RECORD IMPOUNDED 

 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.

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 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-2616-21

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

complaint with prejudice and denying his cross-motion for summary judgment 

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

and his wife each holding a 49.5% interest in the property, and defendant's son 

owning the remaining 1% interest. 

1

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

2

 Plaintiff mistakenly claims defendant purchased the condominium on 

September 29, 2017. 
3 A-2616-21

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 plaintiff's former counsel in the underlying 

litigation, "[s]everal weeks before the [Lopez] hearing[,] the case [was] 

conferenced by Judge Tarantino," who attempted "[t]o address the gap between 

[p]laintiff's settlement demand and [d]efendant's [then settlement] offer." 

Plaintiff's former counsel also stated in his October 9 certification that 

during that 2018 conference, Judge Tarantino "recommended . . . [d]efendant 

provide [p]laintiff's attorney with a schedule of assets and liabilities for 

attorney's eyes only . . . . to substantiate [d]efendant's claim that his ability to 

settle was limited by his assets." In the same certification, plaintiff's former 

attorney stated, "[d]efendant previously sent me a financial statement listing 

[d]efendant's assets and liabilities for my eyes only. I have not shared it with 

my client." Counsel also certified that based on additional settlement 

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). 
4 A-2616-21

discussions on July 11, 2018 between himself and defendant's then attorney,4

they "communicated to the [c]ourt . . . the case was resolved[,] 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 plaintiff's former 

counsel with a draft settlement agreement in August 2018. Then, with no 

admission of liability by defendant, the parties fully executed a confidential 

settlement 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 as of the time 

that said Will is filed for probate . . . . In the event . . . 

that any Will . . . fails to contain the aforementioned 

term[,] . . . the executor or administrator of the estate 

shall take the necessary measures to enforce the 

requirements of this [CSA]. . . . It is understood that 

4

 Defendant's counsel during the underlying litigation also represents defendant 

on the current appeal. 
5 A-2616-21

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 "release[] and 

discharge[]" 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 arising 

from . . . [the underlying litigation] between [the

parties] during their lifetime up to and including the 

[e]ffective [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 
6 A-2616-21

beginning of time through the effective date [of the 

CSA] . . . which might not yet have accrued. 

[(Emphasis added).] 

Finally, the CSA confirmed defendant provided a list of assets and 

liabilities to plaintiff's former counsel "for [counsel's] eyes only" before the 

parties executed the CSA. Specifically, the CSA stated: 

In entering into this [CSA], the [p]arties 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 . . . 

[plaintiff's attorney] for his eye's only, at the 

recommendation and advice of the [c]ourt, which was

provided . . . to enable [plaintiff] to discern 

[defendant's] liquidity and ability to pay a settlement. 

[(Emphasis added).] 

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 
7 A-2616-21

"in clear anticipation of the [October 4, 2017] settlement conference with Judge 

Tarantino," knowing the judge "previously requested that . . . [d]efendant 

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, "[b]ased on the financial 

information[ defendant provided to plaintiff's 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 plaintiff's 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 scheduled to proceed, and several months after 

defendant bought the condominium.5 

5

 On appeal, defendant contends plaintiff's own attorney confirmed in his 

October 9, 2018 certification that Judge Tarantino "suggested [the] financial 
8 A-2616-21

In January 2022, defendant's attorneys sent a "frivolous litigation letter" 

to plaintiff's 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 plaintiff's complaint pursuant to Rule 4:6-2(e).6 

Plaintiff cross-moved for summary judgment against defendant, 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 continued: 

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 in the 

disclosure[] 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 

[p]laintiff." 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). 
9 A-2616-21

[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 [plaintiff's] 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 allegations in any of the 

[parties' submissions] that anything was hidden." 

Plaintiff's current counsel countered that "[w]hether the condo[minium] 

was disclosed [to plaintiff's 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" 
10 A-2616-21

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 plaintiff's 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 [plaintiff's] point?" Plaintiff's counsel responded, 

"disclosure is one thing, but the . . . actual value of the disclos[ed 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 plaintiff's 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, rhetorically asking whether plaintiff's 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 million-dollar home . . . with no equity in" it, so it would "fall[] upon . . . 

plaintiff to do . . . due diligence before . . . agree[ing] to settle a case." 
11 A-2616-21

After noting the parties' litigation started in 2015 but did not end until 

2019, the judge concluded "[t]he onus [wa]s on . . . [plaintiff's] 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 . . . turn[ing] around and say[ing] somehow[, ']we didn't know 

the value of [the condominium']." The judge also reiterated plaintiff's 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: 

[Plaintiff's Counsel]: Your Honor, we could talk 

about the conveyance now. . . . [T]his 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 of a balance sheet that was made 

and was given to the plaintiff['s attorney i]n . . . June of 

2018, . . . post-purchase of the condo[minium]. 
12 A-2616-21

[Plaintiff's 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. 

[(Emphasis added).] 

Plaintiff's 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." 

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. 
13 A-2616-21

Additionally, the judge concluded plaintiff's fraudulent transfer claim 

under the UFTA was barred by the statute of limitations,8 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 purchasing the condominium. Judge Gardner also rejected 

plaintiff's 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] was[ not] disclosed with specificity 

is . . . neither here nor there. That[ is] on the onus of 

the . . . plaintiff and plaintiff's counsel to do their 

appropriate due diligence. 

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

verify . . . what the defendant[] 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 

8

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

after the transfer was made . . . or, if later, not later than one year after the 

transfer . . . was discovered by the claimant." N.J.S.A. 25:2-31(a). 
14 A-2616-21

all [i]n it. So[,] I'm not convinced. The fraudulent 

inducement [claim] does[ not] apply here. 

 Lastly, Judge Gardner denied plaintiff's cross-motion for summary 

judgment, stating, "[g]iven 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 consider . . . defendant's intent to deceive" plaintiff; (3) 

"disregard[ing] the entire premise of . . . plaintiff's argument concerning 

defendant's misrepresentation, as well as concealment" and "erroneously 
15 A-2616-21

t[aking] 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 "sid[ing] 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 former 

defense attorney" when conducting oral 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 [plaintiff's] complaint," considering 

"[d]efendant ha[d] an implied covenant of good faith and fair dealing as it 

relate[d] 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 of Berlin v. 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 Pressler & Verniero, 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."). 

 
16 A-2616-21

Based on our review of the record and the applicable principles of law, we 

are satisfied plaintiff's arguments are without merit. R. 2:11-3(e)(1)(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 Mart-Morristown 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)). 
17 A-2616-21

"[A] dismissal with prejudice is 'mandated where the factual allegations 

are palpably insufficient to support a claim upon which relief can be granted,' 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 "settlement of litigation 

ranks high in our public 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. of Pub. Utils., 206 N.J. Super. 

523, 528 (App. Div. 1985)). Moreover, a court must be careful not to make a 
18 A-2616-21

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 

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 Int'l, 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." 
19 A-2616-21

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 cannot 

deliberately cheat a creditor by removing [the debtor's property] from the 'jaws 

of execution.'" Ibid. (citing Klein v. Rossi, 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 
20 A-2616-21

unreasonably small in relation to the 

business or transaction; or 

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

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 part: 

a. 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. 

[N.J.S.A. 25:2-27 (a) and (b).] 
21 A-2616-21

"[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 before us, we agree with Judge Gardner that plaintiff 
22 A-2616-21

failed to establish the elements of fraud or breach relative to the CSA. Thus, the 

judge properly dismissed plaintiff's 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 

plaintiff's counsel, the record supports Judge Gardner's finding that defendant 

provided such a list to plaintiff's 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 plaintiff's 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 purchase 

no later than June 2018, the parties entered into the CSA in November 2019, and 
23 A-2616-21

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, plaintiff's 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 the December 2021 complaint. 

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 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 plaintiff's 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 "fail[ed] to contain the . . . term" 

that plaintiff was "entitled to inherit one-third . . . of [defendant's] probated 
24 A-2616-21

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 plaintiff's remaining arguments, they 

lack sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E). 

 Affirmed.