                                       NOT FOR PUBLICATION WITHOUT THE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.




                                                               SUPERIOR COURT OF NEW JERSEY
                                                               APPELLATE DIVISION
                                                               DOCKET NO. A-1016-16T1

SMS FINANCIAL XXIX, LLC, as
Assignee of FULTON BANK
NATIONAL ASSOCIATION,
Successor by Merger to THE BANK,
Successor by Merger to FIRST
WASHINGTON STATE BANK,

           Plaintiff–Respondent,

v.

MARK O'DEA,

           Defendant–Appellant,

and

STUART CAROTHERS, JR.,
and CYNTHIA C. CAROTHERS,

     Defendants.
_____________________________

                     Argued April 26, 2018 – Decided September 12, 2018

                     Before Judges Simonelli and Rothstadt.
            On appeal from Superior Court of New Jersey,
            Chancery Division, Mercer County, Docket No. F-
            047339-10.
            Brian H. Fenlon argued the cause for appellant (Carella,
            Byrne, Cecchi, Olstein, Brody & Agnello, PC,
            attorneys; Brian H. Fenlon, of counsel and on the
            briefs).

            Charles A. Gruen argued the cause for respondent (Law
            Offices of Charles A. Gruen, attorneys; Charles A.
            Gruen, of counsel and on the brief; Rosa Amica-Terra,
            on the brief).

PER CURIAM

      Defendant Mark O'Dea appeals from the May 20, 2016 Chancery Division

order, which suppressed his answer with prejudice, established the right of

plaintiff SMS Financial XXIX, LLC, as assignee of Fulton Bank National

Association (Fulton), successor by merger to The Bank, successor by merger to

First Washington State Bank (FWSB), to foreclose on his property. Defendant

also appeals from the September 23, 2016 final judgment of foreclosure. For

the following reasons, we affirm.

      On May 25, 2006, O'Dea executed an adjustable rate note to FWSB in the

amount of $300,000, due and payable in full by May 25, 2007. To secure

payment of the note, O'Dea executed two mortgages to FWSB: one on his

property located on South Main Street in Pennington (the South Main Street

property), and the other on his two properties located on East Delaware Avenue

                                                                        A-1016-16T1
                                       2
in Pennington (the East Delaware Avenue properties). The two mortgages

contained the following provision:

             Amendments. This Mortgage, together with any
             Related Documents[ 1], constitutes the entire
             understanding and agreement of the parties as to the
             matters set forth in the Mortgage. No alteration of or
             amendment to this Mortgage shall be effective unless
             given in writing and signed by the party or parties
             sought to be charged or bound by the alteration or
             amendment.

             [(Emphasis added).]

O'Dea also executed a Business Loan Agreement, Commercial Security

Agreement, and Statement of Business Purpose, wherein he represented and

warranted that the "proceeds of the loan [would] be used in a business

enterprise." O'Dea does not dispute the validity of any of these documents.

      On February 10, 2007, The Bank became successor by merger to FWSB.

On March 7, 2008, O'Dea executed a supplement to the note to The Bank, which

amended the original note to increase the loan amount to $833,000, due and

payable on January 25, 2009. O'Dea also executed mortgage modification

agreements in favor of The Bank on the South Main Street property and East

Delaware Avenue properties. The mortgage modification agreements provided


1
  The mortgages defined "Related Documents," in part, as "all promissory notes, credit
agreements, [and] loan agreements[.]"
                                                                               A-1016-16T1
                                          3
that the terms of the original mortgages remained in full force and effect. O'Dea

does not dispute the validity of these documents.

      After O'Dea began construction on the South Main Street property, a

dispute arose between him and his neighbors, the Carothers, regarding his access

to their property to complete the construction. In August 2007, O'Dea filed a

complaint against the Carothers, and in September 2007, the Carothers filed a

counterclaim and lis pendens on the South Main Street property. O'Dea did not

notify The Bank of the lis pendens.

      On June 5, 2008, O'Dea and the Carothers entered into a settlement

agreement, whereby O'Dea agreed to pay them $10,000 to access their property

and an additional $3000 for a permanent easement on their property to construct,

maintain, and upgrade a drainage facility. O'Dea also agreed to complete the

construction no later than December 1, 2008, and pay the Carothers $150 per

day for every day the construction was not completed. The Carothers agreed to

discharge the lis pendens when O'Dea completed the construction.

      O'Dea failed to make payments on the note after March 31, 2010, and The

Bank declared him in default on April 25, 2010. Instead of foreclosing on the

mortgages, on June 24, 2010, The Bank proposed two "Workout Agreement"

scenarios to O'Dea, the second of which provided as follows:


                                                                          A-1016-16T1
                                       4
                   [O'Dea] will offer The Bank a [d]eed in [l]ieu of
            [f]oreclosure on [the] South Main Street [property]
            subject to real estate taxes paid current by [O'Dea] and
            clear title being delivered to The Bank;

                  [O'Dea] will allow The Bank a [thirty]-day due
            diligence period to inspect all improvements to the
            property and to review all records with the building
            department in Pennington, NJ as well as obtain
            documentation as to the historical records of the
            property;

                  [O'Dea] will offer The Bank a $75,000.00 fixed
            deficiency note secured by a lien on [the] East
            Delaware Avenue [properties], with repayment terms to
            be determined between [O'Dea] and The Bank.

O'Dea notified The Bank he was willing to proceed with this scenario, except

for the $75,000 note. He counteroffered with a $20,000 note, which The Bank

did not accept.

      The Bank subsequently performed a title search of the mortgaged

properties and discovered the lis pendens on the South Main Street property.

Because O'Dea could not convey clear title to the property due to the lis pendens,

on September 22, 2010, The Bank filed a foreclosure complaint against him and

the Carothers. The court entered default against O'Dea on September 21, 2011,

for failure to plead or otherwise defend. The Carothers filed an answer, alleging

their lis pendens had priority over the mortgage on the South Main Street

property.

                                                                           A-1016-16T1
                                        5
      In the meantime, a dispute arose between O'Dea and the Carothers as to

whether O'Dea completed the construction on the South Main Street property.

As a result, O'Dea did not pay the $3000 for the easement and the Carothers did

not discharge the lis pendens or record the easement. The dispute was submitted

to arbitration after the court denied O'Dea's motion to enforce the settlement.

      In his June 22, 2011 arbitrator's determination, the arbitrator found O'Dea

took no action to acquire the necessary municipal approval to confirm he

completed the construction. The arbitrator found that O'Dea's failure to confirm

completion "placed [the Carothers] in a positon of uncertainty and necessitated

their expenditure of substantial attorney's fees and costs associated with

[O'Dea's] previous motion to enforce the [s]ettlement [a]greement and for the

conduct of [the] arbitration." Thus, the arbitrator awarded the Carothers counsel

fees and costs in the amount of $6797. The arbitrator also required O'Dea to

pay the Carothers $3000 for the easement and record the easement. Upon

satisfaction of these obligations, the Carothers were to discharge the lis pendens.

The arbitrator required all obligations to be completed within thirty days.

      O'Dea did not comply with the arbitrator's determination. As a result, the

lis pendens remained on the South Main Street property.           The Carothers'

attorney, Thomas P. Frascella, Esq., advised The Bank that O'Dea's attorney


                                                                              A-1016-16T1
                                        6
indicated it was unlikely O'Dea would make the payments required by the

arbitrator's determination. As a result, The Bank began settlement negotiations

with O'Dea and the Carothers.

      In October 2011, The Bank sent O'Dea a proposed settlement agreement,

which required him to:

            Execute a deed in lieu of foreclosure on the South Main
            Street property;

            Provide The Bank with copies of the plans for the
            construction on the South Main Street property;

            Repay $27,000 plus interest at the rate of 5.5% per
            annum by April 1, 2013;

            Deliver the original permanent easement in recordable
            form from the Carothers and pay them the required
            $3000; and

            Cause the Carothers to discharge the lis pendens.

The Bank agreed to advance $7000 to O'Dea's attorney, William Robertson,

Esq., to be held in his attorney trust account and applied to the payments the

arbitrator's determination required O'Dea to make. O'Dea did not sign the

proposed settlement agreement or comply with its terms.

      In November 2011, Fulton, successor by merger to The Bank, sent O'Dea

a second proposed settlement agreement, which was identical to the first

proposed settlement agreement, except it named Fulton as the lender, replaced

                                                                         A-1016-16T1
                                       7
Robertson with O'Dea's new attorney, Lawrence Wohl, Esq., and extended the

payment date for the $27,000 note to May 1, 2013 (the November 2011 proposed

settlement agreement).       O'Dea did not sign the November 2011 proposed

settlement agreement or comply with its terms.

        In December 2011, Fulton and the Carothers entered into a settlement

agreement, whereby Fulton paid them $15,000 to satisfy O'Dea's obligation

under the arbitrator's determination. The Bank also agreed to have the $3000

easement fee released from Wohl's trust account.2 Fulton also agreed it would

dismiss the Carothers from this matter upon receipt of a recorded discharge of

lis pendens. The Carothers agreed to provide an access, maintenance, and

drainage easement agreement in recordable form 3 and discharge the lis pendens.

The Carothers were subsequently dismissed from this matter.

        Thereafter, in February 2012, Fulton sent O'Dea a third proposed

settlement agreement, which was identical to the November 2011 proposed

settlement agreement, except the note amount was increased to $38,459.62 plus

interest to be paid by October 1, 2013 (the February 2012 proposed settlement

agreement). Of this sum, Fulton would pay $20,000 to O'Dea, $3,459.62 to the


2
    Wohl did not send the $3000 to the Carothers until May 22, 2012.
3
    O'Dea did not sign the easement agreement until after May 2012.
                                                                        A-1016-16T1
                                            8
arbitrator for his fee, and $15,000 to the Carothers to satisfy O'Dea's obligation

under the arbitrator's determination. O'Dea did not sign the February 2012

proposed settlement agreement or comply with its terms. On March 5, 2012,

Fulton notified O'Dea it was withdrawing its settlement offer.

      On July 24, 2013, Fulton assigned all of its right, title and interest in the

note and mortgages to plaintiff. Plaintiff subsequently filed a motion to enter

final judgment of foreclosure against O'Dea, and O'Dea filed a motion to vacate

the entry of default. In a June 10, 2014 order, Judge Paul Innes: (1) denied

plaintiff's motion without prejudice; (2) stayed the matter for thirty days for

plaintiff to serve O'Dea with a notice of intent to foreclose; (3) denied the

portion of O'Dea's motion to dismiss the complaint; and (4) granted O'Dea's

motion to vacate entry of default.

      Plaintiff then filed an amended foreclosure complaint. O'Dea filed an

answer and counterclaim, seeking to enforce a settlement. The parties engaged

in motion practice thereafter, with Judge Innes eventually granting plaintiff

partial summary judgment on the execution of the note and mortgages, recording

of mortgages, and O'Dea's default.

      Judge Innes held a three day bench trial to determine whether the parties

had entered into an enforceable settlement agreement and, if so, whether O'Dea


                                                                            A-1016-16T1
                                        9
had complied with its terms. O'Dea testified he agreed to the second scenario

in the "Workout Agreement" The Bank sent in June 2011, disagreed with a

$75,000 note, counteroffered a $20,000 note, and believed a settlement was

reached by July 23, 2010 and The Bank would discharge the two mortgages if

he complied with the settlement terms. O'Dea also testified that after July 2010,

the note amount increased to $27,000.        He admitted he did not sign the

November 2011 proposed settlement agreement or provide a deed in lieu of

foreclosure. He also admitted he did not instruct his attorney to file a motion to

enforce the settlement for five years and three months after the parties allegedly

reached a settlement.

      Robertson testified he believed the parties reached a settlement in July

2010, but admitted there remained a dispute over the note amount. He testified

that he received the February 2012 proposed settlement agreement, which

increased the note amount from $27,000 to approximately $38,800, but the other

settlement terms were consistent with the prior proposed settlement agreements.

      Robertson admitted he understood there would be a written settlement

agreement, and that O'Dea did not sign a settlement agreement or deed in lieu

of foreclosure. He also admitted O'Dea told him he agreed to the terms of the




                                                                           A-1016-16T1
                                       10
November 2011 proposed settlement agreement, but he, Robertson, never

relayed that information to The Bank.

      The Bank's/Fulton's attorney, Lee Albertson, Esq., testified that The Bank

and O'Dea attempted to negotiate a settlement, but no settlement was reached

because the parties could not agree on the note amount. Albertson also testified

that Robertson never advised him O'Dea agreed to a $38,459.62 note, to pay

$3,459.69 to the arbitrator and $15,000 to the Carothers, or that O'Dea was

prepared to sign the February 2012 proposed settlement agreement. Rather,

Robertson counteroffered a $25,000 note, which Albertson understood to be a

rejection of the proposed $38,459.62 note. Albertson testified that Robertson

did not indicate O'Dea would agree to a $38,459.62 note if The Bank rejected

the counteroffer. Lastly, Albertson testified:

            It was The Bank's requirement that the [proposed
            settlement agreement] be in writing and that The Bank
            be in receipt of the deed in lieu of foreclosure, the
            discharge of the lis pendens or proof that the lis pendens
            had been discharged, as well as the original recordable
            easement and access agreement from [the] Carothers,
            either through [T]he [B]ank's recording or previously
            recorded with the county clerk. The reason for that, for
            the writing requirement is that the [S]tatute of [F]rauds
            in New Jersey at the time required that all forbearance
            agreements relating to loans in excess of, I believe the
            amount was [one] hundred thousand dollars had to be
            in writing and signed by the parties who, you know, if
            enforcement was being sought, it had to be signed by

                                                                          A-1016-16T1
                                        11
            the party who was being charged. And [T]he [B]ank,
            obviously, wanted that in the event that there was a
            subsequent default in the [settlement] agreement.

      The Bank's/Fulton's representative, Robert Ahrens, who negotiated with

O'Dea, testified that on June 24, 2010, he sent O'Dea a "proposed framework of

the settlement agreement, or workout agreement," which provided O'Dea with

two scenarios. He did not recall whether O'Dea agreed to either scenario, but

recalled O'Dea agreed to provide a deed in lieu of foreclosure on the South Main

Street property.   He testified that The Bank required all agreements with

borrowers to be in writing, and there was no written agreement in this case. He

also testified he was involved in between fifty and one hundred workout

agreements in the course of his ten-year employment with The Bank, and all had

written agreements.

      In his May 5, 2016 written opinion, Judge Innes first addressed credibility

and found as follows:

                  Based upon the court's opportunity to observe the
            witnesses while they were testifying and the manner in
            which the witnesses testified, the court finds that
            Albertson and Ahrens were the more credible
            witnesses. Albertson and Ahrens had good recall of the
            events and the communications they conducted. As
            they have both left their former employment with The
            Bank and Fulton, they have no interest in the litigation.



                                                                          A-1016-16T1
                                      12
       Albertson especially testified clearly and
cogently.      He recalled his conversations with
Robertson, Ahrens and Frascella. Most of the facts
testified to by him were confirmed by the documentary
evidence presented at trial, including the email
communications.

       O'Dea, on the other hand, has a substantial
financial interest in this litigation. His ownership in the
real property is at serious risk.

      O'Dea failed to provide direct answers to the
questions posed to him.          He often volunteered
gratuitous comments which did not ring true. For
example, he testified that the original loans were done
"on a handshake," when, in fact, there were loan
documents executed in connection with the original
$300,000 loan. He testified that his loan rate was
"astronomical." When questioned by the court, he
advised the court that the rate was 8%. He also testified
he had paid the monies owed in connection with the
Carothers settlement and obtained the discharge of the
lis pendens, when in fact he had not done so. The
monies were paid by plaintiff in order to facilitate the
completion of the foreclosure matter. And, the bank
representatives obtained the discharge of the lis
pendens from the Carothers[].

      It is also clear that O'Dea never disclosed the
existence of the lis pendens to the bank during the
negotiations. The bank only discovered the lis pendens
when it ordered a title search in connection with the
foreclosure of the mortgage.

      Robertson seemed to have poor recollection of
the events and circumstances involved in the
negotiations. His recollection as to important details
proved inaccurate. One example of his inaccuracy was

                                                              A-1016-16T1
                           13
             his testimony that O'Dea had provided the discharge of
             the lis pendens to the bank. It is clear to the court that
             the bank only obtained the discharge of the lis pendens
             through the efforts of Albertson in his dealings with
             counsel for the Carothers[].

      Judge Innes then quoted the Statute of Frauds, which provides as follows,

in pertinent part:

                     No action shall be brought upon any of the
                     following agreements or promises, unless
                     the agreement or promise, upon which such
                     action shall be brought or some
                     memorandum or note thereof, shall be in
                     writing, and signed by the party to be
                     charged therewith, or by some other person
                     thereunto by him lawfully authorized.

                           ....

                     f.    A contract, promise, undertaking or
                     commitment to loan money or to grant,
                     extend or renew credit, in an amount
                     greater than $100,000, not primarily for
                     personal, family or household purposes,
                     made by a person engaged in the business
                     of lending or arranging for the lending of
                     money or extending credit.        For the
                     purposes of this subsection, a contract,
                     promise, undertaking or commitment to
                     loan money shall include agreements to
                     lease personal property if the lease if
                     primarily a method of financing the
                     obtaining of the property;

                     g.    An agreement by a creditor to
                     forbear from exercising remedies pursuant

                                                                          A-1016-16T1
                                        14
                   to a contract, promise, undertaking or
                   commitment which is subject to the
                   provisions of subsection f of this section[.]

                   [N.J.S.A. 25:1-5(f) and (g).]


The judge found the statute "clearly requires a signed writing in order for a valid

'agreement by a creditor to forbear from exercising remedies pursuant to a

contract, promise, undertaking or commitment' on a commercial loan over

$100,000 to be enforced." The judge noted:

            When O'Dea first entered into the loan transaction, he
            executed the Statement of Business Purpose. . . . In that
            statement, O'Dea represented and warranted that the
            "proceeds of the loan [would] be used in a business
            enterprise." As the loan in this case is a commercial
            mortgage in excess of $100,000, any settlement
            agreement calling for forbearance by the creditor is
            required to be in writing pursuant to the [Statute of
            Frauds].

The judge further found that, in addition to the requirements of the Statute of

Frauds, the original mortgages required any changes to be in writing, and O'Dea

reaffirmed the terms of the original mortgages when he executed the mortgage

modification agreements in March 2008.

      Judge Innes rejected O'Dea's reliance on McBarron v. Kipling Woods,

L.L.C., 365 N.J. Super. 114 (App. Div. 2004) to support his argument that the

writing requirement in the Statute of Frauds did not apply to this case. The judge

                                                                            A-1016-16T1
                                       15
found McBarron involved the sale of property, and N.J.S.A. 25:1-13 provides

an exception to the writing requirement for sale of real property where the party

can demonstrate proof of an oral agreement by clear and convincing evidence.

This case, however, involved an alleged agreement to forbear on a commercial

loan in an amount over $100,000, and as such, N.J.S.A. 25:1-5(f) required a

writing and an oral agreement was not binding, even if proved by clear and

convincing evidence.

        Judge Innes determined that even if the Statute of Frauds did not apply,

O'Dea failed to prove there was a settlement agreement by clear and convincing

evidence. The judge found that although the parties engaged in settlement

negotiations, plaintiff always insisted that any agreement was to be in writing;

the mortgage required any change to be in writing; and O'Dea testified he always

expected a fully delineated written agreement at the end of negotiations. The

judge concluded O'Dea failed to demonstrate the parties had a clear meeting of

the minds regarding the essential terms of an agreement. The judge emphasized

that O'Dea's execution of a note was an essential term throughout the

negotiations, and the parties never reached an agreement on the amount of the

note.




                                                                          A-1016-16T1
                                       16
      Judge Innes also found The Bank's/Fulton's offer to accept the deed in lieu

of foreclosure on the South Main Street property was conditioned on obtaining

clear title to the property. Once The Bank/Fulton discovered the lis pendens, it

required a discharge in order to clear title as a condition of the settlement

agreement. The judge concluded that O'Dea never discharged the lis pendens

and provided clear title. Instead, The Bank/Fulton obtained the discharge of the

lis pendens through its own efforts.

      Lastly, Judge Innes determined that, even if there was a settlement

agreement, the evidence clearly showed O'Dea failed to perform his obligations

thereunder. The judge found O'Dea did not perform all of his obligations to

settle the Carothers' matter in a timely fashion; failed to provide the deed in lieu

of foreclosure for the South Main Street property; failed to provide clear title to

the property, which was a contingency of the deed in lieu of foreclosure; and did

not obtain discharge of the lis pendens. Further, O'Dea provided no proof

supporting his claim that he paid the Carothers $3000 for the ease ment and

actually cleared title to the property.

      In a May 20, 2016 order, Judge Innes established plaintiff's right to

foreclose, suppressed O'Dea's answer and counterclaim with prejudice, entered

default against O'Dea, an referred the matter to the Office of Foreclosure for


                                                                             A-1016-16T1
                                          17
further proceedings and entry of final judgment. The judge entered a final

judgment of foreclosure on September 23, 2016. This appeal followed.

      On appeal, O'Dea contends Judge Innes erred in finding he failed to prove

there was a binding settlement agreement by clear and convincing evidence.

O'Dea also contends the judge erred in finding he did not perform his obligations

under the settlement agreement, and in ignoring The Bank's/Fulton's inequitable

conduct. O'Dea further argues the judge erred in ruling the Statute of Frauds

barred the settlement by misapplying N.J.S.A. 25:1-5(f) and (g) instead of

N.J.S.A. 25:1-13(b), and in failing to rule that his partial performance and

promissory estoppel took the settlement out of the Statute of Frauds.

      Our review of a trial court's fact-finding in a non-jury case is limited.

Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011). "The general

rule is that findings by the trial court are binding on appeal when supported by

adequate, substantial, credible evidence. Deference is especially appropriate

when the evidence is largely testimonial and involves questions of credibility."

Ibid. (quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). We "should not

disturb the factual findings and legal conclusions of the trial judge unless [we

are] convinced that they are so manifestly unsupported by or inconsistent with




                                                                          A-1016-16T1
                                      18
the competent, relevant and reasonably credible evidence as to offend the

interests of justice." Ibid.

      We have considered O'Dea's contentions in light of the record and

applicable legal principles and conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for

the reasons Judge Innes expressed in his comprehensive and cogent written

opinion, which the record amply supports. However, we make the following

brief comments.

      N.J.S.A. 25:1-13(b) provides as follows, in pertinent part:

             An agreement to transfer an interest in real estate or to
             hold an interest in real estate for the benefit of another
             shall not be enforceable unless:

                   ....

             b.    a description of the real estate sufficient to
             identify it, the nature of the interest to be transferred,
             the existence of the agreement and the identity of the
             transferor and the transferee are proved by clear and
             convincing evidence.

      The statute does not apply because the transaction here was not "[a]n

agreement to transfer an interest in real estate or hold an interest in real estate

for the benefit of another." Rather, the transaction was a commercial loan

transaction, as clearly evidenced by the documents in the record, and the loan


                                                                            A-1016-16T1
                                        19
was for an amount over $100,000 and for a business purpose. The note had

matured, the balance was due in full, O'Dea defaulted, and The Bank/Fulton

refrained from proceeding with exercising its right under the note and mortgages

to proceed with foreclosure by entering into settlement negotiations.

Accordingly, N.J.S.A. 25:1-5(f) and (g) applied and required the settlement

agreement to be in writing.

      Even if the Statute of Frauds did not apply, there was no contract in this

case, either oral or implied-in-fact. A settlement of a legal claim between parties

is a contract like any other contract. Nolan v. Lee Ho, 120 N.J. 465, 472 (1990).

As our Supreme Court held long ago,

            a contract does not come into being unless there be a
            manifestation of mutual assent by the parties to the
            same terms; and, while the manifestation of mutual
            assent is usually had by an offer and an acceptance
            either in words or by conduct, it is elementary that there
            can be no operative acceptance by acts or conduct
            unless the offeree's assent to the offer according to its
            terms is thereby unequivocally shown. There must . . .
            be an agreement – a "meeting of the minds" on the
            subject matter, to use a classic time-honored term, or
            there is no legally enforceable obligation.            An
            expression of assent that modifies the substance of the
            tender, while it may be operative as a counter-offer, is
            yet not an acceptance and does not consummate a
            contract.

            [Johnson & Johnson v. Charmley Drug Co., 11 N.J.
            526, 538 (1953).]

                                                                            A-1016-16T1
                                       20
"Where the parties do not agree to one or more essential terms . . . courts

generally hold that the agreement is unenforceable." Weichert Co. Realtors v.

Ryan, 128 N.J. 427, 435 (1992). Therefore, a settlement is not enforceable until

the parties have agreed on all essential terms. Mosley v. Femina Fashions, Inc.,

356 N.J. Super. 118, 126 (App. Div. 2002).

      Here, the parties never agreed on an essential term of the alleged

settlement agreement -- the amount of the note. The parties made offers and

counteroffers of the note amount, but neither party accepted the offers. There

clearly was no "meeting of the minds" regarding this essential term, and thus,

no valid contract between the parties. Because there was no contract, there was

no breach by The Bank/Fulton, anticipatory or otherwise.

      Even if there was a contract, O'Dea breached it by failing to perform any

of its terms.   He did not provide The Bank/Fulton with a deed in lieu of

foreclosure, clear title to the South Main Street property, or copies of the

construction plans to The Bank/Fulton, and did not obtain a discharge of the lis

pendens, pay $3000 to the Carothers, or obtain the easement. The record belies

his claim of partial performance.

      Affirmed.



                                                                          A-1016-16T1
                                      21
