                                NOT FOR PUBLICATION WITHOUT THE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-3423-17T1

VALLEY NATIONAL BANK,

          Plaintiff-Respondent,

v.

PATYRAK REALTY, LLC,

          Defendant,

and

JAMES PATYRAK and DEBORAH
PATYRAK,

     Defendants-Appellants.
________________________________

                    Argued March 12, 2019 – Decided April 29, 2019

                    Before Judges Yannotti, Rothstadt, and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Morris County, Docket No. L-2059-11.

                    Wolfgang G. Robinson argued the cause for appellants.

                    James H. Forte argued the cause for respondent (Saiber
                    LLC, attorneys; James H. Forte, on the brief).
PER CURIAM

      This appeal arises out of a default of a commercial loan and guaranties of

that loan. Defendants James and Deborah Patyrak appeal from three orders

entered on March 12, 2018, which (1) granted summary judgment to plaintiff

Valley National Bank (Bank or plaintiff) on the Patyraks' "supplemental"

counterclaims and dismissed those counterclaims, (2) denied summary judgment

to the Patyraks, and (3) denied the Patyraks' motion to compel discovery from

the Bank. In entering those orders, the trial court found that the Patyraks had

settled the remaining disputes with the Bank. We agree and affirm.

                                         I.

      In 2007, Patyrak Realty, LLC (P. Realty) borrowed $750,000 from the

Bank and executed a note promising to repay that loan in monthly installments

over the next twenty-five years. The note provided that if P. Realty defaulted,

the Bank could demand the entire remaining amount due and could collect t hat

amount immediately. The note was secured by a mortgage on commercial

property located in Warren Township.

      The Patyraks both executed guaranties, agreeing that if P. Realty failed to

pay its obligations under the note or mortgage, they would pay those obligations.

In that regard, the guaranties stated:


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            I guarantee to you[, the Bank,] that every Obligation
            will be paid when it is due, no matter what may happen.
            This means that you can demand payment from me if
            [P. Realty] fails to pay you in full for all of the
            Obligation.

            . . . . This guaranty covers all of the Obligations,
            including, without limitation, the Note and the
            Mortgage.

      In 2011, P. Realty ceased paying the amounts due under the note.

Accordingly, in June 2011, the Bank declared P. Realty in default, accelerated

the outstanding balance of the loan, and demanded full payment. That written

demand was sent to P. Realty and the Patyraks.

      Neither P. Realty nor the Patyraks cured the default. Accordingly, the

Bank commenced two legal actions. First, in July 2011, it sued P. Realty and

the Patyraks on the note and the guaranties (the Note Action). Second, in

September 2011, it filed a foreclosure complaint, seeking to foreclose on the

mortgaged property (the Foreclosure Action).

      On August 1, 2013, a final judgment was entered in the Foreclosure

Action. Under that final judgment, the Bank was awarded $902,121.90, together

with interest and "costs to be taxed, including a counsel fee of $7,500.00[.]" On

December 3, 2013, the mortgaged property was sold at a sheriff's sale for

$810,000. After deducting the sheriff's commission and related costs, the Bank


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                                       3
received $777,887.40. There was no appeal from the final judgment entered in

the Foreclosure Action.

      Meanwhile, in the Note Action, P. Realty and the Patyraks initially failed

to respond to the complaint and a default was entered against them. The trial

court later set aside the default against the Patyraks, and the Patyraks filed an

answer and cross-claim against P. Realty. In addition, the Patyraks asserted

counterclaims against the Bank for breach of federal and state banking laws,

tortious interference with economic advantage, and violation of the Consumer

Fraud Act (CFA), N.J.S.A. 56:8-1 to -210.

      In April 2014, after the Bank had received the proceeds from the sale of

the mortgaged property, it moved for summary judgment against the Patyraks

on its claims under the guaranties of the note. In support of that motion, the

Bank submitted a certification of a vice president who asserted that, after

accounting for the $777,887.40, a total of $286,476.31 was due, which included

$226,168.66 in principal; $2,095.21 in interest; $57,068.78 for taxes paid;

$306.28 in late charges; and $837.38 for legal fees.

      The Patyraks opposed the Bank's motion and submitted certifications

challenging the amount due. The Patyraks also argued that they were entitled




                                                                         A-3423-17T1
                                       4
to a credit for the difference between the sales price of the mortgaged property

and its fair market value.

      On June 20, 2014, the trial court ruled that the Bank was entitled to

summary judgment and rejected the Patyraks' contention that there were genuine

issues of material fact as to the amount due. Accordingly, that same day, the

trial court entered a judgment for the Bank in the amount of $290,940.21, which

included the total amount as set forth in the Bank's certification, plus additional

interest of $45.55 per day that had accrued since the balance due was calculated

by the Bank on March 14, 2014. Thereafter, the Patyraks filed a motion for

reconsideration of the judgment, which the court denied on October 24, 2014.

      In November 2014, the Bank filed a motion for summary judgment on the

Patyraks' counterclaims. The trial court considered that motion on March 20,

2015, and placed its decision on the record. The trial court found that the Bank

was entitled to summary judgment on each of the Patyraks' counterclaims and,

accordingly, on March 20, 2015, the court entered an order dismissing the

Patyraks' counterclaims with prejudice.

      In April 2015, the Patyraks filed an appeal of the orders granting the

Bank's motions for summary judgment. We affirmed the trial court's order

granting summary judgment to the Bank on the Patyraks' counterclaims. We


                                                                           A-3423-17T1
                                        5
also rejected the Patyraks' contention that they were entitled to a hearing on a

fair market value credit. We did, however, find that there was a genuine issue

of material fact as to the amount due to the Bank under the note and remanded

for further proceedings limited to that issue. Valley Nat'l Bank v. Patyrak

Realty, L.L.C., No. A-3892-14 (App. Div. Oct. 20, 2016) (slip op. at 11, 13).

      Following our remand, the Patyraks filed a motion to vacate the judgment

entered on June 20, 2014. Separately, the Bank filed a motion to reduce the

amount of the judgment from $290,940.21 to $124,234.50.

      The Bank had also taken steps to collect on the judgment. In that regard,

the Bank had docketed the judgment in New Jersey and had retained counsel in

Michigan and Florida to docket the judgment in those states because the Bank

believed that the Patyraks had real and personal property in those states.

      While the motions to vacate the judgment and reduce the judgment were

pending before the trial court, counsel for the Patyraks sent an email to counsel

for the Bank stating: "[I]f [the Patyraks] can satisfy the judgment, will your

office take care of the process to remove the judgment as registered in Michigan

and Florida?" The Bank's counsel responded:

            Yes, [i]f the Bank forthwith receives the $124,234.50 it
            will consider the judgment satisfied in all states. I will
            sign the Warrant to Satisfy Judgment in full for you to
            file with the Court in Trenton and that filed Warrant

                                                                             A-3423-17T1
                                        6
            should then be sent to Patyraks' counsel in Florida and
            Michigan. Let me know if you need wire transfer
            instructions.

      On November 17, 2016, counsel for the Patyraks wrote to the trial court

informing the court that the dispute between the parties had been resolved, but

it might take time to file the warrants to satisfy the judgments in Michigan and

Florida. Therefore, the parties requested the court to put off the hearing on the

pending motions. Specifically, counsel for the Patyraks stated to the court:

            The dispute has been resolved but because the matter
            involves the need to satisfy the judgment in all
            jurisdictions we feel we may not have all mechanics
            worked out by the November 18, 2016 return date. For
            this reason, it is requested that the Motions be carried.

            For informational purposes, the NJ judgment was
            registered in the jurisdictions of Michigan and Florida
            for enforcement purposes. It appears that all parties are
            in agreement as to the mode of satisfaction upon
            payment of the settlement funds, but again, we are not
            certain we can conclude the matter by this afternoon. I
            have advised my client to forward the settlement
            monies by wire presently.

      The Patyraks then wire transferred $124,234.50 to the Bank and the Bank

received that payment. Thereafter, the Bank authorized its counsel to file a

warrant of satisfaction to satisfy the judgment in New Jersey and other

documents were sent to satisfy the judgments that had been docketed in Florida



                                                                         A-3423-17T1
                                       7
and Michigan. The warrant to satisfy the judgment in New Jersey was recorded

on December 15, 2016.

      In May 2017, the Patyraks hired a new lawyer who filed a motion to file

"supplemental" counterclaims. The supplemental counterclaims sought to assert

five claims contending that the Bank had (1) abused process, (2) engaged in

consumer fraud, (3) engaged in fraud, (4) breached the terms of the guaranties,

and (5) breached the covenant of good faith and fair dealing. In July 2017, the

trial court allowed the Patyraks to file the supplemental counterclaims.

      In January 2018, the Bank filed a motion for summary judgment seeking

to dismiss the Patyraks' supplemental counterclaims. The Bank contended that

the supplemental counterclaims were barred because the parties had settled their

remaining differences. The Patyraks opposed that motion and filed a motion for

partial summary judgment seeking to dismiss the Bank's 2011 complaint with

prejudice because they contended that the Bank had assigned the underlying debt

before it filed its complaint.   The Patyraks also filed a motion to compel

discovery from the Bank.

      The trial court heard oral arguments on those motions on March 2, 2018.

Thereafter, on March 12, 2018, the court issued three orders, which (1) denied

the Patyraks' motion for summary judgment; (2) denied the Patyraks' motion to


                                                                           A-3423-17T1
                                       8
compel discovery; and (3) granted summary judgment to the Bank and dismissed

the Patyraks' supplemental counterclaims. In a written statement of reasons that

accompanied the orders, the trial court found that the Patyraks had settled all the

remaining claims with the Bank by paying $124,234.50 in exchange for the

satisfaction of the judgment.

                                        II.

      The Patyraks now appeal the three orders entered on March 12, 2018.

They make two primary arguments. First, they contend that there was no

settlement of their right to pursue additional claims against the Bank.          In

connection with that argument, the Patyraks also assert that there were material

factual disputes concerning whether a settlement had been reached and the scope

of that settlement. Second, the Patyraks argue that the trial court erred in

denying summary judgment in their favor because the Bank did not have the

right to enforce the promissory note. The record does not support either of these

arguments. Accordingly, we reject the Patyraks' arguments and affirm.

      We review de novo orders granting summary judgment, and apply the

same standard that governed the trial court's ruling. Conley v. Guerrero, 228

N.J. 339, 346 (2017). Summary judgment will be granted if, viewing the

evidence in the light most favorable to the non-moving party, "there is no


                                                                           A-3423-17T1
                                        9
genuine issue of material fact and 'the moving party is entitled to a judgment or

order as a matter of law.'" Ibid. (quoting Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, P.A., 224 N.J. 189, 199 (2016)); R. 4:46-2(c).

See also Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474 (App. Div.

2009) (reviewing the interpretation and enforceability of a settlement agreement

de novo).

      A.    The Settlement

      "A settlement agreement between parties to a lawsuit is a contract."

Cumberland Farms, Inc. v. N.J. Dep't Envtl. Prot., 447 N.J. Super. 423, 438

(App. Div. 2016) (quoting Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)).

Accordingly, such agreements "will be honored 'absent a demonstration of fraud

or other compelling circumstances.'" Ibid. (quoting Nolan, 120 N.J. at 472).

The party seeking to enforce the settlement bears the burden of demonstrating

that the parties entered into such an agreement. Ibid. (citing Amatuzzo v.

Kozmiuk, 305 N.J. Super. 469, 475 (App. Div. 1997)).

      To establish a valid agreement, the moving party must show an offer, an

acceptance, consideration, and that the terms of were reasonably certain. See

Id. at 439; Oscar v. Simeonidis, 352 N.J. Super. 476, 484 (App. Div. 2002). In

other words, "[l]ike any contract, a valid settlement agreement requires an 'offer


                                                                          A-3423-17T1
                                       10
and acceptance' by the parties, and the terms of the agreement must 'be

sufficiently definite [so] "that the performance to be rendered by each party can

be ascertained with reasonable certainty."'" GMAC Mortg., LLC v. Willoughby,

230 N.J. 172, 185 (2017) (quoting Weichert Co. Realtors v. Ryan, 128 N.J. 427,

435 (1992)). Moreover, the agreement can be oral; there is no requirement that

it be in writing. Pascarella v. Bruck, 190 N.J. Super. 118, 124 (App. Div. 1983).

      Here, there was a meeting of the minds between the parties and the terms

of the agreement were sufficiently defined. When we remanded the matter to

the trial court, there was one issue to be addressed: the amount of the judgment.

The judgment entered by the trial court on June 20, 2014 was $290,940.21. On

remand, the Bank moved to reduce that judgment to $124,234.50.

      Counsel for the Patyraks then made an offer to pay $124,234.50 in

exchange for satisfaction of the judgment.      The Bank accepted that offer.

Thereafter, consideration was exchanged: the Patyraks paid the $124,234.50

and the Bank issued warrants to satisfy the judgment.

      Furthermore, both parties treated the matter as a settlement. Counsel for

both parties repeatedly referred to the payment and warrant to satisfy as a

"settlement." Indeed, counsel for the Patyraks wrote to the court and advised

that the "dispute has been resolved" and that the Patyraks would be forwarding


                                                                         A-3423-17T1
                                      11
"the settlement monies by wire presently." Nowhere in the exchanges between

counsel for the parties or in the letter to the court was there any reservation of a

right by the Patyraks to pursue future claims against the Bank. Indeed, when

the warrant of satisfaction of the judgment was filed, we had previously affirmed

an order dismissing all counterclaims by the Patyraks against the Bank with

prejudice. See Hagrish v. Olson, 254 N.J. Super. 133, 138 (App. Div. 1992)

(holding that there had been a meeting of the minds concerning a settlement

agreement "despite [one party's] undisclosed intention to preserve a right to

maintain a lawsuit against [the other party]").

      The Patyraks argue that even if they entered into an enforceable settlement

agreement, the agreement should be vacated because their acceptance was

involuntary and enforcing the agreement would subvert the law.                  The

indisputable record in this case, however, establishes that the Patyraks'

acceptance was voluntary. They voluntarily sent $124,234.50 to the Bank.

      Moreover, enforcing the settlement agreement would not subvert the law.

To the contrary, there is a strong public policy in New Jersey favoring settlement

and enforcing those settlements. See, e.g., Brundage v. Estate of Carambio, 195

N.J. 575, 601 (2008); Kaur, 405 N.J. Super. at 475.




                                                                            A-3423-17T1
                                        12
      B.     The Denial of Summary Judgment in Favor of the Patyraks

      The Patyraks also argue that the trial court erred in not granting their

motion for summary judgment. In their motion, the Patyraks sought dismissal

of the Bank's complaint because they contended that the Bank did not have the

right to enforce the note when it filed suit in 2011. The short and definitive

answer to that contention is that the issue of the Bank's right to enforce the note

had previously been resolved in favor of the Bank. As already noted, in their

first appeal to us, the Patyraks did not challenge the Bank's right to enforce the

note and guaranties.    Instead, they limited their challenge to disputing the

amount of the judgment. Thus, when we remanded that matter, the issue of the

Bank's right to enforce the note was no longer open to challenge.

      Nonetheless, the Patyraks argue that they could not have challenged the

Bank's right to enforce the note earlier in the litigation because they first

discovered a mortgage loan assignment agreement between the Bank and a non-

party in 2018, after the trial court had granted their motion to compel additional

discovery.   The existence of that agreement, however, does not entitle the

Patyraks to now seek dismissal of the Bank's complaint through a summary

judgment motion. As previously explained, final judgment had been entered

and affirmed. The parties had then settled their dispute as to how much was


                                                                           A-3423-17T1
                                       13
owed under the judgment, and the judgment was recorded as satisfied. Thus,

the Bank had no pending claims against the Patyraks on which a court could

grant summary judgment relief. The Patyraks cannot seek summary judgment

on an issue that was resolved by the final judgment. Instead, they would have

had to seek to vacate the final judgment under Rule 4:50-1. Compare R. 4:46

(explaining a summary judgment motion allows a party to seek adjudication of

a claim when "the moving party is entitled to a judgment or order as a matter of

law") with US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466 (2012)

(explaining that Rule 4:50-1 governs a party's motion for relief from judgment

after it has been entered against them). Here the Patyraks made no showing

justifying relief under Rule 4:50-1.

      Affirmed.




                                                                        A-3423-17T1
                                       14
