plaintiff."

Additionally, the judge concluded plaintiffs

fraudulent transfer claim under the UFTA was barred

by the statute of limitations8, explaining defendant

purchased the condominium in September 2017,

disclosed the purchase "on the balance sheet at the

time that the [2015] case was settled," and then

plaintiff waited until December 2021 to allege

defendant "perpetrated a fraudulent conveyance" by

7 The UFTA was amended and renamed the Uniform Voidable Transactions Act

(UVTA), N.J.S.A. 25:2-20 to -36, effective August 10, 2021. See L. 2021, c. 92 §1.

Thus, although the UFTA was in effect when, defendant purchased his

condominium in 2017, the parties' cross-applications were decided after the

enactment of the amended statute. Accordingly, we rely on the amended statute

for our legal analysis, despite any references to the UFTA in the parties' briefs,

or by the judge in his March 18, 2022 oral opinion. We also use the term, "UFTA,"

interchangeably with the term, "UVTA," solely for the purpose of this opinion,

given the parties’ repeated use of the former term.

8 The statute of limitations for a fraudulent transfer is "not later than four

years after the transfer wife made ... or, if later, iipt lafei’ than one year after

the transfer ... wts disepyered by the claimant."

25:2-31(a).

15a

purchasing the condominium. Judge Gardner also

rejected plaintiffs fraudulent inducement claim,

explaining that for plaintiff to prevail on this claim,

there ha[d] to be a material

misrepresentation of known facts, with

knowledge that the fact [wa]s false, with

the intention to get the [other] person to

rely on that fact, [and] with damages

caused by the . ... person [making the

material misrepresentation].

The

property was disclosed in this particular

case. The fact that [the condominium]

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neither here nor there. That [is] on the

onus of the ... plaintiff and plaintiffs

counsel to do their appropriate due

diligence.

...[T]hey ha[d] an obligation to go out

and verify ... what the defendant0 was

claiming was the value of the ... [Spring

Lake] property. [As] I said, it could ...

be a million-dollar piece of property

with a [$]999,999 mortgage on it. It

could have no equity at all [i]n it. So[,]

I'm not convinced. The fraudulent

inducement [claim] does[ not] apply

here.

Lastly, Judge Gardner denied plaintiffs cross­

motion for summary judgment, stating, "[g]iven

16a

the...[CSA] as framed, I don't find there's a basis for

summary judgment to be granted ... [to] plaintiff."

II.

On appeal, plaintiff, now self-represented,

raises nine overlapping arguments. First, he

contends^

[D]efendant committed fraud by

transferring

$75,000

into

a

condominium, while transferring 50.5%

ownership to his wife and other son,

days prior to the [October 2017]

settlement conference [and] then

misrepresenting the condominium as

solely [defendant's] on his balance

sheet [,] to receive consideration for the

full mortgage obligation ... while

deliberately increasing his debt[-]to[] income ratio to minimize his credit

availability for securing a loan to pay a

settlement[, and] concealing the date of

the transference and location, [then]

waiting until [six] days after the

settlement conference to record the deed

and the mortgage.

Next, plaintiff argues Judge Gardner erred in:

(1) "not permitting discovery to take place" before

granting defendant's motion to dismiss; (2) "failing to

17a

consider ... defendant's intent to deceive" plaintiff; (3)

"disregard [ing] the entire premise of ... plaintiffs

argument concerning defendant's misrepresentation,

as well as concealment" and "erroneously tfaking] the

position that [because] the [condominium] was listed

on ... defendant's balance sheet, ... defendant made a

full disclosure"; (4) "disregard[ing] the fact... the date

of the settlement conference was a fact in dispute,"

and then "sidling] with the defense's version [of when

Judge Tarantino recommended defendant disclose his

assets and liabilities] without ... [a] preponderance of

evidence, or discovery"; (5) "admitting his bias as a

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argument on March 18, 2022; (6) "suppress [ing]

material communications in not permitting oral

argument on many of the issues" by "emphatically

stating he 'read everything'"; (7) finding "the [UFTA]

did not apply"; and (8) "fail[ing] to adjudicate the

breach of contract cause of action alleged in

[plaintiffs] complaint," considering "[d]efendant ha[d]

an implied covenant of good faith and fair dealing as

it relateld] to the [CSA], in providing .. . plaintiff with

a copy of his Will."9

9 Plaintiff raises additional arguments for the first time in his reply brief, which

we do not consider. "Raising an issue for the first time in a reply brief is

improper." Borough ofBerlin r. Remington & Vernick Eng'rs, 337 N.J. Super.

590, 596 (App. Div. 2001) (citing State v. Smith, 55 N.J. 476, 488 (1970)); see

also Pfessler & Verniem, cmt. on R. 2:6-5 (2023) (noting the "impropriety of

using a reply brief to add issues not theretofore raised"); State v. Lenihan, 427

N.J. Super. 499, 504 n. 2, (App. Div. 2012) ("Rule 2:6'5 precludes the use of a

reply brief to add issues not previously raised in the formal brief.").

18a

Based on our review of the record and the

applicable principles of law, we are satisfied plaintiffs

arguments are without merit. R. 2-ll-3(e)(l)(E). We

add the following comments.

We review "Rule 4'-6‘2(e) motions to dismiss for

failure to state a claim upon which relief can be

granted" de novo. Baskin v. P. C. Richard & Son, 246

N.J. 157, 171 (2021) (citing Dimitrakoupolos v. Borrus

Goldin, 237 N.J. 91, 108 (2019)). "A reviewing court

must examine 'the legal sufficiency of the facts alleged

on the face of the complaint,' giving the plaintiff the

benefit of 'every reasonable inference of fact.'" Ibid,

(quoting Dimitrakopoulos, 237 N.J. at 107). A court

must search the complaint thoroughly "and with

liberality to ascertain whether the fundament of a

cause of action may be gleaned even from an obscure

statement of claim, opportunity being given to amend

if necessary."

Ibid, (quoting Printing MartMorristown v. Sharp Elecs. Corp., 116 N.J. 739, 746

(1989)). "[I]f the complaint states no claim that

supports relief, and discovery will not give rise to such

a claim, the action should be dismissed." Ibid.

(quoting Dimitrakopoulos, 237 N.J. at 107). A motion

to dismiss under Rule 4^6-2 is limited to "the pleadings

themselves." Dimitrakopoulos, 237 N.J. at 107

(quoting Roa v. Roa, 200 N.J. 555, 562 (2010)).

"[A] dismissal with prejudice is 'mandated

where the factual allegations are palpably insufficient

to support a claim upon which relief can be granted,'

19a

or if 'discovery will not give rise to such a claim.'" Mac

Prop. Grp. LLC & The Cake Boutique LLC v. Selective

Fire & Cas. Ins. Co., 473 N.J. Super. 1, 17 (App. Div.

2022), cert, denied sub nom. 252 N.J. 258 (2022), and,

252 N.J. 261 (2022) (first quoting Rieder v. State, 221

N.J. Super. 547, 552 (App. Div. 1987), then quoting

Dimitrakopoulos, 237 N.J. at 107).

We also recognize New Jersey has a strong

public policy favoring the settlement of litigation.

Gere v. Louis, 209 N.J. 486, 500 (2012); Brundage v.

Est. of Carambio, 195 N.J. 575, 601 (2008) (stating

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policy"). "This policy rests on the recognition that

'parties to a dispute are in the best position to

determine how to resolve a contested matter in a way

which is least disadvantageous to everyone.'" Gere,

209 N.J. at 500 (quoting Impink ex rel. Baldi v.

Reynes, 396 N.J. Super. 553, 563 (App. Div. 2007)).

"In furtherance of this policy, our courts 'strain to give

effect to the terms of a settlement wherever possible.'"

Brundage, 195 N.J. at 601 (quoting Dep't of Pub.

Advoc. v. N.J. Bd. ofPub. Utils., 206 N.J. Super. 523,

528 (App. Div. 1985)). Moreover, a court must be

careful not to make a better contract for the parties

than the one they made for themselves. Kotkin v.

Aronson, 175 N.J. 453, 455 (2003).

"A settlement agreement between parties to a

lawsuit is a contract." Nolan v. Lee Ho, 120 N.J. 465,

472 (1990). Thus, such agreements "will be honored

20a

absent a demonstration of fraud or other compelling

circumstances.” Cumberland Farms, Inc. v. N.J. Dep't

of Env't Prot., 447 N.J. Super. 423, 438 (App. Div.

2016) (citation omitted).

"[F]raud is never presumed but must be

established by clear and convincing evidence." Weil v.

Express Container Corp., 360 N.J. Super. 599, 613

(App. Div. 2003). "A court may dismiss a complaint

alleging fraud if 'the allegations do not set forth with

specificity, nor do they constitute as pleaded,

satisfaction of the elements of legal or equitable

fraud."' State, Dep't of Treasury, Div. of Inv. ex rel.

McCormac v. Qwest Commc'ns Inti, Inc., 387 N.J.

Super. 469, 484-85 (App. Div. 2006) (quoting Levinson

v. D'Alfonso & Stein, 320 N.J. Super. 312, 315 (App.

Div. 1999)). To prove common-law fraud, a party must

demonstrate- "(1) a material misrepresentation of a

presently existing or past fact; (2) knowledge or belief

by the [person making the statement] of its falsity; (3)

an intention that the other person rely on it; (4)

reasonable reliance thereon by the other person; and

(5) resulting damages." Allstate N.J. Ins. Co. v.

Lajara, 222 N.J. 129, 147 (2015).

Next, we are mindful "[t]he purpose of the

[UFTA] is to prevent a debtor from placing his or her

property beyond a creditor's reach.” Gilchinsky v.

Nat'l Westminster Bank, 159 N.J. 463, 475 (1999)

(citing In re Wintz Cos., 230 B.R. 848, 859 (8th Cir.

1999)). "Underlying the Act is the notion that a debtor

21a

cannot deliberately cheat a creditor by removing [the

debtor's property] from the 'jaws of execution.'" Ibid.

(citing Hlei® v.

251 F. Supp. 1, 2 (E.D.N.Y.

1966)). "[F]raudulent conveyance claims ... allow the

creditor to undo the wrongful transaction so as to

bring the property within the ambit of collection."

Ibid.

N.J.S.A. 25-2-25 governs fraudulent transfers

as to present or future creditors and states, in part-

a. A transfer made ... by a debtor is

voidable as to a creditor, whether the

creditor's claim arose before or after the

transfer was made[,] ... if the debtor made

the transfer or incurred the obligation(1) With actual intent to hinder, delay, or

defraud any creditor of the debtor; or

(2) Without receiving a reasonably

equivalent value in exchange for the

transfer or obligation, and the debtor-

(a) Was engaged or was about to engage

in a business or a transaction for which the

remaining assets of the debtor were

unreasonably small in relation to the business

or transaction; or

(b) Intended to incur, or believed .... the

22a

debtor would incur, debts beyond the debtor's

ability to pay as they become due.

[N.J.S.A. 25:2-25(a).]

"A creditor making a claim for relief under

[N.J.S.A. 25*2-25(a)] has the burden of proving the

elements of the claim for relief by a preponderance of

the evidence." N.J.S.A. 2-25(b).

N.J.S.A. .25-2-27 allows for a transfer or

obligation to be voidable as to a present creditor and

provides, in parta. A transfer made ... by a debtor is

fraudulent as to a creditor whose claim arose

before the transfer was made ... if the debtor

made the transfer ... without receiving a

reasonably equivalent value in exchange for

the transfer ... and the debtor was insolvent at

that time or ... became insolvent as a result of

the transfer ...

b. A transfer made by a debtor is fraudulent as

to a creditor whose claim arose before the

transfer was made if the transfer was made to

an insider for an antecedent debt, the debtor

was insolvent at that time, and the insider had

reasonable cause to believe that the debtor was

insolvent.

23a

[N.J.S.A. 25:2-27 (a) and (b).J

"[A] creditor making a claim for relief under ...

[N.J.S.A. 25:2*27] has the burden of proving the

elements of the claim for relief by a preponderance of

the evidence.” N.J.S.A. 25:2-27(c).

Under the plain language of the UFTA, a

creditor is defined as "a person who has a claim.”

N.J.S.A. 25:2-21. A debtor is defined as "a person who

is liable on a claim.” Ibid. Claim is defined as "a right

to payment." Ibid.

"A court applying [the UFTA] must undertake

a fact-sensitive inquiry, analyzing the circumstances

and the terms of the transfer at issue.” Motorworld,

Inc. v. Benkendorf, 228 N.J. 311, 326 (2017). "Factors

to be considered in determining fraudulent intent, i.e.

'badges of fraud,' include whether ... '[t]he transfer ...

was disclosed or concealed.'" Jecker v. Hidden Valley,

Inc., 422 N.J. Super. 155, 164 (App. Div. 2011)

(quoting N.J.S.A. 25:2*26(c)).

Governed by these standards, we discern no

basis to disturb the March 18, 2022 order. Here, the

parties settled their underlying litigation by entering

into a comprehensive CSA, with the benefit of counsel.

Under the CSA, plaintiff agreed he would be barred

from pursuing any further claims against defendant

arising from the underlying litigation, "but for breach

or fraud relative to” the CSA. Based on the record

24a

before us, we agree with Judge Gardner that plaintiff

failed to establish the elements of fraud or breach

relative to the CSA.

Thus, the judge properly

dismissed plaintiffs complaint.

Indeed, the record reflects plaintiff advanced

bare allegations of fraud and fraudulent conveyance,

rather than evidence for a reasonable fact finder to

determine by a preponderance of the evidence that

defendant's 2017 purchase of the condominium was

made "with actual intent to hinder, delay or defraud"

plaintiff, or that the purchase was made "without

receiving a reasonably equivalent value in exchange

for the transfer."

N.J.S.A. 25-2-25.

Moreover,

regardless of the parties' dispute as to when Judge

Tarantino

recommended—

versus

ordered—

defendant to provide a list of his assets and liabilities

to plaintiffs counsel, the record supports Judge

Gardner's finding that defendant provided such a list

to plaintiffs counsel no later than June 2018, well

before the parties entered into the CSA. Further, as

Judge Gardner pointed out, plaintiff provided no

explanation as to why plaintiffs counsel could not

have exercised due diligence to assess defendant's net

worth after receiving defendant's list of assets and

liabilities more than a year before the parties executed

the CSA.

Moreover, the record supports Judge Gardner's

finding that because defendant bought the

condominium in September 2017, disclosed the

25a

purchase no later than June 2018, the parties entered

into the CSA in November 2019, and plaintiff waited

until December 2021, i.e., more than four years after

the condominium purchase, to file a complaint

asserting a claim for a fraudulent conveyance,

plaintiffs UFTA claim was untimely under N.J.S.A.

25:2-31.

Next, we are persuaded Judge Gardner

correctly found plaintiff failed to establish he was a

creditor under the UFTA because plaintiff had no

"right to payment" from defendant when plaintiff filed

r\

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/** /'•**•%•> VA1 II

WXXXpXCXXXXU.

That is because defendant made each of the three

payments due under the CSA.

Finally, we agree with Judge Gardner that

plaintiff failed to state a claim for breach of contract.

To prevail on a breach of contract claim,

a plaintiff must prove four

elements: "first, that the parties

entered into a contract containing

certain terms; second, that [the]

plaintiff did what the contract

required [the plaintiff] to do; third,

that [the] defendant did not do

what the contract required [the

defendant] to do, defined as a

breach of the contract; and fourth,

that [the] defendant's breach, or

26a

failure to do what the contract

required, caused a loss to the

plaintiff."

[Woytas v.

Greenwood Tree

Experts, Inc., 237 N.J. 501, 512

(2019) (alterations in original)

(quoting Globe Motor Co. v.

Igdalev, 225 N.J. 469, 482 (2016)).]

Here, despite plaintiffs argument to the

contrary, the CSA could have, but did not include a

provision that defendant would provide a copy of his

Will to plaintiff. Instead, the CSA stated if the Will

"failted] to contain the ... term" that plaintiff was

"entitled to inherit one-third ... of [defendant's]

probated estate," "the executor or administrator of the

estate" was obligated to "take the necessary measures

to enforce the requirements of [the CSA]." Under

these circumstances, Judge Gardner properly declined

to modify the parties' CSA to include a term the

parties failed to negotiate for themselves, and

correctly found plaintiff failed to establish defendant

breached the CSA.

To the extent we have not addressed plaintiffs

remaining arguments, they lack sufficient merit to

warrant discussion in a written opinion. R. 2-113(e)(1)(E).

Affirmed.

27a

[STAMP]

I hereby certify that the foregoing is a true copy of

the original on file in my office.

/s/

CLERK OF THE APPELLATE DIVISION

28a

APPENDIX B

SUPREME COURT OF NEW JERSEY

C’611 September Term 2023

089145

FILED, Clerk of the Supreme Court, 18 Jul 2024

089145

J.P.,

Plaintiff-Petitioner,

v,:

J.N.,

Defendant-Respondent

ORDER

A petition for certification of the judgment in A002616-21 having been submitted to this Court, and

the Court having considered the same;

It is ORDERED that the

certification is denied, with costs.

petition

for

WITNESS, the Honorable Stuart Rabner, Chief

Justice, at Trenton, this 11th day of July, 2024.

/s/

CLERK OF THE SUPREME COURT