SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0286-21

NIKON, INC.,

Plaintiff-Respondent,

v.

SIMON DOUEK,

Defendant-Appellant.

_______________________

Submitted June 8, 2022 – Decided July 27, 2022 

Before Judges Gilson, Gooden Brown, and Gummer.

On appeal from the Superior Court of New Jersey, Law 

Division, Monmouth County, Docket No. DJ-123295-

16.

McManimon, Scotland & Baumann, LLC, attorneys for 

appellant (Anthony Sodono, III, and Sari B. Placona, on 

the briefs).

Mellinger Kartzman, LLC, attorneys for respondent 

(Steven A. Jayson and Steven P. Kartzman, 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NOT FOR PUBLICATION WITHOUT THE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.
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Defendant Simon Douek appeals from an order denying his motion to 

discharge pursuant to N.J.S.A. 2A:16-49.1 a judgment lien held by plaintiff 

Nikon Inc. (Nikon) and a September 17, 2021 order denying his motion for 

reconsideration. We affirm. 

I.

On June 16, 2016, the Supreme Court of the State of New York, County 

of Suffolk, issued a $697,418.28 judgment in favor of plaintiff Nikon against 

defendant. Nikon docketed the judgment in the Superior Court of New Jersey

on July 14, 2016. 

Defendant filed in the United States Bankruptcy Court, District of New 

Jersey, a voluntary petition for relief under Chapter 7 of the Bankruptcy Code 

on May 25, 2017. In the petition, defendant stated he had a fifty-percent interest 

in real property located in Allenhurst, New Jersey. Defendant claimed the 

property had a total value of $2,300,000 and that three mortgages encumbered 

$1,847,340.78 of that total value. Thus, at the time he filed the petition, 

defendant's equity interest in the remaining value of the property was 

$226,329.61. In the petition, defendant exempted $23,675 of his equity pursuant 

to 11 U.S.C. § 522(d)(1), leaving to the bankruptcy estate (the Estate) an equity 

value in the property of $202,654.61. The day after defendant filed the petition, 
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the Bankruptcy Court appointed a trustee to administer the Estate. On January 

3, 2018, defendant received a discharge of his debts pursuant to section 727 of 

the Bankruptcy Code. See 11 U.S.C. § 727. 

On June 27, 2018, the Court entered a settlement agreement and consent 

order executed by defendant and the trustee. Plaintiff was not a party to the 

agreement. As memorialized in the settlement agreement, defendant and the 

trustee agreed defendant would pay the Estate $175,000 in full and final 

settlement of the Estate's rights to the property. With that agreement, defendant 

was able to avoid the forced sale of the property by the trustee. On August 21, 

2019, the trustee filed a notice of abandonment of the Estate's interest in the 

property, describing the property as having an "inconsequential" value.

On December 30, 2019, defendant filed in the Bankruptcy Court a motion 

to avoid and discharge judgments, including plaintiff's judgment, and any liens

arising from those judgments, pursuant to section 544 of the Bankruptcy Code. 

See 11 U.S.C. § 544. In his supporting brief, defendant acknowledged a 

bankruptcy discharge results in a discharge of a debtor's personal obligation on 

a debt to the judgment creditor but the judgment creditor's docketed lien against 

property owned by the debtor before he filed the bankruptcy petition remains.

If granted, defendant's motion would have had the effect of discharging 
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plaintiff's lien and leaving plaintiff, with other remaining creditors, to recover a 

share of the Estate's value after secured claims were paid. After plaintiff's 

counsel objected to defendant's motion as being procedurally improper, 

defendant withdrew the motion as to plaintiff. 

On or about February 3, 2020, defendant moved in the Superior Court for 

an order pursuant to N.J.S.A. 2A:16-49.1 to cancel and discharge plaintiff's 

judgment lien. N.J.S.A. 2A:16-49.1 provides that one year after a bankruptcy 

discharge, a debtor may apply to a court where a judgment has been docketed

for an order canceling and discharging the judgment. The judgment should be 

canceled and discharged "[i]f it appears . . . [the debtor] has been discharged 

from the payment of that judgment or the debt upon which such judgment was 

recovered." Ibid. But, 

[w]here the judgment was a lien on real property owned 

by the [debtor] prior to the time he was adjudged a 

bankrupt, and not subject to be discharged or released

under the provisions of the Bankruptcy Act, the lien 

thereof upon said real estate shall not be affected by 

said order and may be enforced, but in all other respects 

the judgment shall be of no force or validity . . . . 

[Ibid.]

Defendant argued the court had to discharge plaintiff's judgment lien because 

plaintiff had not executed and levied on the property and because the property 
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was subject to the trustee's avoidance pursuant to section 544 of the Bankruptcy 

Code. See 11 U.S.C. § 544. 

While defendant's motion was pending, plaintiff filed in the Bankruptcy 

Court an amended proof of claim in which it left the "Secured Claim" section 

blank. According to plaintiff's counsel, plaintiff filed the amended claim at the 

trustee's request "for the purpose[] of [the trustee] being able to administer the

[Estate], and make a distribution from the [E]state." 

In a decision placed on the record on April 30, 2020, Judge James J. 

McGann denied defendant's discharge motion, finding plaintiff's lien had 

survived defendant's bankruptcy "to the extent of . . . [d]efendant's equity" in 

the property above the $23,675 exemption under 11 U.S.C. § 522(d)(1). The 

judge recognized defendant's bankruptcy operated to discharge the underlying 

debt in plaintiff's judgment, meaning plaintiff could not pursue collection of the 

debt through, for example, a wage execution or bank levy but found plaintiff 

was "free to proceed in rem." The judge held the trustee could not have avoided 

the remaining balance of the lien and, consequently, defendant could not avoid 

it and it was not subject to discharge. He issued an order denying the motion on 

May 7, 2020. In an order dated September 17, 2021, the judge denied 

defendant's motion for reconsideration, finding unpersuasive defendant's 
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interpretation of and reliance on an unrelated, unpublished Appellate Division 

decision issued after his initial decision. 

Five days after Judge McGann issued his initial decision, defendant 

moved in the Bankruptcy Court for an order that would "clarify" the settlement 

and consent order between defendant and the trustee by stating that defendant's 

property had been abandoned "free and clear of all judgment liens" pursuant to 

11 U.S.C. § 544; defendant had paid to the trustee any equity he had in the 

property; and plaintiff's lien was void because plaintiff's amended proof of claim

demonstrated plaintiff's claim was not secured. 

While that motion was pending, plaintiff filed in the Bankruptcy Court 

another amended proof of claim, listing its judgment as "partially secured";

describing the "nature of property or right of setoff" as "Real Estate," 

specifically a "Lien Against Non-Estate (Abandoned) Real Property"; and 

asserting a secured claim of $202,654.65 against the property and an unsecured 

claim of $494,763.63. 

In a decision placed on the record on December 1, 2020, the Bankruptcy 

Court denied defendant's motion and granted plaintiff leave to amend its proof 

of claim. The Bankruptcy Court held (i) the settlement agreement clearly was 

between defendant and the trustee and those parties could not and did not in that 
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agreement impact the validity of plaintiff's lien; (ii) plaintiff could file an 

amended claim bifurcating its claim as being partially secured by the property 

in the amount of $202,654.65 and partially unsecured in the remaining amount 

of $494,763.63; and (iii) defendant's arguments were barred by Judge McGann's 

decision, with which the Bankruptcy Court agreed, finding it would not have 

granted an avoidance of plaintiff's lien given the amount of equity the Estate had 

in the property before the settlement agreement. The Bankruptcy Court also 

found unpersuasive defendant's interpretation of and reliance on the unpublished 

Appellate Division decision issued after Judge McGann's initial decision. The 

Bankruptcy Court issued an order on February 16, 2021, denying defendant's 

motion, bifurcating plaintiff's claim into secured and unsecured claims, 

discharging defendant's in personam obligation regarding plaintiff's secured 

claim but allowing plaintiff's secured claim to pass through defendant's 

bankruptcy as an in-rem lien against defendant's interest in the property, and 

fixing the judgment lien at $202,654.65. 

Two days later, defendant appealed that order to the United States District 

Court for the District of New Jersey. In a written opinion, the District Court 

affirmed the Bankruptcy Court's order. See Douek v. Nikon, Inc. (In re Douek), 

No. 21-02983, 2022 U.S. Dist. LEXIS 13098 (D.N.J. Jan. 25, 2022). The 
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District Court held the Bankruptcy Court had not abused its discretion in 

allowing plaintiff to file an amended proof of claim; had correctly determined 

that defendant's $175,000 payment under the settlement agreement did not 

reduce the amount of plaintiff's $202,654.61 judgment lien, the value of which 

was determined at the time defendant had filed the bankruptcy petition, which 

was before he entered into the settlement agreement with the trustee 1; and had 

correctly found sections 502 and 506 of the Bankruptcy Code did not convey to 

defendant a right to avoid plaintiff's lien, see 11 U.S.C. §§ 502, 506. The District 

Court concluded plaintiff's claim was an "allowed secured claim." Douek, 2022 

U.S. Dist. LEXIS 13098, at *21.

On appeal, defendant relies on the unrelated, unpublished Appellate 

Division case issued after Judge McGann's initial decision and argues the judge

erred in failing to discharge and cancel plaintiff's lien. 

II.

We review a trial court's legal determinations de novo. Rowe v. Bell & 

Gossett Co., 239 N.J. 531, 552 (2019); see also Manalapan Realty, L.P. v. Twp. 

Comm. of Manalapan, 140 N.J. 366, 378 (1995) (finding a "trial court's 

1

 The District Court calculated the lien to be $202,654.61 and noted the fourcent discrepancy between its calculation and the parties' calculations. Id. at *19 

n.7.
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interpretation of the law and the legal consequences that flow from established 

facts are not entitled to any special deference"). We review under an abuse-ofdiscretion standard a denial of a reconsideration motion. Branch v. Cream-OLand Dairy, 244 N.J. 567, 582 (2021).

Defendant bases his appeal largely on his interpretation of an unpublished 

Appellate Division decision unrelated to this case that was issued after Judge 

McGann's initial decision. Defendant's interpretation of that case was rejected 

by Judge McGann and by the Bankruptcy Court. More important, his reliance 

on that case in this appeal is misplaced because pursuant to Rule 1:36-3, the case

has no precedential value and is not binding on any court. As we stated in 

Badiali v. New Jersey Manufacturers Insurance Group, 429 N.J. Super. 121, 126 

n.4 (App. Div. 2012), aff'd, 220 N.J. 544 (2015), "as a general matter, 

unpublished opinions are not to be cited by any court absent certain specified 

circumstances." None of those circumstances apply to the unrelated, 

unpublished case on which defendant extensively relies.

We see no basis to depart from the conclusions reached by the Bankruptcy 

Court and the District Court in affirming the Bankruptcy Court. We recognize 

those decisions are unpublished, but they relate directly to the parties, the 

bankruptcy, and the issues before us and, accordingly, our citations to them "are 
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appropriate not only to provide a full understanding of the issues presented but 

also because their citations herein meet the 'any other similar principle of law' 

exception" of Rule 1:36-3. Badiali, 429 N.J. Super. at 126 n.4 (quoting R. 1:36-

3).

Unlike Judge McGann when he issued his initial decision, we have the 

benefit of hindsight and the subsequently-issued decision of the Bankruptcy 

Court and the affirming decision of the District Court. The Bankruptcy Court 

held plaintiff could file an amended proof of claim, bifurcating its claim between 

a $494,763.63 unsecured claim and a $202,654.65 secured claim. The District 

Court affirmed that decision. Thus, plaintiff had a secured lien. As expressly

set forth in its order denying defendant's motion to clarify the settlement, declare 

defendant's property free of all judgment liens, and declare plaintiff's lien void, 

the Bankruptcy Court discharged defendant's in personam obligation regarding 

plaintiff's secured claim but allowed plaintiff's secured claim to pass through 

defendant's bankruptcy as an in-rem lien against defendant's interest in the 

property. The District Court affirmed that decision. 

We see no basis to take a different position on those issues. "Although 

the Bankruptcy Court does not have exclusive jurisdiction of matters involving 

dischargeability in bankruptcy, . . . the Bankruptcy Court is most qualified to 
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deal with the issue [because t]he question of dischargeability is an everyday 

issue in that court which has significant expertise." Cohen v. Dir., Div. of Tax'n, 

19 N.J. Tax 58, 64 (Tax 2000); see also D'Atria v. D'Atria, 242 N.J. Super. 392, 

409 (Ch. Div. 1990) ("It is not this Court's function . . . to displace the 

Bankruptcy Court in the fair administration of the assets of the debtor before 

it.").

We affirm Judge McGann's order denying defendant's motion to discharge 

plaintiff's judgment lien pursuant to N.J.S.A. 2A:16-49.1 and his subsequent 

order denying defendant's motion for reconsideration. N.J.S.A. 2A:16-49.1 does 

not allow for the discharge of a judgment lien where – as here – the lien "may 

be enforced" because "the judgment was a lien on real property owned by the 

[debtor] prior to the time he was adjudged a bankrupt, and not subject to be 

discharged or released under the provisions of the Bankruptcy Act." 

Affirmed.