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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.
PER CURIAM.
Plaintiff appeals from two orders: an April 30, 2018 order dismissing the amended complaint against defendant Caliber Home Loans (Caliber); and a June 8, 2018 order dismissing the complaint against defendant JPMorgan Chase Bank, N.A. (Chase), improperly pled as J.P. Morgan Chase. Judge Margaret Goodzeit entered the orders and rendered comprehensive and thorough opinions. We affirm.
Almost eleven years ago, a bank instituted a residential foreclosure complaint against plaintiff, who immediately filed an answer contesting the bank's allegations. In November 2009, the bank obtained final judgment, which the court amended. The Sheriff then scheduled the sale of the property. Thereafter, plaintiff filed a Chapter 13 petition, which stayed the sale. The bankruptcycourt dismissed the petition in October 2016, and although the Sheriff re-listed the sale, plaintiff stayed it again by filing a Chapter 7 petition. The bankruptcycourt lifted the stay, refusing to stay the sale any further, despite multiple applications by plaintiff.[1]Plaintiff filed this complaint in January 2018, and the Sheriff sale of the property occurred in June 2018.
In this complaint, plaintiff alleged she proposed to redeem the property in March 2010, Chase failed to respond, Caliber became the servicer of the loan in July 2015, and Caliber provided a pay-off figure to plaintiff in November 2017. The judge entered the orders under review dismissing the complaint under Rule 4:6-2(e), the entire controversy doctrine (ECD), res judicata, and collateral estoppel.
On appeal, plaintiff argues the judge erred by dismissing the complaint by relying on the ECD. Indeed, her merits brief focuses solely on the ECD, although at oral argument before us, she contended that the judge erroneously relied on the other bases for dismissing this case. Plaintiff urges us to reverse the orders and award her damages.
We conclude that plaintiff's contentions are without sufficient merit to warrant attention in a written opinion. R. 2:11-3(e)(1)(E). We reach that conclusion even considering plaintiff's new arguments on appeal, on the record that she expanded without court order. We affirm substantially for the reasons expressed by Judge Goodzeit.
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Affirmed
[1]Plaintiff filed at least three other bankruptcy petitions, seeking further stays of the sale. The bankruptcycourt dismissed the petitions and denied each of her requests to stay the sale of the property.
Joseph M. Pinto argued the cause for appellants (Polino and Pinto, attorneys).
Mary Lynn McCaffrey argued the cause for respondent (Isabel L. Becker, attorney).
PER CURIAM.
This appeal arises from plaintiffs' complaint to cancel and discharge a creditor's judgment lien held by defendant Citi Mortgage, Inc. (Citi), following the conclusion of bankruptcy proceedings conducted pursuant to Chapter 7 of the United States Bankruptcy Code (Chapter 7), 11 U.S.C.A. §§ 701-784. In 1997, the Superior Court entered a default judgment in favor of Citi against plaintiffs, and by virtue of its docketing of that judgment, Citi obtained a lien on all of plaintiffs' real property in New Jersey. Four years later, plaintiffs instituted a Chapter 7bankruptcy proceeding in the United States BankruptcyCourt. Because plaintiffs listed the law firm that had represented Citi, rather than Citi itself, in their Chapter 7 petition, the bankruptcycourt did not provide notice of the proceeding to Citi. After the bankruptcy trustee abandoned two of plaintiffs' New Jersey properties, the bankruptcycourt discharged plaintiffs' debt and closed their Chapter 7 case. Citi did not attempt to levy on plaintiffs' property at any time prior to the bankruptcy filing and did not seek to enforce its lien in the wake of plaintiffs' bankruptcy discharge.
More than three years after the bankruptcy discharge, plaintiffs filed this action under N.J.S.A. 2A:16-49.1. That statute permits a debtor, whose debts have been discharged in bankruptcy, to apply to the state court that has entered a judgment against the debtor, or has docketed the judgment, for an order directing the judgment 743 to be canceled and discharged. N.J.S.A. 2A:16-49.1. The statute requires the debtor to wait at least a year following his or her bankruptcy discharge before seeking the cancellation and discharge of the judgment lien. Ibid. Pursuant to N.J.S.A. 2A:16-49.1, plaintiffs sought an order cancelling Citi's judgment lien on the two properties.
The trial court granted Citi's motion for summary judgment and dismissed plaintiffs' claim. The court acknowledged that a judgment creditor, such as Citi, who has not levied on the debtor's property prior to the debtor's filing of a bankruptcy petition, may enforce its valid lien following the bankruptcy discharge, but must do so within the year following the discharge. The court explained that if Citi did not enforce its lien within that period, its lien could be canceled pursuant to N.J.S.A. 2A:16-49.1. The trial court found, however, that Citi had not received notice of plaintiffs' Chapter 7bankruptcy proceeding. It accordingly ruled that due process principles would be violated if Citi's judgment lien was canceled prior to the expiration of a year following the date upon which Citi belatedly learned of the bankruptcy proceedings and plaintiffs' attempt to cancel its lien. Consequently, the trial court equitably tolled the one-year period prescribed by the statute.
In a published opinion, the Appellate Division affirmed the determination of the trial court. Gaskill v. Citi Mortg., Inc., 428 N.J.Super. 234, 237, 52 A.3d 192 (App. Div.2012). The panel concluded that the Citi judgment lien was subject to discharge or release in plaintiffs' bankruptcy proceedings and was consequently subject to cancellation pursuant to N.J.S.A. 2A:16-49.1. Id. at 242-43, 52 A.3d 192. The panel agreed with the trial court that Citi had not received the required actual notice of the bankruptcy petition or the bankruptcy discharge obtained by plaintiffs. Id. at 245-46, 52 A.3d 192. It held that N.J.S.A. 2A:16-49.1 was drafted on the assumption that any creditor subject to its terms had received notice of the bankruptcy proceeding. Ibid. The panel ruled that the trial court's remedy of equitable tolling of the one-year waiting period prescribed by N.J.S.A. 2A:16-49.1 was proper. Id. at 245, 52 A.3d 192. We granted certification. 217 N.J. 52, 84 A.3d 601 (2014).
We affirm, substantially for the reasons stated by the Appellate Division. We add only brief comments with respect to the decision of the United States Court of Appeals for the Third Circuit in Judd v. Wolfe, 78 F.3d 110 (3d Cir.1996), upon which plaintiffs substantially rely in their argument before this Court. For the reasons that follow, we consider Judd to address a procedural question of federal bankruptcylaw that is distinct from the issue raised by this appeal and accordingly find that it does not support plaintiffs' argument.
In Judd, the Third Circuit did not consider the issue raised by this case: the effect of a debtor's failure to provide notice to a creditor of a Chapter 7bankruptcy petition on the debtor's right to cancel a judgment lien under state statutory law. Instead, the court considered the procedural requirements imposed by federal bankruptcylaw, following the closing of the bankruptcy case, on a debtor who has failed to list a claim on the schedule of creditors submitted in a Chapter 7 no-asset case in which no bar date has been set. Id. at 111. The Third Circuit held that such a debtor is not required to file a motion to reopen the bankruptcy case, pursuant to 11 U.S.C.A. § 350(b), in order to discharge the debt that had been omitted from the schedule, unless one or more 744of the statutory exceptions to discharge applied.Ibid.[1]
In support of its holding, the Third Circuit pointed to the text of 11 U.S.C.A. § 727(b), which provides that "[e]xcept as provided in section 523 of this title, a discharge . . . discharges the debtor from all debts that arose before the date of the order for relief under this chapter." 11 U.S.C.A. § 727(b); Judd, supra, 78 F.3d at 113-14. The court explained that 11 U.S.C.A. § 523 provides that the only situation in which a debt is not discharged is if it was "`[n]either listed nor scheduled ... in time to permit ... timely filing of a proof of claim.'" Judd, supra, 78 F.3d at 114 (quoting 11 U.S.C.A. § 523(a)(3)(A)). The Third Circuit further noted that "[b]ecause [the case before it] is a `no-asset' Chapter 7 case, the time for filing a claim has not, and never will, expire unless some exempt assets are discovered; thus, section 523(a)(3)(A) cannot be applied" to prevent the discharge of an unlisted debt in a no-asset case. Ibid. The court held that such an unscheduled debt is discharged even if that discharge may disadvantage or prejudice the unlisted creditor. See id. at 113 n. 6, 115, 116 n. 13. "In a case where there are no assets to distribute," the creditor's "right to file a proof of claim is a hollow one," because "[a]n omitted creditor who would not have received anything even if he had been originally scheduled, [is] not ... harmed by omission from the bankrupt's schedules and the lack of notice to file a proof of claim." Id. at 115. Accordingly, the Third Circuit reasoned, the failure to give notice to the creditor in the bankruptcy proceeding could not affect that creditor's position, because there were no assets in any event. Ibid.
The Third Circuit acknowledged, however, that in a bankruptcy case that involves assets, the debt of an unnoticed creditor is not discharged unless that creditor received notice in time to file a proof of claim. See id. at 114-15. Moreover, any intentional tort debt is not discharged unless the creditor received notice in time to file a complaint pursuant to 11 U.S.C.A. § 523(c). See id. at 114 n. 9.
The circumstances of this case stand in contrast to the no-asset setting of Judd, in which action taken by the creditor in the bankruptcy proceedings would have been futile even if it had received timely notice of the bankruptcy petition and the subsequent discharge. As noted by the trial court and the Appellate Division, had Citi received notice of the bankruptcy petition and discharge in this case, it would have been in a position to enforce its lien during the year following the bankruptcy discharge, as permitted by N.J.S.A. 2A:16-49.1. Gaskill, supra, 428 N.J.Super. at 243-44, 52 A.3d 192. The notice that was omitted in this case would not have been meaningless, as it was in the no-asset, no-bar date setting of Judd. Instead, timely notice would have enabled the creditor to take action within the time limitation of N.J.S.A. 2A:16-49.1 to protect its interest in the real property at issue.
Accordingly, the Third Circuit's holding in Judd does not address the due process argument that was raised by the debtor in this case: whether notice to a creditor of a 745Chapter 7bankruptcy proceeding and discharge constitutes a prerequisite to the cancellation and discharge of a judgment under N.J.S.A. 2A:16-49.1. We concur with the Appellate Division's conclusion that such notice is required before a debtor may invoke the protection of N.J.S.A. 2A:16-49.1, and that equitable tolling was an appropriate remedy in the circumstances of this case.
The judgment of the Appellate Division is affirmed.
For affirmance—Chief Justice RABNER and Justices LaVECCHIA, PATTERSON, FERNANDEZ-VINA and Judge FUENTES (temporarily assigned)—5.
Not participating—Justice ALBIN and SOLOMON—2.
Opposed—None.
[1] Subsections (a)(2), (a)(4), and (a)(6) of 11 U.S.C.A. § 523 exempt from discharge "debts incurred by false pretenses, false representation or actual fraud ... (523(a)(2)); debts incurred by fraud or defalcation while acting as a fiduciary ... (523(a)(4)); and debts for willful and malicious injury ... (523(a)(6))." Id. at 114 (internal quotation marks omitted). The Third Circuit explained that "[i]f the debt at issue is not a debt described under section 523(a)(2), (4) or (6), the debt has been discharged by virtue of section 727(b), whether or not it was listed. If, however, the debt is a debt that falls under sections 523(a)(2), (4) or (6), the debt is not discharged by virtue of section 523(a)(3)(B)." Id. at 115.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATEDIVISION
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.
PER CURIAM.
Defendant Jalal Shabazz appeals from a post-judgment order enforcing a provision of the parties' marital settlement agreement in which they agreed to be "equally responsible" for an American Express account having an approximate balance of $7400 at the time of their divorce in 2012. The December 14, 2018 order directed defendant to pay plaintiff Tanya Kauffman $10,123.36 for his fifty-percent share of the balance as of the time of the order and awarded her $3000 in attorney's fees.
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Defendant contends the amount awarded exceeded what plaintiff requested in her notice of motion; the order was based on the court's mistaken belief that plaintiff filed an objection to the discharge of the debt in his Chapter 7bankruptcy; that enforcement of the marital settlement agreement was barred by laches; and that the trial court did not have adequate information "to calculate that plaintiff/respondent actually paid $10,126.36." Our review of the record convinces us that none of those arguments, only the last of which he raised to the trial court, is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following.
Although defendant contends the amount awarded exceeded what plaintiff "requested in her notice of motion," the notice of motion included in his appendix mentions no amount but asks only that defendant be compelled "to immediately make payments as required by the Property Settlement Agreement attached to the Judgment of Divorce." We thus reject his first argument as baseless.
His second argument, that the trial court based its decision on the mistaken belief that plaintiff filed an objection to the discharge of this claim, is equally unavailing. Because 11 U.S.C. § 523(a)(15) provides that a Chapter 7 discharge under 11 U.S.C. § 727, does not discharge an individual debtor from any debt to a former spouse incurred in the course of a divorce or in connection with a separation agreement or divorce decree, whether the judge was mistaken as to whether plaintiff filed an objection to the discharge is of no moment. Defendant's obligation to pay half the American Express bill was not discharged in his Chapter 7bankruptcy as a matter of law, with no action necessary by plaintiff to protect the claim.
The only argument defendant offers in support of his claim of laches is an old case in which the chancellor determined he could infer from the wife's failure to have pursued support arrearages for six years, making the application only after her ex-husband's death, that the two had "made some arrangement between themselves with respect to support." Duffy v. Duffy, 19 N.J. Misc. 332, 340 (Ch. 1941). Here, however, defendant claims no such arrangement, and the record reflects that plaintiff pursued defendant for contribution to the American Express bill for some time before filing her motion to enforce the agreement. There is, accordingly, no support for defendant's third argument that enforcement of the marital settlement agreement is barred by laches.
Finally, we reject defendant's fourth argument that plaintiff "failed to provide any documentation evidencing that she actually paid any interest" for the period between entry of the divorce judgment in 2012 and the American Express statement from 2018, which the trial court rejected.
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Defendant has included in his appendix a copy of a certification plaintiff submitted in support of her motion in which plaintiff averred that her "attorney provided all of the outstanding AMEX bills" in her pre-hearing exchange pursuant to the court's discovery order. That certification references several exhibits, none of which were attached to the document.
Plaintiff has included in her own appendix certain American Express statements defendant did not provide us. She further asserts in her brief that the court calculated the amount owed "by reviewing American Express bills which were noted in [plaintiff's] certification to be exhibits G, H, I, J, K, L, M, N, and O." Those exhibits are not included in defendant's appendix and he did not file a reply brief challenging the accuracy of plaintiff's representations regarding the state of the record before the trial court.
Defendant's failure to supply us with all the documents on which the trial court relied to calculate his share of the American Express account, including interest and fees imposed after entry of the divorce judgment, leaves us unable to agree with his argument that those documents were inadequate to support the court's conclusion. See Soc'y Hill Condo. Ass'n v. Soc'y Hill Assocs., 347 N.J. Super. 163, 177 (App. Div. 2002); R. 2:6-1(a)(1)(I).
Submitted March 24, 2015. Decided April 1, 2015.
Law Offices of Jae Y. Kim, L.L.C., attorneys for appellant (Raymond Marelic, of counsel and on the brief; Mr. Kim, on the brief). Fleischer, Fleischer & Suglia, attorneys for respondent (Allison L. Domowitch, on the brief). Before Judges Fasciale and Hoffman.
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PER CURIAM. Defendant Misook Kim appeals from a March 7, 2014 order denying her motion to vacate an order granting summary judgment to plaintiff. We affirm.
Plaintiff obtained a judgment against Hanna Kim Corporation ("Hanna"). Hanna allegedly attempted to defraud and evade its creditors by making post-judgment transfers to defendant and co-defendant Ki C. Kim, who is defendant's husband and Hanna's president. Plaintiff essentially maintained in this action that Hanna was a shell corporation created to conceal defendant's personal transactions.
Plaintiff filed its complaint demanding damages under the Uniform Fraudulent Transfer Act (the "Act"), N.J.S.A. 25:2-20 to -34. Plaintiff attempted to pierce Hanna's corporate veil seeking to collect the money that Hanna allegedly transferred fraudulently. Co-defendant successfully sought protection from plaintiff's claim by filing a Chapter 7bankruptcy petition and obtaining a discharge.[1]Defendant did not seek similar protection.
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Plaintiff pursued its claim solely against defendant under the Act. Plaintiff and defendant both filed motions for summary judgment. In January 2014, the court granted summary judgment to plaintiff, and denied defendant's motion.
Defendant sought to vacate summary judgment pursuant to Rule 4:50-1(d). She argued that the court lacked subject matter jurisdiction because co-defendant had filed for bankruptcy. Defendant conceded, however, that she did not file a petition for bankruptcy. Plaintiff contended that its summary judgment against defendant was independent from anything that co-defendant had done leading to his filing of the Chapter 7 petition. Plaintiff argued that it obtained judgment against defendant based on fraudulent transfers that Hanna had made directly to defendant, unrelated to any transfers that co-defendant may have made, or any transfers that Hanna may have made to co-defendant.
The judge denied defendant's motion to vacate plaintiff's summary judgment, entered the order under review, and then denied defendant's motion for reconsideration.
On appeal, defendant contends that co-defendant's Chapter 7 petition prevents plaintiff from pursuing its claim against her under the Act. As a result, defendant repeats her Rule 4:50-1(d) argument that the judge erred by not vacating plaintiff's summary judgment because the court arguably lacked subject matter jurisdiction.
After reviewing the record and the briefs, we conclude that defendant's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief remarks.
In reviewing a grant of summary judgment, we apply the same standard under Rule 4:46-2(c) that governed the trial court. Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 564 (2012). Here, there are no genuine issues of material fact. Because the judge resolved legal questions, we review her conclusions on issues of law de novo. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). "The purpose of the [Act] is to prevent a debtor from placing his or her property beyond a creditor's reach." Gilchinsky v. Nat'l Westminster Bank N.J., 159 N.J. 463, 475 (1999). The Act defines "transfer" as "every mode, direct or indirect, absolute or conditional, voluntary or involuntary, of disposing of or parting with an asset or an interest in an asset, and includes payment of money, release, lease, and creation of a lien or other encumbrance." N.J.S.A. 25:2-22. A transfer of assets may be fraudulent under the Act if the transaction was completed (1) with the actual intent to defraud the creditor, or (2) through constructive fraud, where the debtor had no actual intent to commit fraud. State Dep't of Envtl. Prot. v. Caldeira, 171 N.J. 404, 409 (2002).
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Plaintiff's damages against defendant under the Act pertain to fraudulent transfers that Hanna made to defendant. Here, Hanna attempted to place its assets beyond plaintiff's reach by making fraudulent transfers to defendant. This violates the underlying policy of the Act, which is to prevent debtors from deliberately defrauding creditors "by removing [their] property from the jaws of execution." Gilchinsky, supra, 159 N.J. at 475 (citation and internal quotation marks omitted).
Moreover, plaintiff's claims against defendant are separate from its discharged claims against co-defendant. Plaintiff did not seek from defendant damages related to any transfer of money that co-defendant may have made to defendant in anticipation of co-defendant's Chapter 7 petition filing. In other words, plaintiff did not attempt to recover its damages from co-defendant's bankruptcy estate or from any transfer that co-defendant may have made. Rather, plaintiff premised its claims against defendant pursuant to the Act and successfully pierced Hanna's corporate veil.
Although defendant did not file a petition for bankruptcy, she made numerous applications seeking to stay plaintiff's collection efforts against her. The judge correctly denied those efforts because defendant was not a bankruptcy debtor entitled to an automatic stay. Defendant therefore never availed herself of protection under the bankruptcy code and her suggestion that the court somehow lacked subject matter jurisdiction is without merit.
As a result, we reject defendant's contention that there is a basis for relief under Rule 4:50-1(d). Affirmed. [1] Co-defendant is not involved in this appeal.
