AMERICAN EXPRESS CENTURION BANK VS. SALVATORE MASTROPOLE(L-0440-14, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-0699-15T4
AMERICAN EXPRESS
CENTURION BANK,
Plaintiff-Respondent,
v.
SALVATORE MASTROPOLE,
Defendant-Appellant.
___________________________________________
Argued April 25, 2017 – Decided July 3, 2017
Before Judges Suter and Grall.
On appeal from the Superior Court of New
Jersey, Law Division, Passaic County, Docket
No. L-0440-14.
Richard H. Kotkin argued the cause for
appellant.
Respondent American Express Centurion Bank
has not filed a brief.
PER CURIAM
Plaintiff American Express Centurion Bank filed a complaint
alleging defendant Salvatore Mastropole breached a credit card
agreement to pay the minimum amount due as indicated on his
monthly statements (count one), seeking payment due on the
account (count two), and alleging unjust enrichment based on
defendant's receipt of the benefits charged on the card without
tendering payment (count three). The parties settled the case
and filed an amended stipulation of settlement with the court on
May 6, 2014. On July 10, 2015, defendant moved to vacate the
settlement agreement, and he now appeals from a July 25, 2015
order, denying his motion to vacate. Plaintiff did not file a
timely answering brief, and on its own motion, this court
suppressed the brief. For the reasons that follow, we affirm.
Defendant was not represented by counsel at the time of the
settlement. He was, however, represented by counsel on the
motion to vacate, and he is represented by the same attorney on
appeal. In support of his motion to vacate the settlement,
defendant submitted a certification asserting that he "agreed to
settle" the initial litigation with the understanding that he
"would make certain monthly payments, towards the outstanding
balance" and "would get back [his] credit privileges and . . .
could continue to charge on the Account." Although his credit
was not restored, he continued to make monthly payments. By
plaintiff's account, he made ten monthly payments under their
agreement before stopping payments and consulting an attorney,
who, according to defendant, told him the agreement did not
reflect his understanding.
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There is no question that the four page, seven paragraph
stipulation of settlement defendant signed does not reflect
those terms. Instead, it includes the following:
Except for the terms and conditions contained
herein Defendant[s] acknowledges and
represents that he possess no claims, demands,
defenses, counterclaims, or causes of action
whatsoever against [plaintiff], its officers,
directors, employees, agents, attorneys,
heirs and assigns pertaining to [his account
number], which are not being resolved pursuant
to the Agreement. Defendant[s] forever waives
and relinquishes any and all such claims,
whether known or unknown, and further
covenants and agrees that he shall not
institute any suit, proceedings or action at
law, equity arbitration, or otherwise against
[plaintiff], or in any way aid in the
institution or prosecution of any claim,
demand, or cause of action against American
Express arising directly or indirectly out of
or in connection with [his account number].
Defendant does not point to a single passage in the
document he signed to settle plaintiff's suit that he could have
read as a promise to restore his credit. Nevertheless, he
signed it.
"Public policy favors the settlement of disputes."
Willingboro Mall, Ltd. v. 240/242 Franklin Ave., L.L.C., 215
N.J. 242, 253 (2013). "An agreement to settle a lawsuit is a
contract which, like all contracts, may be freely entered into
and which a court, absent a demonstration of 'fraud or other
compelling circumstances,' should honor and enforce as it does
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other contracts." Pascarella v. Bruck, 190 N.J. Super. 118, 124
(App. Div.) (quoting Honeywell v. Bubb, 130 N.J. Super. 130, 136
(App. Div. 1974), certif. denied, 94 N.J. 600 (1983)); accord
Zuccarelli v. N.J. Dept. of Envtl. Prot., 326 N.J. Super. 372,
380 (App. Div. 1999), certif. denied and appeal dismissed, 163
N.J. 394 (2000). "Before vacating a settlement agreement, our
courts require clear and convincing proof that the agreement
should be vacated." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990)
(internal quotation marks omitted). "A party is bound to the
contract it made at the time, even if it turns out to be a poor
deal." New Jersey Mfrs. v. O'Connell, 300 N.J. Super. 1, 7
(App. Div.), certif. denied, 151 N.J. 75 (1997).
Given defendant's signing of the agreement unambiguously
omitting any promise concerning restoration of credit, and his
tender of ten monthly payments in conformity with the
stipulation, defendant's unsupported assertion that plaintiff
fraudulently omitted a promise material to his agreement is
simply not enough to warrant an order vacating the settlement.
Judge Brogan properly denied the motion.
Affirmed.
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