SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO . A - 0699

- 15T4

AMERICAN EXPRESS CENTURION BANK,

Plaintiff

- Respondent,

v. SALVATORE MASTROPOLE,

Defendant

- Appellant.

___________________________________________

Argued April 25, 2017

– Decided Before Judges Suter and Grall. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L - 0440

- 14. Richard H. Kotkin argued the cause for appellant. Respondent American Express Centurion Bank has not filed a brief.

PER CURIAM Plaint iff American Express Centurion Bank filed a complaint alleging defendant Salvatore Mastropole breached a credit card agreement to pay the minimum amount due as indicated on his monthly statements (count one), seeking payment due on the NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

J uly 5 , 20172 A - 0699

- 15T4

account ( c ount two ), and alleging unjust enrich ment based on defendant's receipt of the benefits charged on the card without tendering payment (count three). The parties settled the case and filed an amended stipulation of settlement with the court on May 6, 2014. On July 1 0, 2015, defendant moved to vacate the settlement agreement, and he now appeals from a July 25, 201 5 order, denying his motion to vacate. Plaintiff did not file a timely answering brief, and on its own motion, this court suppressed the brief. For the rea sons that follow, we affirm. Defendant was not represented by counsel at the time of the settlement. He was, however, represented by counsel on the motion to vacate, and he is represented by the same attorney on appeal. In support of his motion to vacate the settlement, defendant submitted a certification asserting that he "agreed to settle" the initial litigation with the understanding that he "would make certain monthly payments, towards the outstanding balance" and "would get back [his] credit privileg es and . . . could continue to charge on the Account." Although his credit was not restored, he continued to make monthly payments. By plaintiff's account, he made ten monthly payments under their agreement before stopping payments and consulting a n atto rney , who, according to defendant, told him the agreement did not reflect his understanding.3 A - 0699

- 15T4

There is no question that the four page, seven paragraph stipulation of settlement defendant signed does not reflect
those terms. Instead, it include s the follow ing:

Except for the terms and conditions contained herein Defendant[s ] acknowledges and represents that he possess no claims, demands, defenses, counterclaims, or causes of action whatsoever against [plaintiff], its officers, directors, employees, agents, attorneys, heirs and assigns pertaining to [his account number], which are not being resolved pursuant to the Agreement. Defendant[s] forever waives and relinquishes any and all such claims, wh e ther known or unknown, and further covenants and agrees that he shall not institute any suit, pro c eedings or action at law, equity arbitration, or otherwise against [plaintiff], o r in any way aid in the institution or prosecution of any claim, demand, or cause of action against American Express arising directly or indirectly out of or in connection with [his account number] . Defendant does not point to a single passage in the
document he signed to settle plaintiff's suit that he could have
read as a promise to restore his credit. Nevertheless, he signed it. "Public policy favors the settlement of disputes." Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C. , 215

N.J. 242, 253 (2013). "An agreement to settle a lawsuit is a contract which, like all contracts, may be freely entered into and which a court, absent a demonstration of ' fraud or other compelling circumstances, ' should honor and enforce as it does4 A - 0699

- 15T4

other contracts." Pascarella v. Bruck , 190 N.J. Super. 118, 124 (App. Div.) (quoting Honeywell v. Bubb , 130 N.J. Super. 130, 136 (App. Div. 1974), certif. denied , 94 N.J. 600 (1983) ) ; accord Zuccarelli v. N.J. Dept. of Envtl . Prot . , 326 N.J. Super. 372,
380 (App. Div. 1 999) , certif. denied and appeal dismissed , 163

N.J. 394 (2000) . "Before vacating a settlement agreement, our courts require clear and convincing proof that the agreement
should be vacated." Nolan v. Lee Ho , 120 N.J. 465, 472 (1990) ( internal quotation marks omitted). "A party is bound to the contract it made at the time, even if it turns out to be a poor
deal." New Jersey Mfrs. v. O'Connell , 300 N.J. Super. 1, 7 (App. Div.), certif. denied , 151 N.J. 75 (1997). Given defendant's signing of the agreement unambiguously omitting any promise concerning restoration of credit, and his tender of ten monthly payments in conformity with the stipulation , defendant's unsupported assertion that plaintiff
fraudule ntly omitted a promise material to his agreement is simply not enough to warrant an order vacating the settlement. Judge Brogan properly denied the motion. Affirmed.