                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0897-12T1

GLOBE MOTOR COMPANY, a corporation
of the State of New Jersey, and
THE MARGOLIS LAW FIRM, LLC,
                                         APPROVED FOR PUBLICATION
     Plaintiffs-Respondents,
                                               August 7, 2014
v.                                           APPELLATE DIVISION

ILYA IGDALEV and JULIA IGDALEV,

     Defendants-Appellants.
___________________________________

         Argued December 11, 2013 - Decided August 7, 2014

         Before Judges      Sapp-Peterson,    Lihotz     and
         Hoffman.

         On appeal from the Superior Court of New
         Jersey, Law Division, Bergen County, Docket
         No. L-8638-11.

         Christopher J. Koller argued the cause for
         appellants.

         Sara A. Kimball argued the cause for
         respondents (The Margolis Law Firm LLC,
         attorneys; Ms. Kimball, on the brief).

     The opinion of the court was delivered by

LIHOTZ, J.A.D.
       Defendants, Ilya and Julia Igdalev,1 appeal from a May 11,

2012    order    denying    their    motion       for     summary       judgment     and    a

separate order entered the same day granting summary judgment in

favor of plaintiffs Globe Motor Company (Globe) and The Margolis

Law Firm (Margolis).           Defendants further appeal from the final

judgment       filed   on   September       12,     2012,        awarding      plaintiffs

damages of $42,381, which included an award of attorney's fees.

On appeal, defendants raise several arguments maintaining entry

of summary judgment was erroneous.                We disagree and affirm.

       These     are    the    facts        viewed        most        favorably     toward

defendants.       Brill v. Guardian Life Ins. Co. of Am., 142 N.J.

520, 529–30 (1995).            Plaintiffs filed a declaratory judgment

action (BER-L-8638-11) seeking a determination that defendants

were responsible to pay various costs and expenses resulting

from    defendants'     failure      to     comply      with      the    terms     of    the

parties' settlement agreement (Globe II).                        Prior to addressing

the    issues    presented,    we    must       provide    background         information

regarding the settlement in the underlying action and events

supporting plaintiffs' declaratory judgment complaint.

       The     underlying     action      (BER-C-203-08)          was     initiated        by

Globe,    as    represented     by     Margolis,        which     alleged      breach      of


1
     To avoid confusion, when referring                          to    each    individual
defendant, we use his or her first name.



                                            2                                      A-0897-12T1
contract and fraud against defendants and two others (Globe I).

That     action     was    settled    by   a     six-page     written      settlement

agreement.        Among the terms of settlement was paragraph 2, which

stated:

             That ILYA and JULIA shall jointly pay to
             GLOBE the amount of SEVENTY-FIVE THOUSAND
             ($75,000.00)   DOLLARS,   by   certified  or
             attorney trust account check payable to "The
             Margolis Law Firm LLC, as attorneys for
             Globe Motor Company" and delivered to The
             Margolis Law Firm LLC not later than 1:00pm
             on Friday, October 2, 2009 TIME BEING
             EXPRESSLY MADE OF THE ESSENCE.

       The settlement agreement also provided that "[i]n the event

ILYA does not pay, for any reason or no reason, any portion of

the settlement amount, then in such event, JULIA shall pay the

entire      SEVENTY-FIVE      THOUSAND         ($75,000.00)       DOLLARS    of     the

settlement amount, as required by the provisions of paragraph #2

hereof."          Upon     "full     payment"     plaintiffs       would    enter     a

stipulation        dismissing       the    litigation       and     the     agreement

contained a full mutual release of claims between the parties.

       By   October       2009,    Margolis     received    two    certified      bank

checks totaling $75,000.             More specifically, one check was for

$12,000 and the other for $63,000, each made payable to "The

Margolis Law Firm, LLC as Attorneys for Globe Motor Company."

The larger check contained a notation stating: "Remitter Mike

Povolotsky."




                                           3                                 A-0897-12T1
      Margolis     accepted       the        certified     checks          as    defendants'

payment    under      the     terms     of     the     settlement          agreement.          A

stipulation      of    dismissal,        with        prejudice,       was       later     filed

concluding Globe I.

      Almost one year later, Globe and Margolis were served with

a complaint filed by Brian Leonard, the designated Chapter 7

Trustee assigned to supervise the bankruptcy case initiated by

the debtor Auto Point, Limited (Auto Point).2                        Leonard, on behalf

of the debtor's estate, filed an adversary proceeding to recover

$75,000 alleged to have been fraudulently transferred from the

debtor's   assets       and    paid     to     Margolis        and    Globe.            Leonard

asserted    Auto      Point     "was     not      a    client        of,    and     owed     no

obligations to" Margolis or Globe, and the debtor had "received

less than a reasonably equivalent value in exchange for the

[t]ransfers."         Furthermore, Leonard's complaint maintained the

transfers were made when Auto Point was insolvent or the debtor

became insolvent as a result of the transfers.                             Leonard alleged

the   transfers       were    voidable       under     various       provisions         of   the

Bankruptcy Code.

      Plaintiffs       learned        Povolotsky,        defendants'             friend      and

business    associate,         owned     Auto         Point.         The        trustee      had

2
     Auto Point filed its voluntary petition pursuant to Chapter
7 of the Bankruptcy Code in the United States Bankruptcy Court
for the District of Minnesota on April 23, 2010.



                                              4                                      A-0897-12T1
determined     the     monies     transmitted          to     Margolis      to     satisfy

defendants'     obligations       under    the     settlement         agreement        were

taken from Auto Point's funds.

     Margolis and Globe hired separate bankruptcy counsel.                                 A

settlement     resolving      Leonard's        claims       was   reached,       requiring

payment of $22,500.          Additionally, they incurred attorney's fees

and costs.

     When the bankruptcy action was terminated, plaintiffs filed

Globe II, seeking to recover damages sustained in defending and

settling     the     adversary       proceeding.                  Plaintiffs       alleged

defendants     had     breached      the       terms    of        settlement      in     the

underlying action by "fail[ing] to tender the amount due under

the Settlement free and clear from claims of others and not

subject to surrender . . . ."                  Plaintiffs alleged defendants'

breach caused plaintiffs to suffer damages equivalent to the

amounts paid to Leonard to settle the trustee's claims, along

with attendant attorney's fees and costs, both in the bankruptcy

action   and   the     declaratory     judgment         matter.           The    Globe    II

complaint also alleged unjust enrichment, breach of the covenant

of   good    faith     and    fair   dealing,          fraud,       and    also     sought

indemnification from Julia.

     The     parties    filed     cross-motions             for    summary       judgment.

Plaintiffs' counsel restated the facts regarding the Globe I




                                           5                                      A-0897-12T1
litigation,    settlement    agreement,    checks   received,     Minnesota

bankruptcy    proceedings,   terms   of   settlement   of   the   adversary

proceeding, and attorney's fee expense incurred.             Globe's vice

president affirmed these facts.

    In support of defendants' motion for summary judgment, Ilya

certified:

         4.   In order to resolve that litigation, I
         entered into a Settlement Agreement, wherein
         Globe was to receive $75,000.00, payable to
         The Margolis Law Firm LLC, as Attorneys for
         Globe Motor Company.

         5.   This settlement was made as a business
         decision by all parties.

         6.   Pursuant to the Settlement Agreement
         and Release, I was to pay the sum of
         $75,000.00   and   my  former   wife,   Julia
         Igdalev, was a guarantor of said payment and
         in addition, entered into a confession of
         judgment if those payments were not made.

         7.   At approximately the same time the
         Settlement Agreement was executed, my New
         Jersey bank accounts had been restrained due
         to allegations in a criminal action against
         me.

         8.   Prior to the restraint of my funds, in
         the New Jersey bank accounts, I had a
         business and personal relationship with an
         individual named Michael Povolotsky.

         9.   Michael Povolotsky was a buyer and
         seller of cars in Minnesota, and also
         operated a business in Minnesota called
         "Auto Point Limited."

         10. About the same time the Settlement
         Agreement was reached, Michael Povolotsky,



                                     6                             A-0897-12T1
            individually,  was   holding  more   than
            $75,000.00 of money owed to me from prior
            dealings.

            11. I requested Michael Povolotsky to make
            checks payable to The Margolis Law Firm LLC,
            in the total amount of $75,000.00 in
            settlement of this case.

      Ilya averred neither he nor Julia "were asked, nor agreed

to indemnify or hold [plaintiffs] harmless from any claims[,]"

stating "[t]here was absolutely no provision in the Settlement

Agreement . . . that the funds were to come from my wife or

myself,       individually,        or      [from]         any   specific        payor."

Maintaining he acted "in good faith," Ilya insisted he made the

payment required under the settlement agreement, and based on

the release, neither he nor Julia had a further obligation to

plaintiffs.

      Julia    too   filed    a    certification           adopting       as   true   and

correct all statements made by Ilya.                 "In addition, [she noted]

all payments were timely made and accepted without protest by

[p]laintiff[s],      who     had    dismissed       the     .   .    .     action     with

prejudice."

      Following a lengthy oral argument, the Law Division judge

denied defendants' and granted plaintiffs' motion for summary

judgment.      The judge found defendants had materially breached

the   settlement     agreement          because     the     monies       tendered     were

determined to have been transferred from the debtor Auto Point,



                                           7                                    A-0897-12T1
without    consideration,      and    were   legally     subject    to   recovery.

The judge therefore concluded Ilya did not pay the $75,000 as

required    by    the     settlement    agreement.         He    entered      orders

memorializing this decision on May 11, 2012.                Subsequent motions

were   filed     regarding   recovery     of   attorney's       fees   and    costs.

Final judgment was entered on September 12, 2012.                      Defendants'

appeal ensued.

       We review the trial court's summary judgment order de novo,

applying the same standard that governs the trial court.                      W.J.A.

v. D.A., 210 N.J. 229, 237 (2012); Lapidoth v. Telcordia Tech.,

Inc., 420 N.J. Super. 411, 417 (App. Div.), certif. denied, 208

N.J. 600 (2011).          Pursuant to Rule 4:46, we "consider whether

the competent evidential materials presented, when viewed in the

light most favorable to the non-moving party, are sufficient to

permit a rational factfinder to resolve the alleged disputed

issue in favor of the non-moving party."               Brill, supra, 142 N.J.

at 540.     "[W]hen the evidence is so one-sided that one party

must prevail as a matter of law, the trial court should not

hesitate    to    grant    summary     judgment."        Ibid.     (citation       and

internal    quotation      marks     omitted).      If    no    genuine      factual

dispute exists, we must decide whether the trial court's ruling

on the law, to which we owe no deference, was correct.                       W.J.A.,

supra, 210 N.J. at 237-38.




                                         8                                   A-0897-12T1
      Also implicated in our review are principles governing the

enforcement of the parties' terms of settlement.                          "Public policy

favors    the      settlement       of    disputes.          Settlement       spares       the

parties the risk of an adverse outcome and the time and expense

-- both monetary and emotional -- of protracted litigation."

Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215

N.J. 242, 253-54 (2013).             See also Herrera v. Twp. of S. Orange

Vill.,    270      N.J.    Super.        417,    424    (App.     Div.      1993)    (noting

"[t]here      is   a    clear   public          policy    in     this     state     favoring

settlement of litigation"), certif. denied, 136 N.J. 28 (1994).

"Settlements avert the risks of litigation, spare the parties

ruinous litigation expenses, and conserve judicial resources."

Pinto    v.   Spectrum      Chems.        &   Lab.     Prods.,      200   N.J.      580,   594

(2010).       Moreover,      settlements            permit     "litigants      to    resolve

disputes      on   mutually     acceptable           terms     in     place   of     risking

exposure      to   an     adverse    judgment[.]"              DEG,     LLC   v.    Twp.     of

Fairfield, 198 N.J. 242, 259 (2009) (citation omitted).                                     "A

defendant's likely settlement calculation is whether the payout

is less than the 'cost of the predicted judgment, discounted by

its     probability,        plus     the        transaction         costs     of     further

litigation.'"          Pinto, supra, 200 N.J. at 594 (quoting Evans v.

Jeff D., 475 U.S. 717, 734, 106 S. Ct. 1531, 1541, 89 L. Ed. 2d

747, 762 (1986)).




                                                9                                    A-0897-12T1
       "'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    does    other

contracts.'"       Brundage v. Estate of Carambio, 195 N.J. 575, 601

(2008) (quoting Pascarella v. Bruck, 190 N.J. Super. 118, 124-25

(App.    Div.),        certif      denied,        94     N.J.     600    (1983)).          The

"[i]nterpretation            of       a        settlement        agreement       implicates

significant legal and policy principles[.]"                              Kaur v. Assured

Lending Corp., 405 N.J. Super. 468, 474 (App. Div. 2009).                                  Our

review of legal questions is plenary.                       Zabilowicz v. Kelsey, 200

N.J. 507, 512 (2009).

       When examining the terms of a settlement agreement, we are

guided by the rules of contract construction.                            Brundage, supra,

195 N.J. at 601.            See also Thompson v. City of Atl. City, 190

N.J. 359, 379 (2007).              "The polestar of contract construction is

to discover the intention of the parties as revealed by the

language used by them."                   Karl's Sales & Serv., Inc. v. Gimbel

Bros.,    Inc.,       249   N.J.      Super.      487,    492    (App.    Div.),       certif.

denied, 127 N.J. 548 (1991).                     In interpreting a contract, the

focus is on "the intention of the parties to the contract as

revealed by the language used, taken as an entirety; and, in the

quest    for    the    intention,          the    situation       of    the    parties,    the




                                                 10                                  A-0897-12T1
attendant    circumstances,       and     the    objects    they    were     thereby

striving to attain . . . ."             Lederman v. Prudential Life Ins.

Co. of Am., Inc., 385 N.J. Super. 324, 339 (App. Div.) (citation

and internal quotation marks omitted), certif. denied, 188 N.J.

353   (2006).      In   that    regard,    the    court    may   not   re-write       a

contract or grant a better deal than that for which the parties

expressly bargained.           Solondz v. Kornmehl, 317 N.J. Super. 16,

21 (App. Div. 1998).

      Recognizing       the    parties'      autonomy      in    resolving      their

disputes, "[i]t follows that any action which would have the

effect of vitiating the provisions of a particular settlement

agreement    and   the    concomitant        effect   of    undermining       public

confidence in the settlement process in general, should not be

countenanced."      Dep't. of Pub. Advocate, Div. of Rate Counsel v.

N.J. Bd. of Pub. Utils., 206 N.J. Super. 523, 528 (App. Div.

1985).   With these principles in mind, we consider defendants'

arguments.

      On appeal, defendants contend the judge incorrectly granted

summary judgment to plaintiffs, asserting the only "competent

evidential material[]" before the court was Ilya's certification

stating the $75,000 transferred by Povolotsky was Ilya's money.

Therefore, the funds could not belong to the debtor, Auto Point.

Because defendants challenged plaintiffs' claim regarding the




                                        11                                   A-0897-12T1
ownership of the money used to satisfy the obligations under the

settlement agreement, defendants argue material factual disputes

obviated entry of summary judgment.

      To support this contention, defendants claim "all parties

were aware of the restraint on Ilya['s] . . . funds in Bergen

County."      Defendants'         brief   purports      to    quote    from    Ilya's

certification     filed    in     support      of   defendants'   motion      and    in

opposition to plaintiffs' motion for summary judgment.                     However,

the   certification       as      filed   contains      no    statement       placing

plaintiffs on notice of the restraint of defendants' funds or

the need to rely on Povolotsky.                In fact, the recitals recounted

and relied on by defendants' in their brief materially differ

from the actual facts of record.

      Nevertheless, accepting as true Ilya's statement Povolotsky

was "holding . . . money owed . . . from prior dealings" does

not prove funds sent to plaintiffs by Povolotsky were Ilya's or

refute     that   the     money     transferred       to     plaintiffs    actually

belonged to Auto Point.           Defendants' contrary suggestion made to

create a dispute of material facts is illusory.                       See Shelcusky

v. Garjulio, 172 N.J. 185, 200-01 (2002) ("The very object of

the summary judgment procedure then is to separate real issues

from issues about which there is no serious dispute.").                          Quite




                                          12                                  A-0897-12T1
simply, the assertion that Povolotsky held Ilya's money does not

mean he sent Ilya's money.3

       Also, defendants mistakenly contend that absent a judgment

from the Bankruptcy Court determining the funds actually were

Auto Point's must mean they were Ilya's funds in Povolotsky's

possession.        That   Povolotsky        held     Ilya's      money    creates    no

dispute of a material fact, which should subject plaintiffs to

the burden of a trial.           Merely because Povolotsky held Ilya's

money does not establish he used those funds when making payment

to   plaintiffs.       Indeed,      Ilya    asserts        no   personal     knowledge

establishing his money was actually transferred; at its best,

defendants'     suggestion     in    this       regard   is     merely   supposition,

which is insufficient to defeat summary judgment.

       The record, viewed most favorable to defendants, shows only

that   after    Ilya   asked   his    friend       and     business      associate   to

satisfy   the    settlement      obligation         with      money   owed    to   him,

Povolotsky did so using assets of his company, Auto Point.                         Ilya

does not maintain Auto Point owed him money.

3
     Our dissenting colleague maintains it is reasonable to
"infer . . . that the funds Povolotsky used to buy the checks
were those owed to Ilya."    Post at ___ (slip op. at 7).     We
cannot abide by such a conclusion.          Auto Point was a
corporation. As such, it is an independent legal entity. Thus,
if Povolotsky owed Ilya money, payment could not reasonably or
permissibly come from Auto Point's funds.      Importantly, Ilya
never asserts Auto Point owed him money, as the dissent assumes.
Post at ___ (slip op. at 7).



                                           13                                 A-0897-12T1
     Auto Point's ownership of the funds is evident from the

bankruptcy pleadings.        Leonard is a fiduciary appointed by the

United States Bankruptcy Court to oversee the debtor's estate.

See 11 U.S.C.A. § 321 to § 323 (stating eligibility and general

duty of bankruptcy trustee).         After examining the debtor's books

and records, Leonard filed the adversary proceeding to recover

money    he   found   was    taken       from    Auto     Point's    account     and

transferred to plaintiffs.           There is no dispute regarding the

amount    transferred,      which    matched        the    sums     delivered     to

plaintiffs or that the checks as issued were made payable to

Margolis as attorney for Globe.               Further, there is no evidence

Auto Point owed a debt or obligation to plaintiffs or Ilya.

Because the transfer was without consideration, it is subject to

recovery.     See 11 U.S.C.A. § 548 (allowing trustee to avoid

fraudulent    transfers     made    by    a     debtor    within    the   four-year

limitations period).         The settlement of the adversary action

represented a compromise by the parties with respect to the

contested and disputed issues, accepting the trustee's evidence,

along with each side's assessment of the cost and expense in

proceeding to trial.4


4
     The   dissent    suggests   the   judge   improperly    faulted
defendants   for   their   "fail[ure]   to   participate   in   [the
bankruptcy action] to which they had never been made a party."
Post at ___ (slip op. at 9).         We provide only these brief
                                                         (continued)


                                         14                                A-0897-12T1
    We   conclude   plaintiffs   cannot   be   faulted   for   settling

rather than trying the adversary proceeding.       See Frank Stamato

& Co. v. Lodi, 4 N.J. 14, 21 (1950) (citing Ramsey v. Perth

Amboy Shipbuilding Eng'g Co., 72 N.J. Eq. 165 (Ch. 1906), aff'd.

73 N.J. Eq. 742 (E. & A. 1908)). ("[I]t is well established that

a party who has been injured by a breach of contract must make

reasonable efforts to mitigate his damages[.]").           To suggest



(continued)
comments.   Joinder implicates establishment of subject matter
jurisdiction, which is grounded in and limited by statute.
Celotex Corp. v. Edwards, 514 U.S. 300, 307, 115 S. Ct. 1493,
1498, 131 L. Ed. 2d 403, 410 (1995). Pursuant to 28 U.S.C.A. §
157(b)(1), bankruptcy judges hear all core proceedings and "may
enter final orders and judgments with respect to such
proceedings."   In re J.T. Moran Fin. Corp., 124 B.R. 931, 936
(Bankr. S.D.N.Y. 1991).    Core proceedings are those "arising
under Title 11 or arising in or related to a case under Title
11[.]" Phar-Mor, Inc. v. Coopers & Lybrand, 22 F.3d 1228, 1234
n.9 (3d Cir. 1994).    See also 28 U.S.C.A.          § 157(b)(2)
(providing a non-exhaustive list of core proceedings).       "By
contrast, proceedings which are 'related to' a bankruptcy case
are non-core."   Id. at 1235.   "In non-core proceedings, unless
the parties consent to the bankruptcy court's jurisdiction, the
bankruptcy judge has the power only to 'submit proposed findings
of fact and conclusions of law to the district court,' and the
parties are entitled to de novo review of any matter to which
they 'timely and specifically' object."      In re Arnold Print
Works, Inc., 815 F.2d 165, 167 (1st Cir. 1987) (quoting 28
U.S.C.A. § 157(c)(1)).   Jurisdiction over a non-core matter is
permissible only if "the outcome of that proceeding could
conceivably have any effect on the estate being administered in
bankruptcy[.]"   Celotex Corp., supra, 514 U.S. at 308, 115 S.
Ct. at 1499, 131 L. Ed. 2d at 411 n.6. Here, plaintiffs' action
to enforce the settlement agreement had no impact on the estate.
Further, as we noted, Ilya's suggestion that Povolotsky held his
funds would not defeat the trustee's position that funds were
transferred from Auto Point and paid to plaintiffs.



                                 15                            A-0897-12T1
plaintiffs   were    required    to   complete      a   trial   and     obtain    a

judicial determination is specious.            Pinto, supra, 200 N.J. at

594.

       We additionally reject defendants' argument suggesting the

motion    judge's    determination    was     erroneously       based    on    his

finding Ilya was not credible.         The judge's cited comments were

not a determination of contested facts; rather, the statements

represent an assessment that the asserted facts do not create a

material dispute.     As the Court held in Shelcusky:

           The   determination    that   an    offsetting
           affidavit   creates   only  a   sham   factual
           dispute is squarely within the trial court's
           authority at the summary judgment stage,
           when the court is required to evaluate,
           analyze, and sift evidence to determine
           whether   the   evidential   materials,   when
           viewed in the light most favorable to the
           opposing party, would permit a rational
           factfinder to resolve the issue in favor of
           the opposing party.      That rule does not
           intrude on the function of the jury because
           it does not require the trial court to
           determine credibility, or to determine the
           relative weight of conflicting evidence. We
           are confident that trial courts have the
           ability to distinguish sham affidavits from
           affidavits that raise a genuine issue of
           material fact.

           [Shelcusky, supra, 172 N.J. at 201.]

       Defendants    next   assert    they    fully      complied     with     the

settlement   terms    as    drafted   and    were   innocent     because      they

lacked knowledge of any wrongdoing by their friend Povolotsky.




                                      16                                 A-0897-12T1
Essentially, defendants believe their presentation of certified

checks that were accepted by plaintiffs, who thereafter filed a

full release and stipulation of dismissal, ends our inquiry.

Additionally, defendants argue plaintiffs could have rejected

the tender of the funds drawn on a Minnesota Bank or after

noticing one check contained Povolotsky's name as remitter.                             We

examine these points.5

      Evaluating        the    relative      innocence       of    the   parties,     when

deciding    who     bears      the       burden   of   Povolotsky's        actions,     we

conclude    the     manner         and    methods   chosen        were   controlled     by

defendants and accomplished at their direction.                          Therefore, the

consequences       of   Povolotsky's         unseemly    conduct         falls   to   them

rather     than    plaintiffs.              Povolotsky's      failure       equates     to

defendants' failure to perform and strikes at the very heart of

the settlement agreement, defeating its purpose and representing

a   material      breach      of    its    terms.      See    Restatement        (Second)

Contracts § 241 comment a (1981) (discussing a material breach

of contract).

      Defendants' contention that they complied with the letter

of the settlement agreement when they tendered a cashier's and a


5
     Defendants   also  argue  the   judge  erred   because the
settlement agreement did not contain a specific term that, if
Ilya did not pay, a judgment would be entered against him. This
argument lacks merit. R. 2:11-3(e)(1)(E).



                                             17                                  A-0897-12T1
bank check totaling $75,000 is legally unfounded.                       An essential

element     of   the   agreement       was     that    plaintiffs      received    the

agreed-upon amount.        Because legal claims attached to the money

tendered,      which   were     not    immediately       apparent,      payment    was

illusory.

       The constrained construction of the contractual obligations

asserted by defendants completely ignores the reality that legal

defenses    attached     to    the     funds,    which      prevented     plaintiffs'

retention.       By    accepting       the     compromise     set    forth    in   the

settlement agreement, plaintiffs sought to end the litigation

with defendants and had no intention of becoming embroiled in a

new    suit.      When    the        monies    used    to    satisfy      defendants'

obligation were not free of the claims of others, the essence of

the settlement agreement was breached.                   Although Ilya delivered

payment, the funds used did not belong to Povolotsky and could

not    be   transferred       to     another.         Therefore,    the    trustee's

recovery of $22,500 results in defendants not paying plaintiffs

the agreed sum of $75,000.

       We also find defendants' argument that plaintiffs should

have    been     suspect        of     the      out-of-state        checks     highly

disingenuous.      After all, defendants commissioned Povolotsky to

act.      Plaintiffs had no reason to doubt the efficacy of the

negotiable instruments, N.J.S.A. 12A:3-104(c), or know the money




                                          18                                 A-0897-12T1
tendered actually belonged to Auto Point.                 The mode of payment

specified in the settlement agreement was intended to provide

some   security      that    receipt       of   the   designated      instruments

evidenced existence of the funds.               See Merchants' Nat'l Bank v.

State Bank, 77 U.S. 604, 648 (10 Wall.), 19 L. Ed. 1008, 1019

(1870) (acknowledging "[t]he practice of certifying checks has

grown out of the business needs of the country," and noting

"[t]hey enable the holder to keep or convey the amount specified

with safety.        They enable persons not well acquainted to deal

promptly with each other, and they avoid the delay and risks of

receiving, counting, and passing from hand to hand large sums of

money.").    Defendants' provision of a cashier's check and a bank

check, paid to the order of plaintiffs, reflected monies drawn

on   the   banks'   funds,    again    a    mode    implying    security    of   the

payment.      N.J.S.A.      12A:3-104(g).          However,    even   a   cashier's

check is not free of legal defenses.                See Santos v. First Nat'l

State Bank of N.J., 186 N.J. Super. 52, 63 (App. Div. 1982).6


6
     We do not agree with our dissenting colleague that
cashier's checks are the functional equivalent of cash. Post at
___ (slip op. at 13). In fact, Parks v. Commerce Bank, 377 N.J.
Super. 378 (App. Div. 2005), makes clear federal regulatory
treatment of the speed with which banks must process these
instruments makes it "reasonable for the marketplace to treat
them as the functional equivalents to cash."        Id. at 385.
Provisions of the Uniform Commercial Code remain applicable and
"it is a mistake to conclude that cashier's checks are like cash
in all situations." Santos, supra, 186 N.J. Super. at 63. We
                                                      (continued)


                                           19                              A-0897-12T1
    Contrary to the inference sought by defendants, there is no

evidence plaintiffs were party to Povolotsky's actions.7           As

such, plaintiffs qualified as a holder in due course, as defined

under Article 3 of the Uniform Commercial Code (UCC), codified

as N.J.S.A. 12A:3-101 to -605.        A "holder in due course" is a

holder who takes the instrument (a) for value, (b) in good faith

and (c) without notice that it is overdue or has been dishonored

or of any defense against or claim to it on the part of any

person.   N.J.S.A. 12A:3-302(a)(2).

    Our assessment that defendants are liable under these facts

(rather than suggesting plaintiffs are at fault), aligns with

this concept.

          The basic philosophy of the holder in due
          course   status    is   to   encourage   free
          negotiability   of    commercial   paper   by
          removing certain anxieties of one who takes
          the paper as an innocent purchaser knowing
          no reason why the paper is not as sound as


(continued)
can agree that "[u]nless otherwise agreed, if a certified check,
cashier's check, or teller's check is taken for an obligation,
the obligation is discharged to the same extent that discharge
would result if an amount of money equal to the amount of the
instrument were taken in payment of the obligation."    N.J.S.A.
12A:3-310(a).   However, if legal defenses defeat the payment,
the obligation must be restored.     This refutes our dissenting
colleague's   assertion  that   defendants   complied with   the
settlement as a matter of law. Post at ____ (slip op. at 13).
7
     As noted above, defendants' reliance on the proposition
that plaintiffs knew what Povolotsky was doing was premised on a
certification that is not part of the record.



                                 20                         A-0897-12T1
           its face would indicate.   It would seem to
           follow, therefore, that the more the holder
           knows about the underlying transaction, and
           particularly the more he [or she] controls
           or participates or becomes involved in it,
           the less he [or she] fits the role of a good
           faith purchaser for value; the closer his
           [or her] relationship to the underlying
           agreement which is the source of the note,
           the less need there is for giving him [or
           her] the tension-free rights considered
           necessary in a fast-moving, credit-extending
           commercial world.

           [Unico v. Owen, 50 N.J. 101, 109-10 (1967).]

    We    also   reject    defendants'    contention   plaintiffs    should

have included provisions in the settlement agreement restricting

payment   solely   from     Ilya's   funds,    or   otherwise   requiring

indemnification, including in the event of third-party recovery,

as occurred here.8        Any notion that settlement agreements must

include language to curb all possible sharp or illicit practices

is antagonistic to one's obligation to negotiate in good faith.

Perhaps it was unforeseen that Povolotsky would be a scoundrel,

but we cannot ignore Ilya controlled that process.              Therefore,

8
     We understand the dissent finds the absence of such
provisions compelling.  Post at ____ (slip op. at 12-14).    We
disagree because the practical application of requiring the
enumeration of all provisions that could defeat the apparent
obligation of payment would be burdensome as impractical and,
thus, discourage    settlement arrangements.    We also cannot
accept that when weighing the responsibilities presented by
these facts, Margolis should have rejected the cashier's check,
because it did not reflect Ilya was the remitter. Post at ____
(slip op. at 13).




                                     21                             A-0897-12T1
he may not be relieved of the responsibility to tender full

payment if the process he chose was flawed.            Under the terms of

the agreement, Julia was responsible if Ilya failed to pay "for

any reason or no reason."           Thus, she too is liable.        Globe is

due $22,500.9

       We     turn   to    defendants'    challenges   to   the    award    of

attorney's fees.          Citing the American Rule,10 defendants maintain

the fee award was legally unsupported.          We are not persuaded.

       In accordance with the American Rule, generally, attorney's

fees    are    not   recoverable     unless   authorized    by    statute   or

recognized as available by our Court Rules.                 See R. 4:42-9.

However, fee awards have been ordered when incurred as damages

sustained by a party forced into litigation with another as a

result of fraud, see Hagen v. Gallerano, 66 N.J. Super. 319, 333

(App. Div. 1961), and for third-party litigation arising because

9
     We agree with our dissenting colleague that Margolis does
not have a claim against defendants for breach of the settlement
agreement. Post at ____ (slip op. at 9). We do not agree the
payment to Leonard was differentiated between Margolis and
Globe, as such an allocation of liability is not evident in the
settlement terms. Nevertheless, if Margolis received money, it
was for attorney's fees paid by Globe from the $75,000 recovery.
Globe would remain liable for the fees recovered; therefore,
defendants must repay the entirety of the sum remitted to
Leonard.
10
     The American Rule generally requires each party to bear all
legal expense incurred in representation and generally precludes
recovery of counsel fees from an adversary.       N. Bergen Rex
Transp., Inc. v. Trailer Leasing Co., 158 N.J. 561, 569 (1999).



                                         22                          A-0897-12T1
of a party's breach of contract, Dorofee v. Planning Bd. of

Pennsauken, 187 N.J. Super. 141, 144 (App. Div. 1982).                "The

award of counsel fees as traditional damages in such settings is

not precluded by R[ule] 4:42-9."         Ibid.    (citing Cohen v. Fair

Lawn Dairies, Inc., 86 N.J. Super. 206 (App. Div. 1965), aff'd

44 N.J. 450 (1965)).

    The      judge   found   the    fees   incurred     were     necessary

consequences of defendants' breach of the settlement agreement.

Noting the fees incurred were causally related to defendants'

breach,   the   judge   reasoned,    "defendants     put   you   in   this

situation.    You had no other choice [but] to do it [i.e., defend

the adversary proceeding]."        Counsel's certification in support

of the fee request detailed the basis of all costs and expenses.

The judge found the request reasonable.          Following our review we

cannot determine the judge misapplied his reasoned discretion.

Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001).

    Affirmed.




                                    23                            A-0897-12T1
________________________________________

SAPP-PETERSON, P.J.A.D., dissenting.

      To accept the majority's decision is to conclude the facts

are so one-sided that plaintiffs were entitled to judgment as a

matter of law.       Their decision, however, reflects consideration

of the facts in the light most favorable to plaintiffs, contrary

to   the   appropriate       standard        for    granting     summary   judgment.

Brill, supra, 142 N.J. at 523.                     In addition, they place the

burden of proof on defendants as to the ownership of the funds

transferred.         For   the    reasons       that     follow,    I   respectfully

dissent.

      These    are     the       facts       viewed      most     favorably    toward

defendants.       Ibid.          On    October      1,   2009,     Globe   reached     a

settlement agreement with defendants Ilya and Julia Igdalev in

an   underlying      dispute     (Globe       I),     requiring    that    defendants

jointly pay Globe $75,000 by certified or attorney trust account

check payable to Margolis, Globe's counsel in that matter and

co-plaintiff      here,    and        that   payment     would     be   delivered    to

Margolis by October 2, 2009.                 The terms also provided that if

Ilya failed to timely deliver the checks, Julia would have to

pay the entire amount in the same manner, as guarantor.                             The

parties agreed a stipulation of dismissal would be filed "[u]pon

full payment in accordance with th[e] [a]greement."



                                                                              A-0897-12T1
       Within     days           of     reaching        the     settlement,            defendants

presented    two       cashier's         checks       totaling       the    full    obligation,

both made payable to Margolis on Globe's behalf.                                    One of them

explicitly      named        a    Mike     Povolotsky,          rather       than      either    of

defendants,       as        the       remitter,       and     the     other      specified       no

remitter.       For reasons unexplained, plaintiffs did not file the

stipulation of dismissal until March 23, 2010.

       In April 2010, Auto Point filed a petition for Chapter 7

Bankruptcy.            On       February     24,       2011,        sixteen      months       after

defendants      paid        the       $75,000      and       eleven     months        after     the

stipulation      of     dismissal         was     filed,       the    bankruptcy         trustee,

Brian Leonard, filed a complaint (adversary proceeding) against

plaintiffs      in     Minnesota         bankruptcy          court,    claiming        that   Auto

Point "made two payments to [Margolis and Globe] on October 1,

2009, in the amount of $12,000.00 and $63,000.00 for a total of

$75,000.00.       The payments were made from [Auto Point's] assets"

and "Auto Point was not a client of, and owed no obligations to,

The    Margolis       Law        Firm,    LLC.        The    Debtor        did   not    owe     any

obligations to Globe Motor Company."

       The bankruptcy court admitted Margolis pro hac vice, but

both    Margolis        and       Globe     retained          separate        local     counsel.

Leonard     reached         a     settlement          with    Globe        and   Margolis       for

$22,500, which amounted to thirty percent of the $75,000 he




                                                  2                                      A-0897-12T1
originally demanded.          Both Globe and Margolis also each paid

$4000 in counsel fees to local Minnesota counsel.

       Plaintiffs thereafter initiated the present action (Globe

II)    against    defendants,       asserting     defendants         breached      the

settlement       agreement    and     release         because    the     bankruptcy

proceedings      in    Minnesota    effectively        negated   the     settlement

payment, along with claims for breach of an implied covenant of

good   faith     and   fair   dealing,       fraud,    unjust    enrichment,       and

indemnification.         Plaintiffs      subsequently        moved     for     summary

judgment and defendants cross-moved for summary judgment.                          The

court granted plaintiffs' motion and entered judgment in favor

of plaintiffs for $22,000, the exact amount plaintiffs paid to

resolve the adversary proceeding.                The court also entered an

order awarding counsel fees to plaintiffs, allocated as follows:

$19,000 in counsel fees with $8,000 and $2,000 applied to the

Minnesota bankruptcy action and $9,000 for prosecution of the

present action.

       In   granting     summary    judgment,         the   motion     judge     found

incredible Ilya's certification that the funds used to purchase

the two checks belonged to or were owed to Ilya,1 noting that


1
  While the majority is correct that defense counsel's quotation
of that certification in his brief differs from the copy of the
certification in the record, counsel may well have been quoting
from a different certification filed in a related bankruptcy
                                                     (continued)


                                         3                                   A-0897-12T1
defendants never went to Minnesota to challenge the bankruptcy

trustee's position that the checks were assets of the debtor.

The court also found there were no genuinely disputed issues of

fact as to whether defendants breached the settlement agreement.

The court expressed:      "They were supposed to pay $75,000.                 The

Court finds the $75,000 wasn't paid.               Start from the initial

agreement.     This isn't a novation.             It's not an assignment.

It's none of that.       They guaranteed they will be paid $75,000,

and they weren't paid $75,000."          The present appeal followed.

      Our review of a trial court's grant or denial of a motion

for summary judgment is de novo.              Agurto v. Guhr, 381 N.J.

Super. 519, 525 (App. Div. 2005).          Under our de novo standard of

review, we employ the same standard as that of the trial court.

Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162,

167   (App.   Div.),   certif.   denied,    154   N.J.   608   (1998).        Our

analysis requires that we first determine whether the moving

party   has   demonstrated   there   are    no    genuine   disputes     as    to

material facts, and then we decide "whether the motion judge's

application of the law was correct."               Atl. Mut. Ins. Co. v.



(continued)
matter involving Auto Point that was mentioned during oral
argument.   Moreover, plaintiffs' counsel never disputed that
plaintiffs had been aware of Ilya's financial circumstances,
notwithstanding that both defense counsel and the court
referenced this fact during oral argument.



                                     4                                 A-0897-12T1
Hillside Bottling Co., 387 N.J. Super. 224, 230–31 (App. Div.),

certif. denied, 189 N.J. 104 (2006).                    In so doing, we view the

evidence      in    the    "light     most       favorable     to    the     non-moving

party[.]"       Brill, supra, 142 N.J. at 523 (1995).                      Because our

review   of     issues     of   law   is   de     novo,   we   accord       no    special

deference to the motion judge's legal conclusions.                          Zabilowicz,

supra, 200 N.J. at 512.             Even where, as here, both parties move

for summary judgment, that relief may not be granted so long as

a trial remains necessary to resolve disputed issues of material

fact, O'Keeffe v. Snyder, 83 N.J. 478, 487 (1980), particularly

where issues of credibility remain, D'Amato v. D'Amato, 305 N.J.

Super. 109, 114-15 (App. Div. 1997).

    Every theory of liability plaintiffs assert presumes the

funds    they      had    to    return     to     the   bankruptcy         estate     were

legitimately subject to return, that is, that the transactions

were legitimately avoidable — but this is only so if the funds

actually belonged to Auto Point.                   11 U.S.C.A. § 548(a).                The

majority accepts as true for purposes of summary judgment that

Povolotsky was holding funds owed to Ilya, but maintains it was

"evident      from       the    bankruptcy        pleadings"        that    the      funds

Povolotsky actually sent were drawn from accounts owned by Auto

Point.     Ante at ___ (slip op. at 13).                Because Auto Point never

owed Ilya any money, at least as the majority interprets Ilya's




                                             5                                    A-0897-12T1
certification, the money Povolotsky sent could not have been

Ilya's and must have belonged to Auto Point.                        Ante at ___ (slip

op. at 13).

      However,       the    only        evidence      plaintiffs      have       thus    far

presented     that    the       money    even     originated       from    Auto    Point's

accounts is an untested allegation in a complaint from another

matter.      The majority may treat that allegation as established

fact, but neither of the checks in the record names Auto Point

as the remitter, one explicitly names Povolotsky personally, and

the other bears no name for the remitter.                        Ilya certified that

Povolotsky, not Auto Point as the majority itself points out,

was to send him the money.               Plaintiffs may well have settled the

bankruptcy     matter      in    good     faith,     in    light    of    the    trustee's

evidence, but they have not shared any of that evidence here,

save the checks, which reveal no connection to Auto Point on

their    face.       One    may     certainly        reasonably      infer       from    the

bankruptcy complaint, as the majority does here, that the reason

the     trustee's      investigation              turned    up     these        particular

transactions is that the money at some point had been drawn from

Auto Point's accounts.             But that inference is not favorable to

defendants, and it is disputed by the balance of the record.

      Ilya    certified         that     he   and    Povolotsky      had     a    business

relationship,        that       Povolotsky          operated     Auto      Point,       that




                                              6                                   A-0897-12T1
Povolotsky "was holding more than $75,000.00 of money owed to

[him] from prior dealings," and that he requested Povolotsky

send the checks to Margolis.               One may reasonably infer from

those circumstances that the funds Povolotsky used to buy the

checks were those owed to Ilya.               Moreover, even if the funds

were drawn from Auto Point's accounts, an unfavorable inference

not   permitted     on   summary      judgment,      Ilya   never    specified,

notwithstanding the majority's assertion to the contrary, who

owed him the money, only that Povolotsky was the one who was

holding it.       Given that Ilya claimed the money was owed from

prior business dealings, it would not be unreasonable to infer

that the money was owed by Auto Point, Povolotsky's business.2

Finally, even if we draw the contrary inference, again, not one

permitted   on     summary      judgment,     that    the   money        was   owed

personally by Povolotsky, it would not be inconceivable that

Povolotsky, whom the majority, after all, characterizes as a

"scoundrel,"      ante   at     ___   (slip    op.    at    21),    might      have

intermingled his own funds with those of his corporation.                         Of

course,   one    could   also   reasonably     conclude,     as    the    majority

does, that Povolotsky personally owed money to Ilya, and that


2
  In that case, the transfer may yet have been avoidable, 11
U.S.C.A. § 547(b)-(c), but the record is not yet sufficient to
resolve that issue, and the trustee never pleaded that ground
for relief.



                                       7                                   A-0897-12T1
Ilya asked him to use that money to buy the checks, but that he

used Auto Point's funds instead.          One could even decline to

credit Ilya at all and conclude that neither Povolotsky nor Auto

Point ever owed him any money in the first place.

    The point to all of this is that these are all reasonable

inferences, but not all of them inexorably lead to the ultimate

conclusion the majority reaches, namely that the funds were Auto

Point's, not Ilya's.         Because the facts here are not so one-

sided as to demand that conclusion, the task of weighing them

must be left to the trier of fact.            See Gilhooley v. Cnty. of

Union, 164 N.J. 533, 545 (2000) (stating that "it was not the

court's function to weigh the evidence and determine the outcome

but only to decide if a material dispute of fact existed" and

that "[o]nly when the evidence is utterly one-sided may a judge

decide that party should prevail as a matter of law" (citing

Brill, supra, 142 N.J. at 540)).        Our task, for summary judgment

purposes, is to accept the inferences favorable to defendants

that may reasonably be drawn from Ilya's certification, which

clearly raise a genuine dispute as to a central material fact in

this case.

    The      trial   court     should   not     have   rejected    Ilya's

certification on credibility grounds, see D'Amato, supra, 305

N.J. Super. 109 at 114-15 (explaining that credibility issues




                                    8                             A-0897-12T1
must always be reserved for the trier of fact), and, at that,

merely because defendants failed to participate in a proceeding

to which they had never been made a party.                       The case on which

the majority relies, Shelcusky, supra, 172 N.J. at 199-202, is

not to the contrary.          It authorizes use of the sham affidavit

doctrine    on    summary     judgment        to   reject      an    affidavit      that

contradicts the affiant's own prior statements or position so as

to invent a dispute of material fact.                    Ibid.      That was not the

case here, and the trial court never recognized it as such, but

explicitly made a credibility evaluation.                     The judgment must be

reversed for that reason alone.

    Moreover, plaintiffs' breach of contract claim should have

been dismissed.         Margolis could not pursue such a claim, because

it was never a party to the settlement agreement.                       Parkway Ins.

Co. v. N.J. Neck & Back, 330 N.J. Super. 172, 186-87 (Law Div.

1998).     Globe could do so, but, for the following reasons, the

record   was     sufficient   to   establish        as    a   matter    of    law   that

defendants complied with the explicit terms of the agreement,

contrary to plaintiffs' allegations.

    It     is    well   settled    that   the      "'settlement        of    litigation

ranks high in our public policy.'"                 Brundage, supra, 195 N.J. at

601 (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476

(App. Div.), certif. denied, 35 N.J. 61 (1961)).                            This strong




                                          9                                    A-0897-12T1
public policy is based upon "'the notion that the 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.'"            Ibid. (quoting Peskin v. Peskin, 271 N.J. Super.

261, 275 (App. Div.), certif. denied, 137 N.J. 165 (1994)).

Thus, courts give effect to the terms of a settlement wherever

possible        and    honor     them      "'absent       compelling           circumstances.'"

Ibid. (quoting Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)).

       Settlement agreements are generally governed by principles

of contract law.              Thompson, supra, 190 N.J. at 379.                        Therefore,

they      may    be     entered        freely       and       enforced         like    all    other

contracts.            Pascarella, supra, 190 N.J. Super. at 124-25.                                In

interpreting a contract, the focus is on "'the intention of the

parties to the contract as revealed by the language used, taken

as   an    entirety;          and,    in    the     quest       for      the      intention,      the

situation of the parties, the attendant circumstances, and the

objects they were thereby striving to attain are necessarily to

be regarded.'"              Lederman, supra, 385 N.J. Super. at 339 (quoting

Biovail Corp. Int'l v. Hoechst Aktiengesellschaft, 49 F. Supp.

2d   750,       774    (D.N.J.       1999)).           "'[C]ourts        should       interpret     a

contract        considering          the   objective          intent      manifested         in   the

language        of     the     contract        in       light       of      the    circumstances

surrounding           the    transaction.'"             Id.    at     340      (quoting      Biovail




                                                  10                                      A-0897-12T1
Corp.,   supra,   49    F.   Supp.   2d    at   774)     (internal    quotation

omitted).

            Significantly, our Supreme Court has held
            that "the legal effect of a release on other
            parties should be determined by the intent
            of the parties to the release, with due
            consideration being given to whether the
            compensation   paid  was   fully    adequate."
            Cartel Capital Corp. v. Fireco of N.J., 81
            N.J. 548, 559 (1980).     Similarly, we have
            observed that "a release of a defendant will
            release him only in respect of those claims
            by those parties as are actually or intended
            to be encompassed thereby."      Goncalvez v.
            Patuto, 188 N.J. Super. 620, 629 (App. Div.
            1983).   "[A] release is merely a form of
            contract and the general rules that apply to
            contract interpretation apply to releases."
            Domanske v. Rapid-American Corp., 330 N.J.
            Super. 241, 246 (App. Div. 2000).

            [Sweeney v. Sweeney, 405 N.J. Super. 586,
            596-97 (App. Div.), certif. denied, 199 N.J.
            519 (2009).]

       Contractual     interpretation,      such   as    of   the    settlement

agreement at issue here, is a legal matter ordinarily suitable

for resolution on summary judgment.                Celanese Ltd. v. Essex

Cnty. Improvement Auth., 404 N.J. Super. 514, 528 (App. Div.

2009).    The touchstone for interpretation is the parties' shared

intent in reaching the agreement, Pacifico v. Pacifico, 190 N.J.

258, 266 (2007), and, so long as that intent is evident from the

contract's    clear,    unambiguous       terms,   the    agreement    will   be

enforced as written.         Karl's Sales, supra, 249 N.J. Super. at

493.



                                      11                               A-0897-12T1
       To the extent any ambiguity exists, that is, to the extent

that     a    contractual          term   is    susceptible      of     more      than   one

reasonable        interpretation,         Powell     v.   Alemaz,      Inc.,      335    N.J.

Super. 33, 44 (App. Div. 2000), a court may discern the parties'

intent       from    evidence        bearing    on    the    circumstances         of    the

agreement's formation, Conway v. 287 Corporate Ctr. Assocs., 187

N.J. 259, 269 (2006), and of the parties' behavior in carrying

out its terms, Savarese v. Corcoran, 311 N.J. Super. 240, 248

(Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998).

The    required       factual       inquiry    to    resolve    any        such   ambiguity

typically precludes summary judgment unless the evidence is so

one-sided as to compel judgment as a matter of law for one party

or the other.             Great Atl. & Pac. Tea Co., Inc. v. Checchio, 335

N.J. Super. 495, 502 (App. Div. 2000).

       The agreement here plainly provided that defendants would

have    to    timely        pay    the    settlement      amount      by    certified     or

attorney trust account check, that Julia would guarantee the

obligation if payment were not made in that manner, and that

only "[u]pon full payment in accordance" with the terms of the

agreement, would the stipulation of dismissal be filed.                                  The

parties      do     not    dispute    that     defendants      timely       presented    two

cashier's checks totaling the full amount of their settlement

obligation          and     that     plaintiffs      filed     the      stipulation       of




                                               12                                  A-0897-12T1
dismissal.      The checks were honored, and the funds were neither

counterfeit nor stolen.

       Ordinarily, cashier's checks are the functional equivalent

to cash, Parks v. Commerce Bank, 377 N.J. Super. 378, 380 (App.

Div.   2005),    and    "[u]nless        otherwise   agreed,     if   a   certified

check,   cashier's      check,      or    teller's   check   is    taken    for    an

obligation, the obligation is discharged to the same extent that

discharge would result if an amount of money equal to the amount

of the instrument were taken in payment of the obligation."

N.J.S.A. 12A:3-310(a).           Moreover, Margolis accepted the checks

notwithstanding        that   one    clearly     listed    someone    other    than

defendants as the remitter, and Globe filed the stipulation of

dismissal,      confirming    its        understanding    that    defendants      had

satisfied the terms of the agreement.                See Savarese, supra, 311

N.J. Super. at 248 (intent of parties may be discerned from

their behavior in carrying out the agreement).                    In other words,

defendants satisfied those terms no matter whose funds were used

to pay the settlement.           Consequently, the primary dispute here,

ownership of the funds, is not one of material fact with regard

to this particular theory of liability, and defendants should

have been granted summary judgment on the breach of contract

claim.




                                           13                              A-0897-12T1
      Nor,        for    that     matter,       may      plaintiffs      pursue        their

indemnification claim specifically against Julia as guarantor.

The   settlement          agreement      explicitly        provided      that     Julia's

obligation in that capacity was only triggered insofar as Ilya

failed to timely deliver payment by certified or attorney trust

account check.            Because he discharged that obligation,                       Julia

may   no   longer        be    called   upon      to    satisfy   the    terms    of     the

settlement agreement as guarantor.                     See Ctr. 48 Ltd. P'ship v.

May Dep't Stores Co., 355 N.J. Super. 390, 405 (App. Div. 2002)

(explaining that a "guarantor is not bound beyond the strict

terms of its promise and its obligation cannot be extended by

implication").

      That said, both defendants may still have liability here.

The   trier       of    fact    could   find,     for    example,     that   defendants

arranged the transfer knowing that the funds would likely be

subject      to    recovery       in    an     impending     bankruptcy         with     the

intention that Globe thereby unknowingly risks losing the benefit

of the agreement.              In that case, defendants could be liable for

breach of an implied covenant of good faith and fair dealing,

Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 420 (1997),

despite      their       compliance      with      the     express      terms     of     the

settlement agreement, Wilson v. Amerada Hess Corp., 168 N.J.




                                             14                                   A-0897-12T1
236, 244 (2001).3           If it is found, based upon any additional

evidence presented, defendants knowingly misrepresented to Globe

there   would    be    no    such     risk,    with    the   intention     that     Globe

reasonably rely on that misrepresentation in order to agree to

the settlement, defendants could be liable for fraud.                             Gennari

v. Weichert Co. Realtors, 148 N.J. 582, 610 (1997).

    Moreover, even in the absence of bad faith or fraud on

defendants'      part,        there     remains       a    common-law       claim      for

indemnification.        Ilya was undisputedly the one who arranged the

transfers,      and    both    defendants          were    beneficiaries     of     those

transfers       insofar        as     they         satisfied      their     settlement

obligations.          If the evidence establishes the transfers were

fraudulent      and     plaintiffs        accepted         them    in     good    faith,

plaintiffs      could       equitably     call        at   least    upon     Ilya      for

indemnification, particularly under the peculiar circumstances

of this case.         See Ramos v. Browning Ferris Indus. of S. Jersey,

Inc., 103 N.J. 177, 190 (1986) (noting that "one who in good

faith and at the direction of another commits a tort is allowed

indemnity against the person who caused him to act"); see also

3
  To be sure, this course of conduct would also constitute a
breach of contract, 1266 Apartment Corp. v. New Horizon Deli,
Inc., 368 N.J. Super. 456, 461 (App. Div. 2004), in the sense
that the breach is of a covenant implied in the contract,
Wilson, supra, 168 N.J. at 244.    But our courts also recognize
breach of the implied covenant as a separate cause of action,
see id. at 240, 244, and plaintiffs pleaded it as such here.



                                              15                                 A-0897-12T1
Promaulayko v. Johns Manville Sales Corp., 116 N.J. 505, 511

(1989)    (explaining    common-law        indemnity          as     an      equitable

doctrine).      Alternatively, defendants could be held liable for

unjust enrichment to the extent that they received the benefit

of the transfers, and the trial court concludes that it would be

inequitable     to   permit    them   to    keep    that           benefit     without

remunerating plaintiffs.        Callano v. Oakwood Park Homes Corp.,

91 N.J. Super. 105, 108-09 (App. Div. 1966).

     Plaintiffs have advanced all of these claims.                        Whether any

would prove successful in a trial, of course, would depend on

whether   the   funds   were   actually    subject       to    recovery        in   the

bankruptcy action.      Further, to the extent any of the theories

of liability advanced here sound in equity, recovery would be

premised upon plaintiffs' good faith and the reasonableness of

their settlement with the bankruptcy trustee.                 Worthy of note in

this regard is that Margolis appears to have had significant

basis upon which to avoid liability in the adversary proceeding

as a "mere conduit" of the funds to its client, rather than as

an   "initial    transferee"     liable     to     the    estate          under     the

bankruptcy code, Gropper v. Unitrac, S.A. (In re Fabric Buys of

Jericho, Inc.), 33 B.R. 334, 336-37 (Bankr. S.D.N.Y. 1983), even

if, as the case may be here, it kept its fee and remitted only

the balance to Globe, Kirschenbaum v. Leeds Morelli & Brown P.C.




                                      16                                      A-0897-12T1
(In re Robert Plan of N.Y. Corp.), 456 B.R. 150, 159-60 (Bankr.

E.D.N.Y. 2011).    For reasons not apparent in the record, it did

not   pursue    this    defense        in     the    adversary       proceeding.

Consideration of its failure to do so, along with the weighing

of any equities, would be relevant to any award of attorney's

fees to it, as well.

      In sum, I dissent, as the judgment in plaintiffs' favor

should be reversed, and the matter remanded for dismissal of

plaintiffs'    breach   of    contract         claim,    as   well    as      their

indemnification   claim      against        Julia   as   guarantor,    and       for

further proceedings on their remaining claims.




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