January 27, 1997
ROSA INTILI, PLAINTIFF,
ANTHONY C. DIGIORGIO, MICHAEAL DIGIORGIO, AND LINDA DIGIORGIO, DEFENDANTS.
Margolis, P.j. Ch.
The opinion of the court was delivered by: Margolis
MARGOLIS, P.J. CH.
The issue before this Court is whether the plaintiff's claims under N.J.S.A. 25:2-25 of the Uniform Fraudulent Transfer Act ("UFTA"), are time barred. *fn1
The undisputed facts are as follows: On May 14, 1990, the plaintiff, Rose Intili, filed a complaint in the Superior Court Law Division, Essex County against Anthony and Josephine DiGiorgio for money due on a note. On July 16, 1990, final judgment by default was entered because defendants failed to file a timely answer or otherwise move. On November 19, 1991, Anthony DiGiorgio conveyed his one-half interest in real property located in Paterson, New Jersey to Michael DiGiorgio for no consideration, which deed was recorded in the Passaic County Register's Office on November 26, 1991. On January 4, 1993, the Law Division vacated the default judgment against defendants and the matter proceeded to trial. On October 25, 1993, Rose Intili obtained a final judgment against Anthony and Josephine DiGiorgio, jointly and severally. Through deposition on December 21, 1993, plaintiff discovered that defendant Anthony DiGiorgio transferred his interest in the Paterson property to defendant Michael DiGiorgio in 1991. On May 1, 1996, plaintiff filed this action seeking, inter alia, to void Anthony DiGiorgio's transfer.
Defendants' move to dismiss plaintiff's complaint under R. 4:6-2(e). *fn2 Defendants that plaintiff's cause of action has been extinguished under N.J.S.A. 25:2-31. *fn3 Since plaintiff failed to assert her UFTA claim within four years of the November, 1991, transfer and had actual knowledge of the transfer during these four years, defendants reason that the plaintiff's cause of action is time barred.
In response, plaintiff urges this Court to toll and apply equitable considerations to § 31's time limitations. Plaintiff contends that her UFTA claim is not time barred because the Legislature did not intend § 31 to be a statute of repose. Rather, plaintiff asserts that the Legislature intended § 31 to be a statute of limitations, which may be tolled under the proper circumstances. Plaintiff maintains that once defendants vacated the default judgment on January 4, 1993, plaintiff's creditor status and defendants' debtor status were removed and plaintiff had no right to pursue a UFTA claim, until the final judgment was re-entered on October 25, 1993. In essence, plaintiff asserts that she did not have four years to assert her UFTA claim, because plaintiff's judgment was placed on "hold" between January 4, 1993, and October 25, 1993. By relaxing and tolling § 31's time limits with this nine and one-half month interval, plaintiff argues that her May 1, 1996 complaint was filed within four years of the November 26, 1991 transfer. *fn4
This court, therefore, must determine whether plaintiff's cause of action was timely filed as a matter of law. See R. 4:46-2. It should be noted that whether § 31's time limitation is viewed as being procedural or substantive is not a critical issue in determining whether the limitations period may be tolled in certain cases. See White v. Violent Crimes Compensation Bd., 76 N.J. 368, 379, 388 A.2d 206 (1978). Rather, this court must determine whether the "legislative purpose underlying the statutory scheme will . . . be effectuated" by allowing equitable considerations to be applied. See id.
Under fundamental principles of statutory construction, this court's "paramount judicial goal" is to ascertain the Legislature's intent, which overrides any literal reading of the statute. See Roig v. Kelsey, 135 N.J. 500, 515, 641 A.2d 248 (1994). "Statutes are to be read sensibly rather than literally and the controlling legislative intent is to be presumed as 'consonant to reason and good discretion . . . .'" Schierstead v. Brigantine, 29 N.J. 220, 230, 148 A.2d 591 (1959) (citations omitted). Further, the court must consider the "entire legislative scheme." Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129, 527 A.2d 1368 (1987). "The inquiry in the ultimate analysis is the true intention of the law; and, to this end, the particular words are to be made responsive to the essential principle of the law. It is not the words but the internal sense of the law that controls." Wollen v. Borough of Fort Lee, 27 N.J. 408, 418, 142 A.2d 881 (1958).
Recently, the Appellate Division detailed the UFTA's history and purpose. Flood v. Caro Corp., 272 N.J. Super. 398, 640 A.2d 306 (App. Div. 1994). The Flood court explained:
In 1988, New Jersey adopted the Uniform Fraudulent Transfer Act, N.J.S.A. 25:2-20 to -34, to replace the Uniform Fraudulent Conveyance Law, which had been in effect since 1919. New Jersey's version of the Act is substantially the same as the uniform statute. In the years since it was promulgated by the Commissioners on Uniform State Laws in 1984, the Act has been adopted in at least twenty-nine states.
The Act modernizes the law respecting the rights and remedies of creditors in cases of transfers of assets by debtors the design or effect of which is to prevent or impede satisfaction of claims out of the debtor's assets, or to prefer favored claimants. A prime purpose of the Act is to align state law on fraudulent transfers with the federal Bankruptcy Act, and the Uniform Commercial Code-Secured Transactions. Another goal is to make uniform the law among the states that adopt the Act.
Id. at 403-04 (citations and footnotes omitted).
Furthermore, the Flood court noted:
A creditor who is entitled to a remedy under the Act has a range of protective possibilities. If the creditor has a judgment against the debtor, application may be made in the action for a court order permitting execution on the asset transferred or its proceeds. Such an application necessitates proceedings suitable to determine the rights of the parties, including possibly innocent transferees for value, perhaps requiring a plenary trial to determine disputed material facts.
Any creditor, with or without a judgment, may prosecute a suit (1) to avoid the transfer to the extent necessary to satisfy the claim, (2) to attach or otherwise provisionally secure the asset transferred, (3)(a) to enjoin further Disposition of the asset transferred or other property, or (3)(b) to appoint a receiver.
Id. at 405; see generally Richard E. Cherin, Fraudulent Transfers Redefined Under New Act, 122 N.J.L.J. 1362 (1988) (discussing the differences between the UFCA and the newly enacted UFTA).
Additionally, the UFTA, unlike the UFCA, specifically adopts a statute of limitations. According to the New Jersey Legislature, the UFTA's statute of limitations "bars the right rather than the remedy on expiration of the statutory periods prescribed." See NEW JERSEY SENATE LABOR, INDUSTRY AND PROFESSIONS COMMITTEE STATEMENT REPORT, Assembly No. 1265, c.74 (1988). *fn5
Under N.J.S.A. 25:2-21, the UFTA defines a "creditor" as a "person who has a claim" and a "claim" as "a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured." The UFTA does not prevent a present or future "creditor" from seeking a remedy prior to judgment. See Flood, 272 N.J. Super. at 405; N.J.S.A. 25:2-29. *fn6 In other words, a defendant need not be a "debtor" *fn7 before plaintiff asserts a UFTA cause of action. See R. 4:27-2; *fn8 Deerhurst Estates Corp. v. Meadow, 70 N.J. Super. 404, 409, 175 A.2d 662 (App. Div. 1961) ("While the wisdom of the policy might be debated, we must obey the mandate of superior authority and allow the procedure. This new procedure does not mean that conveyances will be set aside as fraudulent before the creditor's claim has been reduced to judgment or other lien, but it does permit the filing of a complaint for that purpose, so that judgments subsequently obtained may have a better chance of being satisfied."). Accordingly, the UFTA expressly limits a creditor's right to set aside a transfer to the time period in the statute, notwithstanding the date a party obtains a final judgment.
Although this may seem to be a harsh interpretation, the Legislature also provided an additional, though shorter, time period. The second clause of § 31(a) provides, "or, if later, within one year after the transfer or obligation was or could reasonably have been discovered by the claimant." By providing this one year "safety" provision, the Legislature expressly contemplated situations in which a creditor had a UFTA cause of action fours years after a fraudulent transfer occurred or a fraudulent obligation was incurred.
Through a sensible reading consistent with the Legislature's intent and statutory scheme, this court would contravene the UFTA's purpose by allowing the plaintiff's cause of action to continue under the undisputed facts of this case. Although defendants successfully vacated the default judgment on January 4, 1993, the plaintiff retained "creditor" status and the right to assert a UFTA "claim" with or without a final judgment. Further, plaintiff had record notice of the alleged fraudulent transfer on November 26, 1991, and actual notice on December 21, 1993. Yet, plaintiff did not institute her UFTA cause of action until after the four year statutory period had expired. *fn9
Since the Legislature granted a defrauded creditor the right to pursue fraudulent transfers within four years from the transfer date, this court holds that the Legislature's purpose would be frustrated if N.J.S.A. 25:2-31's time limitations were relaxed. *fn10 Accordingly, plaintiff's May 1, 1996, complaint was not timely filed within four years of the transfer. For these reasons, the defendants' motion to dismiss is granted.