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Bickwit v. Hammes

Decided: March 15, 1955.

GEORGE S. BICKWIT, PAUL TOMMARCHI AND JOSEPH CASALINO, INDIVIDUALLY AND CO-PARTNERS T/A PLASTIC MOLDED ARTS CO., PLAINTIFFS,
v.
JACK G. HAMMES, ROSE HAMMES, GUARANTEE BANK & TRUST CO., A CORPORATION OF NEW JERSEY, AND COMET BUILDING IMPROVEMENT CO., A CORPORATION OF NEW JERSEY, JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS



Haneman, J.s.c.

Haneman

This is a motion by the defendant Guarantee Bank and Trust Company for a judgment on the pleadings. Plaintiffs herein filed a complaint seeking to set aside an assignment of a mortgage from one Rose Hammes to the Guarantee Bank and Trust Company on the ground that a prior assignment from Jack G. Hammes to Rose Hammes, his wife, was in fraud of creditors.

A synopsis of the facts as alleged in the complaint is as follows: On August 7, 1951 the Comet Building Improvement Company executed and delivered to Jack G. Hammes a mortgage in the amount of $10,000. In July and August of 1952 plaintiffs sold merchandise to said Jack G. Hammes. On October 21, 1952 the said Jack G. Hammes assigned his interest in the above referred to mortgage to his wife, Rose Hammes, which assignment was duly recorded. On June 1,

1953 plaintiffs instituted suit against Jack G. Hammes for the amount allegedly then due to them for goods sold and delivered. On February 23, 1954 defendant Rose Hammes assigned the above referred to mortgage to the Guarantee Bank and Trust Company of Atlantic City, New Jersey, which assignment was recorded on March 2, 1954.

Plaintiffs allege that at the time of the assignment from Jack G. Hammes to his wife Rose Hammes he was insolvent and that a fair consideration was not paid therefor. Plaintiffs further allege that at the time of the assignment Rose Hammes had full knowledge of the lack of consideration and of the insolvency, and of the intention of Jack G. Hammes to thereby defraud his creditors.

Insofar as the defendant Guarantee Bank and Trust Company is concerned, the allegations of the complaint are as follows:

"The said assignment was in furtherance of the plan or scheme of the defendants, Jack Hammes and Rose Hammes, to delay, hinder and defraud the creditors of Jack Hammes, and the defendant, Guarantee Bank & Trust Co., had actual and full knowledge of the facts and circumstances surrounding the financial condition of defendant Jack Hammes, and had actual and full knowledge of the fact that plaintiffs were in the process of obtaining a judgment against defendant Jack Hammes."

"The assignments and conveyances aforesaid were all fraudulent and made with the deliberate intent to delay, defraud and hinder the creditors of the defendant, Jack G. Hammes, of whom plaintiffs are one."

The Guarantee Bank and Trust Company has filed an affidavit herein, setting forth the fact that the mortgage was purchased in the ordinary course of business by it upon the payment of $10,000. Said affidavit, in addition, contains the following paragraph:

"The Guarantee Bank and Trust Company purchased said mortgage in the usual course of business, in good faith, and for full value, without notice or knowledge of any alleged infirmity in said indenture, or any assignments thereof, and without knowledge of the facts alleged in said complaint pertaining to transactions between Jack G. Hammes and Rose Hammes. Said Bank was without notice or knowledge of the alleged insolvency of Jack G. Hammes, or any lack

of consideration for the assignment of said mortgage from Jack G. Hammes to Rose Hammes, or the other allegations made by plaintiff in said complaint. In purchasing said mortgage the Bank relied upon the representations of the said Rose Hammes as to ownership of said mortgage, the title records in the office of the Clerk of Atlantic County, ...


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