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Lubertazza v. Hliboki

January 28, 2008

RAYMOND LUBERTAZZA, PLAINTIFF-APPELLANT,
v.
CHRISTOPHER W. HLIBOKI, ESQ., DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-100-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 9, 2008

Before Judges Wefing, R. B. Coleman and Lyons.

This is a legal malpractice case in which plaintiff Raymond Lubertazza alleges that defendant Christopher W. Hliboki, Esq. was careless and negligent and failed to act with reasonable care, skill, and diligence ordinarily possessed and exercised by other attorneys when he prepared a deed in June 2006 so that plaintiff's ex-wife's interest in the former marital home would be transferred to plaintiff. Plaintiff appeals from two orders, each entered on June 8, 2007. The first order denied plaintiff's application to declare plaintiff's transfer in 1995 of "his one-half interest" in the former marital home to his step-mother, Alice Lubertazza, to be free and clear of certain liens. The second order granted summary judgment to defendant and dismissed with prejudice plaintiff's claims for legal malpractice. We affirm.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On June 5, 1970, plaintiff and his ex-wife Julie Lubertazza (Julie) were married. Plaintiff and Julie purchased a home in Fairfield, New Jersey on April 3, 1972. The home was owned by them as tenants by the entirety.

In 1988, plaintiff and his father started a company known as Fairfield Paving. In addition, plaintiff and his father began a real estate development project. At a certain point in time, they encountered financial difficulties. On March 2, 1995, plaintiff transferred "his undivided one-half (1/2) interest" in the marital home to his step-mother Alice Lubertazza for a stated consideration of "$10.00 and release of other debts." On May 23, 1997, plaintiff filed for bankruptcy protection and was discharged from bankruptcy on February 9, 1998.

On June 5, 1998, plaintiff and Julie were divorced. The dual final judgment of divorce incorporated a Property Settlement Agreement (PSA) dated June 3, 1998. The PSA provided in Article VI, paragraph 1, that "Wife agrees to convey to Husband or his assigns all right, title, claim or interest she might have by equitable distribution or otherwise in and to" the marital home. The PSA provided and acknowledged that the home was subject to certain liens and that plaintiff agreed to be responsible for those obligations, as well as indemnify Julie for any claims by third-parties or entities against the property. The transfer was to "be by bargain and sale deed with covenants against grantor's acts."

On February 8, 2000, R.A. Hamilton Corporation (Hamilton) docketed a default judgment that was entered on January 24, 2000, against plaintiff and his father in the amount of $87,128.75. On August 11, 2000, the Internal Revenue Service (IRS) filed with the Register of Essex County a notice of federal tax lien in the amount of $44,194.09.

In November 2005, plaintiff met with defendant in order to review how to place the marital property in his name, as well as satisfy his creditors. In June 2006, defendant prepared a deed transferring Julie's interest in the marital home to plaintiff. Later in 2006, plaintiff resolved his debts to Hamilton and the IRS.

On January 4, 2007, plaintiff filed a complaint for legal malpractice against defendant arguing that it was negligent for defendant to have prepared a deed to transfer Julie's interest in the former marital home to plaintiff because that event caused his creditors' judgments and liens to attach to the marital home. On May 3, 2007, plaintiff filed a motion requesting that the trial court make certain legal determinations, particularly that the May 2, 1995, transfer from plaintiff to his step-mother of his interest in the marital home was valid, and that the Hamilton and the IRS liens did not attach to the property until the June 2006 deed from Julie to plaintiff was recorded. On May 25, 2007, defendant filed opposition to plaintiff's application, as well as a cross-motion for summary judgment.

Oral argument was heard on June 8, 2007. The trial court, in its oral decision, found that the March 2, 1995, transfer was not valid and, thus, the Hamilton judgment and IRS lien attached to the property before the recording of the 2006 deed from Julie to plaintiff. The court found that the property was owned by plaintiff and Julie during their marriage as tenants by the entirety and that neither party was permitted to partition the tenancy. The court further found that if defendant had acted to transfer title to plaintiff in 2006 in an attempt to avoid plaintiff's creditors attaching the property, that defendant would have been violating the Uniform Fraudulent Transfer Act (UFTA), N.J.S.A. 25:2-20 to -34. Consequently, the court denied plaintiff's application and entered summary judgment in defendant's favor. This appeal ensued.

On appeal, plaintiff presents the following arguments for ...


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