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Belding & Bernhard, Inc. v. Advokat

April 16, 2007

BELDING & BERNHARD, INC., PLAINTIFF-APPELLANT,
v.
JEFFREY M. ADVOKAT, HILARY ROSENBERG, AND ADVOKAT & ROSENBERG, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No. MRS-L-3263-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Telephonically Argued February 22, 2007

Before Judges Kestin, Weissbard and Payne.

Plaintiff, Belding & Bernhard, Inc., appeals from a summary judgment dismissing its complaint against defendants Jeffrey Advokat, Esq. and Hillary Rosenberg, Esq. and their law firm, Advokat & Rosenberg. We reverse and remand.

The present suit arises out of a judgment entered on October 14, 1998, following a bench trial, in favor of plaintiff and against Thomas Capone (Thomas) and Ultracom Technologies, Inc. (Ultracom), in the amount of $41,402.59, "jointly and severally." Defendants represented Thomas and Ultracom in that trial.

On November 2, 2001, Thomas filed for bankruptcy. On October 15, 2002, plaintiff filed the present suit against Advokat, Rosenberg, the law firm, and Diane Capone (Diane), alleging, in pertinent part as follows:

6. Beginning on October 15, 1998 and thereafter, Defendants conspired with one another, and with Thomas Capone, and took affirmative steps to obstruct justice, interfere with, and attempt to destroy plaintiff's rights as a judgment creditor.

7. On October 15, 1998, and again on November 17, 1998, defendants, acting in concert with Thomas Capone, caused a deed to be drawn, executed and filed with the Clerk of Morris County transferring the legal ownership of property at 39 Oak Road, Boonton Township, New Jersey ("The Property") from the joint names of Thomas A. Capone and Diane Capone, tenants by the entirety, into the name of Diane Capone as sole owner of The Property.

8. Although subject to a mortgage, there was equity in The Property and its transfer to the name of Diane Capone was made without adequate consideration and with the intent of defrauding Plaintiff BBI and interfering with or destroying its rights as judgment creditor.

9. Thereafter, defendants took other steps to frustrate and destroy BBI's rights as a judgment creditor.

10. Subsequent to the entry of judgment, BBI caused to be served writs of execution on defendants, among others, but the defendants ignored the writs and helped to secrete property owned by the judgment debtors, Ultracom and Capone.

11. Upon information and belief, Advokat & Rosenberg acted as a front for Ultracom and Thomas Capone to obstruct and interfere with Plaintiff's rights as a Judgment Creditor (as well as other creditors) by holding property, owned by Thomas Capone and Ultracom, including personal property and monies, on its premises or in its bank accounts.

12. The aforesaid actions by defendants were done wantonly, intentionally, willfully and wrongfully frustrating and destroying, in part, BBI's rights as a judgment creditor.

13. To date, BBI, has recovered only $2,446 of the judgment, and has incurred damages and attorneys' fees and costs as a proximate result of said wrongful acts.

Plaintiff asserted the following causes of action: violation of the Uniform Fraudulent Transfer Act (UFTA), N.J.S.A. 25:2-20 to -33 (count one); violation of the Fraudulent Transfer Act (FTA), N.J.S.A. 25:2-1 to -6 (count three);*fn1 fraud (count four); unjust enrichment (count five); aiding and ...


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