GLENDAUNGER v. ASHER HANDLER, 202 MAIN STREET HOLDINGS, LLC, 202 MAIN STREET EQUITIES, LLC and NAFTALY EISEN and BARRY GOLDBRENNER, GOLDEYE LLC, BNN FUNDING, LLC, and MSZG FUNDING, LLC
Annotate this CaseNOT 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-1331-16T3
GLENDA UNGER,
Plaintiff-Appellant,
v.
ASHER HANDLER, 202 MAIN
STREET HOLDINGS, LLC, 202
MAIN STREET EQUITIES, LLC,
and NAFTALY EISEN,
Defendants-Respondents,
and
BARRY GOLDBRENNER, GOLDEYE,
LLC, BNN FUNDING, LLC, and
MSZG FUNDING, LLC,
Defendants.
_____________________________
Argued November 30, 2017 – Decided February 16, 2018
Before Judges Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Chancery Division, General Equity, Ocean
County, Docket No. C-000087-15.
Jared J. Monaco argued the cause for appellant
(Gilmore & Monahan, PA, attorneys; Thomas E.
Monahan, of counsel and on the brief; Jared
J. Monaco, on the brief).
David C. Steinmetz argued the cause for
respondents Asher Handler and 202 Main Street
Holdings, LLC (Steinmetz, LLC, attorneys;
David C. Steinmetz, of counsel and on the
brief; Levi M. Rand, on the brief).
Allen Weiss argued the cause for respondents
202 Main Street Equities, LLC and Naftaly
Eisen.
PER CURIAM
Plaintiff, Glenda Unger, filed a complaint against
defendants, Asher Handler and 202 Main Street Holdings, LLC
(Holdings), claiming they wrongfully deprived her of title to
certain real property that Holdings conveyed to defendant 202 Main
Street Equities (Equities). According to plaintiff, Equities,
which was controlled by defendant Naftaly Eisen, was aware that
plaintiff maintained an ownership interest in the property when
it took title. Plaintiff appeals from the Chancery Division's
December 13, 2016 order denying her motion for reconsideration of
the court's September 2, 2016 order dismissing her claims against
defendants with prejudice.1 The gist of plaintiff's argument on
1
Plaintiff's notice of appeal incorrectly identifies the order
as being dated December 2, 2016, the date oral argument was
considered by the motion judge. Despite the fact that this is the
only order identified in the notice of appeal, the legal arguments
raised in plaintiff's brief do not address the denial of
reconsideration. Under these circumstances, we deem any challenge
2 A-1331-16T3
appeal is that the motion judge gave too much weight to a release
plaintiff signed in which she waived any claims relating to the
property. According to plaintiff, the judge failed to take into
consideration a document Handler signed before plaintiff signed
the release in which he acknowledged plaintiff as the owner of the
property. She also challenges the motion judge's conclusion that
Equities was a bona fide purchaser for value. We find no merit
to these arguments and affirm.
The facts set forth in the record, viewed in the light most
favorable to plaintiff, Angland v. Mountain Creek Resort, Inc.,
213 N.J. 573, 577 (2013), are summarized as follows. In 2014,
Gittel Investments, LLC (GI) was the record owner of commercial
rental property located on Main Street in Lakewood Township.
Plaintiff, an experienced real estate investor, was the sole member
of GI and very familiar with real estate transactions and related
legal documents, including the effect of deeds and releases.
to the denial of that motion waived. N.J. Dep't of Envtl. Prot.
v. Alloway Twp.,
438 N.J. Super. 501, 505 n.2 (App. Div. 2015).
However, we chose to consider plaintiff's appeal as also being
from the court's September 2, 2016 order that granted Handler and
Holdings' motion to dismiss under Rule 4:6-2(e) and Eisen and
Equities' motion for summary judgement under Rule 4:46-2.
Plaintiff's appellate case information statement identifies the
order, and all of the parties have fully briefed and argued the
issue. See N. Jersey Neurosurgical Assocs., P.A. v. Clarendon
Nat'l Ins. Co.,
401 N.J. Super. 186, 196 (App. Div. 2008).
3 A-1331-16T3
Title to the property was encumbered by a mortgage in favor
of Eastern Savings Bank (ESB), given by GI to secure a loan of
$350,000, which plaintiff personally guaranteed. By 2014, GI had
defaulted years earlier in its obligation to make monthly payments
to ESB, the bank already obtained a judgment of foreclosure, the
court had issued a writ of execution and the property was about
to be sold at a sheriff's sale. The total owed to ESB at that
time was $779,739.55 consisting of $343,434.05 in principal and
the balance in interest and fees.
In order to prevent the sale of the property and her
individual liability for the balance of the loan, plaintiff
negotiated with ESB a $512,240 payoff. In an effort to secure the
funds to pay ESB, plaintiff contacted Handler to discuss a loan
at a lower interest rate. According to plaintiff, Handler
represented that the only way he could secure the funds to pay ESB
was if she conveyed the property to Holdings, an entity that he
controlled.
This proposed arrangement was not new to plaintiff. Plaintiff
had been involved with Handler in an earlier, similar transaction.
In that matter, plaintiff conveyed title of property located on
South Clifton Avenue in Lakewood that one of her companies owned
to an entity controlled by Handler so that he could secure a new
loan to refinance plaintiff's existing mortgage loan. After the
4 A-1331-16T3
new loan was secured, plaintiff negotiated a sixty-two percent
ownership interest in the entity that held title to the property.2
According to Handler, plaintiff received her interest in the entity
"out of the goodness of [his] heart." With that prior experience
in mind, plaintiff agreed to have GI convey title to the Main
Street property to Holdings.
On the day plaintiff was to attend the closing with Handler's
attorney, she first met privately with Handler earlier in the day.
At that time, Handler signed a one-paragraph statement at
plaintiff's request. The document stated that he "agree[d] and
recognize[d the property,] which is deeded to [him] . . . belongs
to and is the property of [plaintiff]. . . . [Plaintiff] is the
sole owner of the . . . property and [he is] aware that all
benefits and obligations are those of [plaintiff]." According to
plaintiff's complaint, Handler signed the document and agreed to
provide the funds to pay off ESB in consideration for "a
proprietary interest in said property at a later time when the
property value appreciated."3 The document was dated March 10,
2
The parties have not been provided us with any documents relating
to the South Clifton Avenue transaction.
3
This allegation was inconsistent with plaintiff's deposition
testimony in which she stated that the consideration for the loan
from Handler was to be a "bigger part" of one of her business
ventures. Plaintiff explained "there is a Franklin Street
5 A-1331-16T3
2014 and never recorded. Handler denied this arrangement and
testified that he signed the document without first reading it.
Later on the same date, plaintiff executed a deed on behalf
of GI conveying title to the property to Holdings in consideration
of its payment to ESB of $512,240 that day.4 She also signed an
affidavit of title that confirmed, other than GI as seller and
Holdings as purchaser, no other person or entity had any interest
in the property. Holdings recorded the deed from GI on April 14,
2014.
Holdings acquired the closing funds through a loan from BNN
Funding LLC (BNN). BNN's principle, Barry Goldbrenner, controlled
Goldeye LLC, which was a member of Holdings.5 Holdings executed
a note and mortgage in favor of BNN on the same date that plaintiff
conveyed title to Holdings. BNN recorded the mortgage on April
14, 2014.
Before closing, Handler's attorney, at Handler's request,
required plaintiff to sign a release in order to render the
development [Handler] wanted to be a part of. . . . By helping
in [the Main Street] venue bringing [her] mortgage rate down and
everything, it would enable [them] to go further and develop the
sub development together, that's what he wanted."
4
Plaintiff signed the closing statement that indicated Holdings
paid from its own funds an additional $57,760 in closing fees,
including $39,900 into an escrow with BNN.
5
According to Eisen, he introduced Goldbrenner to Handler.
6 A-1331-16T3
previous document that Handler signed, which named plaintiff the
sole owner of the property, "null and void." According to Handler,
he would not go through with the transaction unless plaintiff
signed the release. The release identified GI as the "Seller,"
plaintiff as "the sole and managing member of Seller," Holdings
as the "Buyer," and BNN as the "Lender." It did not mention
Handler.
The release stated that "Buyer" was purchasing the property
from "Seller" and that plaintiff "agreed to release the Buyer and
the Lender from any and all obligations they may now or hereafter
have with respect to the Seller and/or the Property[.]" In the
release, plaintiff also agreed to "release and forever discharge
the Buyer and the Lender with respect to any and all 'Claims[6]' of
or concerning the Property." Plaintiff understood that the closing
would not occur if she refused to sign that document, and she does
not dispute signing it. However, according to plaintiff, she she
did not read the document before signing it.
6
In pertinent part, the release defined "claims" as "claims,
actions, suits, . . . disputes and controversies of every nature
and description in law or in equity, . . . whether asserted
directly or in any representative capacity whatsoever, and whether
discovered or accrued at any time." Ibid.
7 A-1331-16T3
After the closing, and despite the execution and recording
of the deed, plaintiff continued to collect rents from the tenants
at the property.7 The tenants stopped making payments to her in
September 2014, after they received notice that plaintiff no longer
owned the property.
On February 11, 2015, Holdings sold the property to Equities
for $800,000 after Goldeye LLC became the managing member of
Holdings. At the time of the sale, Holdings was in default of its
obligation to make payments to BNN. The deed from Holdings to
Equities was recorded on February 19, 2015. Subsequently, BNN
subordinated its first mortgage to a new mortgage given by Equities
to defendant MSZG Funding, LLC to secure a new loan in the
principal amount of $550,000.
Plaintiff never had any conversations with Eisen about the
property, and Eisen never saw the document signed by Handler
regarding plaintiff's alleged ownership interest in the property.
However, according to plaintiff, she was aware that Eisen spoke
with Abraham Chaim Bursztyn, an individual who attempted to
intervene with Handler on plaintiff's behalf, and who informed
7
According to plaintiff, she also continued to pay the real
estate taxes and insurance associated with the property.
Defendants contest this allegation and we discern no proof of that
fact in the record, other than her unsupported statement.
8 A-1331-16T3
Eisen that she maintained an interest in the property. Bursztyn
became involved in the parties' dispute in September 2014 when
plaintiff asked him to contact Handler about the tenants at the
property not paying rents to her. According to Bursztyn, Handler
told him that Goldbrenner was collecting the rents as required by
the loan agreement between BNN and Holdings, even though plaintiff
still owned the property. Handler also explained to him how the
closing sales proceeds from plaintiff's sale to Holdings were used
to pay the first six months of mortgage payments owed to BNN.
Later in September, Handler invited Bursztyn to a meeting with him
and Eisen. When they met, Bursztyn inquired how much money was
needed to either pay off the BNN loan or to bring it current. At
that meeting and subsequent ones that he attended, all without
plaintiff, Bursztyn referred to plaintiff as the property's owner
and neither Handler nor Eisen disputed that reference.
Plaintiff filed her complaint and recorded a lis pendens in
April 2015. She amended her complaint twice and defendants filed
their answers. In her complaint, plaintiff asserted claims for
breach of contract, conversion, fraud, misrepresentation, civil
conspiracy and other related claims. Her complaint did not mention
the release she signed prior to closing or allege that plaintiff
did not intend to have GI transfer title to the property, but
rather it stated plaintiff did so with the intention that "she
9 A-1331-16T3
would . . . retain control and ownership of the property and [the
understanding that] transfer to . . . Holdings was [not] for any
purpose other than being a necessary step in securing a new
mortgage as promised by Handler." It also alleged that the
consideration for the loan from Handler was his one day receiving
a portion of the anticipated appreciation in the property's value.
Eisen and Equities filed their motion for summary judgment
in July 2016 and Handler and Holdings filed their motion to dismiss
in August 2016. Plaintiff opposed the motion to dismiss with a
letter arguing that the court should not consider it because
Handler and Holdings filed an answer to her complaint and the
motion also "relie[d] upon facts outside of the pleadings[.]". In
opposition to the summary judgment motion, plaintiff submitted
Eisen's deposition transcript and a certification from Bursztyn.
On September 2, 2016, Judge Francis R. Hodgson, Jr. considered
counsels' oral arguments on the motions8 before granting both
motions and placing his reasons on the record that day. Turning
first to Eisen and Equities' motion for summary judgment, the
judge found no issue as to any material fact. The judge rejected
plaintiff's contentions that Eisen's conversations with Bursztyn
8
There was a third motion before the court that day as well.
Defendant MSZG also filed a motion to dismiss under Rule 4:6-2(e).
The judge granted that motion, but that order is not the subject
of this appeal.
10 A-1331-16T3
negated the closing documents that were silent about any ownership
being held by plaintiff in the property after GI conveyed its
interest to Holdings. Judge Hodgson found that because there were
no recorded documents indicating that plaintiff held any interest
in the property or in Holdings, her reliance on Bursztyn's
conversations or the one-page document signed by Handler did not
establish that Eisen knew plaintiff was an owner of the property
as she alleged. As a result, Equities was a bona fide purchaser
for value without notice of plaintiff's alleged interest, and was
therefore entitled to the dismissal of plaintiff's claims.
Turning to Handler and Holdings' motion, Judge Hodgson began
by rejecting plaintiff's contention that the motion could not be
decided because defendants filed an answer and they relied on
information outside of the pleadings, which required movants to
file a motion for summary judgment. He explained that he "must
convert [the m]otion to one for summary judgment[,]" and proceeded
to conduct a summary judgment analysis. Applying that standard,
the judge found, again, there were no issues as to any material
facts. He concluded that absent any "agreement between the parties
or an amendment to the ownership interest of [Holdings,]
particularly in light of the release[,]" there was no indicia of
plaintiff continuing to own the property after the closing with
Holdings. He observed that plaintiff was a sophisticated real
11 A-1331-16T3
estate investor and knew the effect of the release she signed.
The judge stated:
I started the oral argument with the
question . . . what remains of the purported
contract signed by Handler and [plaintiff]
after the release [was signed?] Nothing
remains the [c]ourt finds. There's no way
that anyone could find that after . . . that
release was signed, which the [p]laintiff
recognized that had she not signed it there
would be no closing, that once she signs that
there is anything remaining of the
[c]omplaint.
On September 20, 2016, plaintiff filed for reconsideration.
In support of her motion, plaintiff filed her attorney's
certification that attached copies of text messages allegedly
between her and Handler, copies of the closing documents, including
the one-page statement signed by Handler before the closing,
Handler's deposition transcript and a copy of the Bursztyn
certification she filed in opposition to Eisen and Equities'
earlier motion. The judge considered oral argument and denied the
motion on December 2, 2016. In his oral decision, the judge cited
to the controlling case law and concluded plaintiff did not present
any new information or arguments that required him to reconsider
his earlier decision.
Plaintiff filed her appeal on December 2, 2016, prior to the
entry of the order denying reconsideration, which occurred on
December 13, 2016.
12 A-1331-16T3
"We engage in de novo review of the trial court's decision
on the summary judgment motion and the motion to dismiss . . .
because the court considered documents outside the pleadings in
deciding the latter motion, . . . treat[ing it] as a summary
judgment motion." Giannakopoulos v. Mid State Mall,
438 N.J.
Super. 595, 599-600 (App. Div. 2014) (citations omitted); see also
Conley v. Guerrero,
228 N.J. 339, 346 (2017). Thus, we examine
the competent evidential materials submitted by the parties to
identify whether there are genuine issues of material fact and,
if not, whether the moving party is entitled to summary judgment
as a matter of law. Ibid. "Summary judgment should be denied
unless" the moving party's right to judgment is so clear that
there is "no room for controversy." Akhtar v. JDN Props. at
Florham Park, LLC,
439 N.J. Super. 391, 399 (App. Div. 2015)
(quoting Saldana v. DiMedio,
275 N.J. Super. 488, 495 (App. Div.
1994)).
On appeal, plaintiff argues that had the judge considered
parol evidence and not just relied upon plaintiff's signing of the
release, he would have been constrained to find an issue of
material fact as to the parties' intentions and denied Handler and
Holdings' motion. According to plaintiff, parol evidence, "would
[establish] that the closing documents alone were not the fully
integrated agreement." In support of her argument, plaintiff
13 A-1331-16T3
relies upon her prior dealings with Handler, the document signed
by Handler before the closing and plaintiff's execution of the
release, her allegations that she paid the taxes and insurance on
the property as well as collected rents after the closing, and
Bursztyn's account of his conversations with Handler and Eisen.
Whether the court should have considered parol evidence
depends upon whether there was any ambiguity in the scope or terms
of the release. Schor v. FMS Fin. Corp.,
357 N.J. Super. 185,
191-92 (App. Div. 2002) ("A party that uses unambiguous terms in
a contract cannot be relieved from the language simply because it
had a secret, unexpressed intent that the language should have an
interpretation contrary to the words' plain meaning." Id. at
191).
The scope of a release is determined by the
intention of the parties as expressed in the
terms of the particular instrument, considered
in the light of all the facts and
circumstances. A general release, not
restricted by its terms to particular claims
or demands, ordinarily covers all claims and
demands due at the time of its execution and
within the contemplation of the parties.
[Bilotti v. Accurate Forming Corp.,
39 N.J.
184, 203-04 (1963) (citations omitted).]
Moreover, when a release's language refers to "any and all claims,"
as here, courts generally do not permit exceptions. Isetts v.
Borough of Roseland,
364 N.J. Super. 247, 255-56 (App. Div. 2003).
14 A-1331-16T3
Parol evidence "may only be admitted if the language of the
writing is unclear [so that] '[a]ntecedent and surrounding factors
that throw light upon . . . [the meaning of the contract] may be
proved by any kind of relevant evidence'" to establish the parties'
intentions. Chance v. McCann,
405 N.J. Super. 547, 563-64 (App.
Div. 2009) (second alteration in original) (quoting Conway v. 287
Corp. Ctr. Assocs.,
187 N.J. 259, 268-69 (2006)). It cannot be
used, however, to alter the express provisions of the agreement.
Because "[s]uch evidence is adducible only for the purpose of
interpreting the writing--not for the purpose of modifying or
enlarging or curtailing its terms, but to aid in determining the
meaning of what has been said[,]" it cannot be used "to interpret
it." Id. at 564 (quoting Atlantic N. Airlines, Inc. v. Schwimmer,
12 N.J. 293, 301-02 (1953)). Where "there is no ambiguity in the
agreement as written with respect to [an] issue, there is no need
for parol or extrinsic evidence[.]" Ibid.
Applying these principles, we agree with Judge Hodgson that
the release barred plaintiff from bringing any claim against
Holdings and Handler relating to the property. This was a
commercial transaction between sophisticated business people who
understood real estate transactions, loan documents and similar
agreements. There was no ambiguity in any of the language used
by the parties, see e.g., Potomac Ins. Co. of Ill. ex rel.
15 A-1331-16T3
OneBeacon Ins. Co. v. Pa. Mfrs. Ass'n Ins. Co.,
425 N.J. Super.
305, 324-25 (App. Div. 2012), that required parol evidence to
ascertain the parties' intentions as they were clear from the face
of the document. Regardless of the import of the document that
Handler signed earlier on the closing day about plaintiff owning
the property or it being deeded to Handler – neither of which were
factually correct – plaintiff agreed at closing to give up any
claim against Holdings and its agent Handler when she executed the
release. Notably, there was no allegation by plaintiff in her
complaint that she signed it without knowledge of its import or
under duress. In fact, plaintiff's complaint did not mention the
document. If plaintiff did not want to release Holdings and
Handler, she could have simply walked away and sought funding
elsewhere.
Assuming plaintiff believed that this transaction, like the
South Clifton Avenue deal, would have resulted in ESB's loan being
satisfied and plaintiff being relieved of her personal obligation
for any excess, while she maintained an ownership interest in the
property, she never negotiated and secured an interest in Holdings
as she did with the South Clifton Avenue entity, nor was there any
valid agreement with Handler that she would maintain any interest
in the Main Street property after closing. Even if there had
16 A-1331-16T3
been, it would have been extinguished by plaintiff signing the
release and executing the deed without reservation.
Moreover, under plaintiff's version of her unwritten
agreement with Handler, he was to have Holdings advance in excess
of one-half million dollars in exchange for a hope that he would
someday share in the property's predicted appreciation in value
or, as she repeatedly testified at her deposition, in exchange for
a "bigger part" of the Franklin Street development venture. These
suggested arrangements are not only inconsistent with one another,
but also strain credulity and are unsupported by the record. We
find no error in Judge Hodgson's grant of summary judgment in
favor of Handler and Holdings under these circumstances.
As to the dismissal of her complaint against Eisen and
Equities, plaintiff contends that she established through her
opposition to their motion that Eisen had "actual []or constructive
knowledge that [plaintiff] claimed ownership in the subject
property[.]" Here, plaintiff relies upon Bursztyn's conversations
with Eisen months after the closings as proof of Eisen's knowledge
of plaintiff's "claim of disputed ownership," as well as Eisen's
role in introducing Goldbrenner to Handler.
We find plaintiff's arguments as to Eisen and Equities to be
without any merit. There was no evidence offered by plaintiff
17 A-1331-16T3
that established Equities, through Eisen, took title subject to
plaintiff's alleged interest in the property.
As we have previously explained:
A purchaser . . . for value without notice,
actual or constructive, acquires a title . . .
free from all latent equities existing in
favor of third persons. Constructive notice
may be brought home to a [purchaser] by known
circumstances. If a purchaser . . . is faced
with extraordinary, suspicious, and unusual
facts which should prompt an inquiry, it is
equivalent to notice of the fact in question.
[Howard v. Diolosa,
241 N.J. Super. 222, 232
(App. Div. 1990) (citations omitted).]
In Howard, we determined that the facts shown to be known by
a lender "all but screamed [a borrower's purchase's] irregularity
and unenforceability." Id. at 234. We found those facts were
sufficient to establish that the lender was not without notice and
therefore we affirmed the cancellation of its note.
9 Id. at 232-
34. The same type of facts do not exist here.
Suffice it to say, here, there was absolutely no evidence of
any recorded documents or unrecorded documents in recordable form
9
In Howard, a lender was aware that its borrower paid
significantly less than the amount stated in the deed when it
loaned funds in excess of the purchase price.
241 N.J. Super. at 233. Under those circumstances, we affirmed the cancellation of
the lender's note, id. at 235, commenting that the picture
presented to the lender was a troubling one that "should have
alerted a potential mortgagee with knowledge of the terms described
by [the borrower] to the likelihood that [his] purchase was
irregular and voidable." Id. at 234.
18 A-1331-16T3
that evinced any ownership interest by plaintiff supporting her
claim that Equities took title with knowledge that plaintiff had
an interest on the property or Holdings. See
N.J.S.A. 46:26A-12.
There were no conversations between Eisen and plaintiff in which
her claim to an alleged interest or even the property was ever
discussed. Bursztyn's conversations with Eisen did not convey any
information that established any irregularity in Holdings' title
to the property that warranted the cancellation of Equities' title
to the property. Without such proof, summary judgment was
warranted in favor of Eisen and Equities.
Affirmed.
19 A-1331-16T3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
