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... 'v MAURIce H. PRESSlER (1930-2002)
SHaDON H. PRESSlER
GERARD J. faT
STEVEN P. McCABE LAWRENce J. McDERMOTT. JR.
MITCHELL L WILLIAMSON (NJ & NY) FRANCIS X. GRIMES (NJ & PA)
DARRENH. TANAKA(NJ & NY)
JOANNE L D'AURIZIO (DC.Ft. NJ & NY)
MITCHELL E. ZIPKIN (NJ & NY) CRAIG S. STILLER (NY ONLy) RALPH GULKO (NJ.NY & PA)
February 1, 2013
PRESSLER AND PRESSLER,LLP COUNSELLORS AT LAW
7 Entin Rd. Parsippany, NJ 07054·5020
Off: (973) 753·5100 Fax: (973) 753.5353
NY Office: PA Office 305 Broadway, 9111 Floor 804 West Avenue
New York, NY 10007 Jenkintown, PA 19046 Office: (516)222-7929 Office (215)576·1900 Fax: (973)753-5353 Fax: (215) 576-7299
E-MAIL: [email protected] Please Reply To:
[X] New Jersey Office [ ] New York Office [ ] Pennsylvania Office
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION CLERK'S OFFICE ATIN: BARBARA DARTAGNO, TEAM 4 RICHARD J HUGHES JUSTICE COMPLEX PO BOX 006, 2S W MARKET ST., SN TRENTON, NJ 08625-0006
DANIa B. SULLIVAN (NJ & PA)
DALELGaBER GINA M. LO BUE (NJ & NY)
EDWARD STOCK (PA ONLY)
NICHOLAS J. MADONIA CHRISTOPHER P. ODOGBIU
OFFIce HOURS:
DARYL J. KIPNIS
MlCHAB. J. PETERS (NJ & NY)
RlTAE.AYOUB
THOMAS M. BROGAN STEVEN A. LANG
Monday-ThUlSday: 8an-9pm Friday: 8am-7pm Satutday: 9am-2pm
Re: NEW CENTURY FINANCIAL SERVICES, INC. vs AHLAM OUGHLA Superior Court of New Jersey: Appellate Division Appellate Docket No.: A-006078-11 T4 P&P File Number 048924
Dear Sir or Madame:
Enclosed please find original and four copies of Plaintiff/Respondent's Brief and Appendix in the abovereferenced matter. Also enclosed please find Proof of Mailing of two copies of same upon Counsel for Defendant! Appellant.
Thank you for your courtesies in this matter.
Respectfully submitted,
Enclosures
cc: PHILIP D STERN ESQ. PHILIP D. STERN & ASSOCIATES 697 V ALLEY STREET, SUITE 2-D MAPLEWOOD, NJ 07040
PRESSLER AND PRESSLER, LLP COUNSELLORS AT LAW
7 Entin Rd. Parsippany, NJ 07054-5020
(973) 753-5100
Attorney for Plaintiff
NEW CENTURY FINANCIAL SERVICES, INC.
PlaintifflRespondent vs.
AHLAM OUGHLA
Defendant! Appellant
P&P File Number 048924
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-006078-IIT4
Civil Action PROOF OF MAILING
On February 1, 2013, I, the undersigned, a secretary employed by Pressler and Pressler,
L.L.P., Attorneys for the PlaintifflRespondent in the above entitled action, did serve two (2)
copies of the Respondent's Brief and Appendix on Counsel for the Defendant-Appellant,
PHILIP D STERN ESQ PHILIP D. STERN & ASSOCIATES 697 VALLEY STREET, SUITE 2-D MAPLEWOOD, NJ 07040
being the last mown address, by regular mail with postage prepaid thereon, by depositing in a
United States Post Office mailbox at Parsippany, New Jersey.
I certify that the foregoing statements made by me are true. I am aware that if any of the
foregoing statements made by me are willfully false, I am subject to punishment.
Dated: February 1,2013
~ I
NEW CENTURY FI NANCIAL SERVICES , INC .
Pla i ntif f - Responden t
vs
AHLAM OUGHLA
Defendant - Appellant
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO . A- 006078 - 11
ON APPEAL FROM Order of the Superior Court Of New Jersey , Law Division HUDSON Specia l Civil Part DC-4244 - 12
SAT BELOW : Hon . Martha T . Royster , J . S . C.
BR I EF AND APPENDIX FOR PLAINTIFF- RESPONDENT NEW CENTURY FI NANCIAL SERVICES , INC .
P&P File No : 048924
On the Brief :
Lawrence J . McDermott , Jr .
Pressler and Pressler , L . L . P . 7 Entin Road Parsippany , NJ 07054 - 5020 Office : (973) 753 - 5100 Fax : (973)753 - 5353
email : lmcdermott@pressler - pressler . com
Steven A. Lang email : slang@pressler-press1er . com
! ;:
TABLE OF CONTENTS
1. Preliminary Statement -------------------------------- 1
2. Statement of Facts ----------------------------------- 3
3. Procedural History ----------------------------------- 5
4. Legal Arguments
STANDARDS OF REVIEW -------------------------------- 10
a. On Appeal -------~-------------------------- 10
b. Summary Judgment --------------------------- 11
POINT I - NEW JERSEY'S DECISIONAL LAW DEFINES WHAT PROOFS CONSTITUTE COMPETENT EVIDENCE TO ESTABLISH OWNERSHIP OF PERSONALTY. ------------- 17
A. PLAINTIFF HAS STANDING AS THE REAL PARTY IN INTEREST. ------------------------------ 18
B. ASSIGNMENT OF A CHOSE-IN-ACTION IS DIFFERENT FROM THE TRANSFER OF OTHER TYPES OF PROPERTY .. ------------------------ 21
C. ELEMENTS NECESSARY TO PROVE THE ASSIGNMENT OF A CHOSE-IN-ACTION. ---------- 22
D. TITLE 9 OF THE UNIFORM COMMERCIAL CODE IS IRRELEVANT TO ANY ISSUE HEREIN IN THAT NO SECURITY INTERESTS ARE INVOLVED. ------- 33
E. NCFSI HAS PROVIDED PRIMA FACIE PROOF OF ITS OWNERSHIP VIA ASSIGNMENT. ------------- 35
POINT. II - PLAINTIFF'S PROOFS SATISFIED THE REQUIREMENTS OF COLVELL AND OTHERWISE ESTABLISHED DEFENDANT'S OBLIGATION TO PLAINTIFF, AS ASSIGNEE. -------------------------------------- 37
i
POINT III - IN THE INSTANT SMALL CLAIMS ACTION, PLAINTIFF'S PROOFS WERE ADMISSIBLE AND AMPLY BORE ITS BURDEN TO SUPPORT ITS MOTION FOR SUMMARY JUDGMENT AND/OR OPPOSE DEFENDANT'S RECONSIDERATION MOTION. ---------------- 48
A. DESPITE HAVING MOVED THE MOTION COURT FOR RECONSIDERATION, THE DEFENDANT RAISES FOR THE FIRST TIME ON APPEAL ITS FAILURE TO MAKE SPECIFIC FINDINGS OF FACT AND/OR EVIDENTIARY RULINGS. ----------------- 49
B. IN MATTERS COGNIZABLE IN THE SMALL CLAIMS SECTION OF THE SPECIAL CIVIL PART, THE EXCLUSIONARY RULES DO NOT APPLY. ----------------- 50
C. PLAINTIFF'S SUMMARY JUDGMENT SUBMISSIONS WERE ADMISSIBLE AND ESTABLISH ITS PRI~ FACIE RIGHT TO THE ENTRY OF SUMMARY JUDGMENT IN ITS FAVOR. 51
D. THE MATERIALS SUBMITTED BY PLAINTIFF IN CONNECTION WITH DEFENDANT'S RECONSIDERATION MOTION WERE ADMISSIBLE AND PROPERLY CONSIDERED BY THE MOTION JUDGE. ------------------------------------------- 53
E. THE RECORD SUPPORTS THE GRANT OF SUMMARY JUDGMENT AND THE DENIAL OF THE RECONSIDERATION AS DEFENDANT REQUESTED. ----------------------------- 55
POINT IV - [NOT RAISED]. DEFENDANT'S POINT IV MUST BE DISREGARDED A) AS NOT RAISED BELOW, AND B) SEEKING THIS COURT'S ADVISORY OPINION.- 56
5. Conclusion --------------------------------------------, 65
6. Appendix ---------------------------------------------- 67
Note: Documents/filings referenced though not attached are identified by "(*)".
11
! ;
TABLE OF CITATIONS
Cases
Alba v. Sopher, 296 N.J. Super. 501, 503-504 (App. Div. 1997) ---------------------------------------- 54
Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301,302 (App. Div. 2009) --------------------------- 11,58
Arthur Anderson LLP v. Carlisle, 556 u.S. 624, 129 S.Ct. 1896, 1902 (2009), fn 6 --------------------------- 61
AT&T Mobility LLC v. Concepcion, --- u.S. ---, 131 S.Ct. 1740 (2011) --------------------------------------- 58
Berkowitz v. Haigood, 256 N.J.S. 342 (Law Div. 1992) ----24,26,31
Brill v. Guardian Life Ins. Co., 142 N.J. 520, 539-540 (1995) ------------------------------------------ 12,13
Cavalry Portfolio, LLC v. Kumbaris, 2011 N.J. Super. Unpub. LEXIS 2965 (App. Div. 2011) ---------------------- 61
Cavalry Portfolio, LLC v. Sharma, 2011 N.J. Super. Unpub. LEXIS 533 (App. Div. 2011) ----------------------- 62
Cannuscio v. Claridge Hotel & Casino, 319 N.J. Super. 342, 347, 725 A.2d 135 (App. Div. 1999) ----------------- 11
Capital Finance Co. of Delaware Valley, Inc. v. Asterbadi, N.J. Super. 299, 310 (App Div. 2008) -------------------- 53
Cogan v. Conover Manufacturing Co., 69 N.J.Eq. 809, 811, 813, 814 (E. & A. 1906) ---------------------------- 32,33
Commonwealth Financial Systems, Inc. v. Smith, 2011 PA. Super. 30 (Superior Court 2011) --------------------- 63,64
Costanzo v. Costanzo, 248 N.J. Super. 116, 124 (Ch. Div. 1991) ----------------------------------------- 25,26
Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996) ---------------------------------------- 10,53
DiTolvo v. DiTolvo, 131 N.J. Super 72, 79 (App. Div. 1974)---------------------------------------------------- 25
iii
DNS Equity Group Inc. v. Lavallee, 26 Misc.3d 1228 (A) (N.Y.Dist.Ct. 2010) ------------------------------------- 62
Estate of Hanges v. Metropolitan Property & Casualty Insurance, 202 N.J. 369 (2010) -------------------------- 10,16
Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963) ------------------------------------ 58
Goldfarb v. Reicher, 112 N.J.L. 413,414 (N.J.Sup.Court 1934), aff'd 113 N.J.L. 399 (E&A 1934) ------------------ 25
Grand Union Co. v. Sills, 43 N.J. 390, 410 (1964) ------- 57
Greenberg v. Stanley, 30 N.J. 485,497-498 (1959)--------- 46
Hammer v. Thomas,415 N.J. Super. 237, 245 (App. Div. 2010), certif. den. 205 N.J. 100(2011) ------------------------- 10
Hengeller v. Brumbaugh & Quandahl, P.C., LLO, 2012 U.S.Dist. LEXIS 131125 (D. Neb. 9/12/12) ----------------- 60
Hirsch v. Phily, 4 N.J. 408 (1950) 32
In Re Blau's Estate, 4 N.J. Super. 343, 351 (App. Div. 1949) ---------------------------------------------- 47
In Re Columbraro, 230 B.R. 673, 676 (Bankr.D.N.J. 1999)-- 25
In Re Fontaine, 231 B.R. l(Bankr.D.NJ 1999) ------------- 25
In Re Reguests to Judges in Chancery for Advisory Opinions, 101 N.J.Eq. 9 (Ch. Div. 1927) ----------------- 57
In Re Rosen, 157 F.2d 997, 1000 (3rd Cir. 1946) ----------31,32,34
In the matter of the Xanadu Project at the Meadowlands Complex, Application of Benihana Meadowlands Corporation for a Special Concessionaire Permit, 415 N.J. Super. 179 (App. Div. 2010)------------------------------------- 57
Interchemical Co. v. Uncas Printing & Finishing Co., 38 N.J. Super. 318, 328 (App. Div. 1956) ------------------- 46
iv
Jenkinson v. New York Fin. Co., 79 N.J. Eq. 247 (Ch. 1911)- 31
Jugan v. Pollen, 253 N.J. Super. 123, 136 (App. Div. 1992)- 17
K. Woodmere Associates, L.P. v. Menck Corporation, 316 N.J. Super. 306 (App. Div. 1998) ------------------------- 27,28
Konop v. Rosen, 425 N.J. Super. 391, 411 (App. Div. 2012)- 47
Krawczyk v. Centurion Capital Corporation, et al., 2009 U.S.Dist. LEXIS 12204 (N.D. Ill., E.D. 2009) ------------- 59
Leang v. Jersey City Board of Education, 399 N.J. Super. 329, 379-380 (App. Div. certif. granted 196 N.J. 87 (2008)) 56
Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006)--- 17
Lubinsky v. Court of Common Pleas of Passaic County, 15 N.J. Misc. 183 (Sup. Ct. 1937) --------------------------- 19,35
LVNV Funding L.L.C. v. Colvell, 421 N.J. Super. 1 (App. Div. 2011) ----------------------------------------37,39,40
47,56
LVNV Funding LLC v. Delgado, 24 Misc.3d 1230(A) (N.Y.Dist.Ct. 2009) -------------------------------------- 63
Matute v. Main Street Acquisitions Corp., 2012 U.S.Dist. LEXIS 142589 (S.D.FI. 10/2/12) --------------------------- 60,61
Moorestown Trust Company v. Buzby, 109 N.J.Eg. 409 (Ch. 1932)------------------------------------------------ 31,34
Moran v. Joyce, 125 N.J.L. 558 (Sup. Ct. 1941), aff'd, 27 N.J.L. 562 (E&A 1942) --------------------------------- 19,35
MRC Receivables Corporation v. Gottesman, 2007 N.J. Super. Unpub. LEXIS 965 (App. Div. 2007) -----------------11,12,58
N.J. Citizen Action Committee v. Riviera Motel Corp., 296 N.J. Super. 402, 413 (App. Div. 1997) ------------------- 20
New Century Financial Services, Inc. v. Dunn, 2009 N.J. Super. Unpub. LEXIS 1365 (App. Div. 2009)------------ 57
v
Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229 (1973)---- 56
Novack v. Cities Service Oil Co., 149 N.J. Super. 542 (Law Div 1977) aff'd 159 N.J. Super. 400 (App Div 1978) certif. den. 78 N.J. 396 (1978) -------------------------- 37
Penbara v. Straczynki, 347 N.J. Super. 155, 163 (App. Div. 2012) ----------------------------------------------- 48
Peterson v. Township of Raritan, 418 N.J. Super. 125, 132 (App. Div. 2011) ------------------------------------- 12
Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) ------------------------------------------ 58
Rushmore Recoveries X, L.L.C. v. Skolnick, 15 Misc.3d 1139(A) (N.Y.Dist.Ct. 2007) ------------------------------ 62
Russell v. Fred G. Pohl Company, 7 N.J. 32, 40(1951) ----22,30,31 34
Senders v. CNA Ins. Cos., 212 N.J. Super. 518 (Law Div. 1986) ------------------------------------------ 16
Shaler v. Toms River Obstetrics Gynecology Assocs., 383 N.J. Super. 650, 657 (App. Div.) certif. den. 187 N.J. 82 (2006) --------------------------------------- 10
State v. Bendix, 396 N.J. Super. 91, 95 (App. Div. 2007)-- 56
State ex reI. Wm. Eckelmann, Inc. v. Jones, 4 N.J. 207,' 214 (N.J. 1950) ------------------------------------------ 49
Sullivan v. Visconti., 68 N.J.L. 543 (Sup Ct. 1902), aff'd 69 N.J.L. 452 (E&A 1903) ---------------------------passim
Tirgan v. Mega Life ~ Health Ins., 3304 N.J. Super. 385, 390 (Ch. Div. 1991) -------------------------------------- 26
Transcon Lines v. Lipo Chern., Inc., 193 N.J. Super. 456, 467 (Dist. Ct. 1983) ------------------------------------24,26,28
Triffin v. Johnson, 359 N.J. Super. 543 (App. Div. 2003)-- 27
Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80-81, 87 (2001) ----------------------------------------- 18
vi
"
WaIn v. Hance's Adm'rs, 53 N.J. Eq. 668 (Sup. Ct. 1895) -- 18,35
Webb v. Midland Credit Management, Inc. ("Midland"), 2012 U.S.Dist. LEXIS 80006 (N.D. Ill., E.D., May 31, 2012)----- 58,61
Weller, et ale v. Jersey City, H&P St. R. Co., 68 N.J.Eq. 659 (E&A 1905) ----------------------------------- 25
Rules and Statutes
R. 1:6-3 ------------------------------------------------- 54
R. 1:7-4 ------------------------------------------------- 50
R. 4:26-1 ------------------------------------------------ 18
R. 4:46-2 ------------------------------------------------ 12
R. 6:3-3(a) ---------------------------------------------- 54
R. 6:4-3(f) ---------------------------------------------- 6
R. 6:6-3(a) ---------------------------------------------39,40,41 42,56
12 CFR §226.13 ------------------------------------------- 38,43
15 U.S.C. §1666(a) --------------------------------------- 38
49 u.s.c. 10701 et seq. ---------------------------------- 28
49 U.S.C. 10744 ------------------------------------------ 29
N.J.R.E. 101(a) (2) ---------------~----------------------- 3
N.J.R.E. 101(a) (2) (A) -----------------------------------11,50,51 52,63
N.J.R.E. 101(a) (4) ---------------------------------------passim
N.J.R.E. 101(b) (1) --------------------------------------- 17
N.J.R.E. 803(c) (6) ---------------------------------------2,44,45 63
vii
"
N.J.R.E. 901 --------------------------------------------- 47
N.J.S.A. 2A:25-1 (incorrectly cited as N.J.S.A. 2A:15-1) - 22
N.J.S.A. 12A:2-105(1) ------------------------------------ 21,34
N.J.S.A. 12A:3-104 --------------------------------------- 22,34
N.J.S.A. 12A:9-101 et seq. ------------------------------- 22,34
N.J.S.A. 12A:9-406(a) ------------------------------------ 34
N.J.S.A. 12A:102 ----------------------------------------- 33
Pa.R.E. 803(6)-------------------------------------------- 63
Other Authorities
65 Fed. Reg. 36,903, Federal Register Vol 65, No. 112 (June 12, 2000)----------------------------------- 4,41
1992 Report of the Supreme Court Committee on Special Civil Part Practice -------------------------------------- 42
2004 Report of the Supreme Court Committee on Special Civil Part Practice -------------------------------------- 43
Uniform Commercial Code Title 2 (sale of goods), Title 3 (negotiable instruments), Title 9 (security interests)---- 22,34
Note: Transoript "T" refers to the Jul.y 27, 2012 Motion hearing before the Bon. Martha T. Royster, J.S.C.
Further Notes:
"DB" refers to Defendant's Brief. "PB" refers to Pl.aintiff's Brief. "DA" refers to Defendant's Appendix. "PA" refers to Pl.aintiff's Appendix.
Documents/fil.ings referenoed though not attaohed are identified by"(*)".
viii
PRELIMINARY STATEMENT
Plaintiff, New Century Financial Services, Inc. ("NCFSI")
sought to collect the amounts due on Defendant, Ahlam Oughla's,
defaulted credit card account. Plaintiff notes Defendant's
references to "junk-debt" and "junk-debt buyer". Same are
derogatory in nature and solely designed to cast those who
either purchase or seek to collect same as unsavory. Such must
be disregarded as mere name-calling. Most important is that
such effort in no wise suggests that the instant subject credit
card debt is neither owed nor due as claimed.
Plaintiff's proofs amply establish the three elements of
its claim: (1) Defendant was the account debtor; (2) the charge
off balance due was $723.82; and (3) that it owns the account.
Initially pro-se, Defendant filed her general denial not as to
what Plaintiff claimed but simply that "Plaintiff provided no
documentation to support the charges alleged in the Complaint,
therefore defendant denies all allegations". Same is not a
denial but, rather, an appearance. Defendant voiced similar
non-response to Plaintiff's discovery, strategically limiting
response to avoid disclosure of any facts either about the
account or defenses.
In response to Plaintiff's summary judSJIllent motion,
Defendant made no denial that the account was hers; asserted no
1
error in the amount sought; and offered no facts to controvert
Plaintiff's claimed ownership. What Defendant did state was
that Plaintiff failed to provide admissible evidence of the
account and/or Plaintiff's ownership thereof. What she fails to
consider is the relaxation of evidence rules in Small Claims
actions.
The motion judge had the benefit of Plaintiff's Business
Development Manager's Certifications, the various bills of sale
supporting its claim of title, and the periodic statement for
the last billing cycle covering the period ending on October 4,
2008. In the face of same, Defendant took the calculated risk
to say nothing. Because Defendant offered not one contrasting
fact, there was but one overwhelming conclusion. From all
sources, there was no doubt that the amount due to Plaintiff
from Defendant was $723.82.
Here, Defendant evaded open and honest inquiry. The motion
judge noted Defendant's failure to offer any evidence to create
a genuine issue of material fact. This case is an important
opportunity for this Court to discuss the interplay between two
Evidence Rules, namely, N.J.R.E. 101 (a) (4) and N . J . R. E .
803 (c) (6) . While Defendant claims that Plaintiff's proofs are
objectionable as hearsay, without conceding same as correct, in
civil matters where no bona fide dispute exists, N.J.R.E.
101 (a) (4) allows a court to review relevant evidence without
2
· A
regard to the exclusionary rules. The motion court's decision
to review Plaintiff's proofs was within that discretion and must
be affirmed. Moreover, as alluded to above, because this action
was cognizable in the Small Claims section of the Special Civil
Part, the evidence rules may be relaxed altogether.
101 (a) (2) .
N.J.R.E.
This appeal also presents the opportunity for this Court to
reiterate that our discovery rules must not be trivialized in
practice. There is an obligation on all litigants to answer
discovery completely and honestly. Parties and their counsel
must stand ready to admit the truth of relevant matters where no
real controversy exists. Defendant's discovery responses
reflect willful, purposed evasiveness.
With the competent evidence so lopsided, the entry of
summary judgment in Plaintiff's favor must be affirmed.
STATEMENT OF FACTS
The instant matter is an action to collect a defaulted
Credi t One Bank ("Credit One") credit card account in the name
of the Defendant, Ahlam Oughla, having account number 4447 9621
4582 8657("account 8657"). (DA-1a) . Once· opened, ownership
thereof was transferred to an entity entitled MHC Receivables,
LLC ("MHC") while Credit One continued to service same. See the
3
"AFFIDAVIT" of Jon C. Mazzoli, DA-100a, ("Mazzoli Affidavit"),
attached as an exhibit to the Certification of Marko Galic,
Plaintiff's Business Development Manager (DA-87a, Par. 8), in
opposi tion to the Defendant's reconsideration motion. ( "Galic
Recon. Cert . ") The subject account was opened on October 25,
2007 ("OriginationDate") . (See attachment, DA-46a, to the
Certification of Marko Galic In Support of Summary Judgment
("Galic Cert.") (DA-44a, Par. 3); See also redacted credit report
(DA-80a) showing a "10-07" open date, attached to the
Certification of Steven A. Lang, Esq. at par. 3 ("Lang Cert.")
(DA-74a) . Said attachments also reflect that the last payment
on the account was made on "03/02/2008" ("LastPmtDate", DA-46a)
and "3-08" (DA-80a).
Defendant ultimately failed t~ make payment on the account
as reflected on the final billing statement issued before
charge-off and Defendant's credit report. (DA-56a, DA-102a and
DA-80a) . As authorized by federal regulations (65 Fed. Reg.
36,903 (PA-1a,4a»), Credit One charged the account off on
October 5, 2008. Same is reflected in the attachment to the
Galic Cert. (DA-44a, 45a) entitled "ELECTRONICALLY TRANSMITTED
INFORMATION FROM SELLER" ("ChgOffDate", DA-46a), and noted as
imminent on the said final periodic account statement (DA-56a,
102a) which states "YOUR ACCOUNT IS SCHEDULED TO BE CHARGED
OFF." See Galic Recon. Cert., Par. 9. (DA-88a).
4
At the time Credit One charged-off the account, the balance
due thereon was $723.82. Galic Cert. (DA-44a,45a and DA-56a,
final billing statement); Galic Recon. Cert. Par. 9 (DA-88a, DA-
102a, final billing statement); and Lang Cert. par. 3 (DA-74a
and 80a, Defendant's credit report showing "$723-C CHARGOFF").
On November 17, 2008 MHC assigned all of its rights, title
and interest in the Credit One account to Sherman Originator LLC
which simultaneously transferred same to LVNV Funding LLC. See
Galic Cert. (DA-44a, and exhibits thereto DA-49a and 50a).
Thereafter LVNV Funding LLC assigned its rights to Sherman
Acquisition LLC on November 29, 2011. See Galic Cert. (DA-44a,
and exhibit thereto DA-52a). On said same date Sherman
Acquisition LLC transferred the subject account to Plaintiff
herein. See Galic Cert. (DA-44a, and exhibit thereto DA-54a).
Same was referred to collection.
PROCEDURAL HISTORY
Plaintiff's complaint was filed in the Special Civil Part
of the Law Division, Hudson County, on February 16, 2012 and was
assigned Docket No. HUD-DC-004244-12. (DA-1a) The complaint
seeks to collect the $723.82 Plaintiff alleges is due. Same was
within the jurisdictional limits of the Small Claims section.
Defendant was served on February 21, 2012 and filed her pro-se
5
Answer thereto on March 20, 2012. (DA-2a) . Therein she
selected box #6 entitled "Other" and added: "Plaintiff provided
no documentation to support the charges alleged in the
complaint, therefore defendant denies all allegations."
Because this matter was within the jurisdictional limits of
the Small Claims section of the Special Civil Part, discovery
was limited to no more than 5 interrogatories absent leave of
court. R. 6:4-3(f). Plaintiff sent three interrogatories to
Defendant which she did answer. (DA-60a). Those responses were
not candid. Question 1 asked Defendant to set forth "all facts
in support of each defense and/or claim". Her response was:
"Claim: Plaintiff lacks standing to bring suit. Facts:
Plaintiff has not shown standing to bring suit, such as a full
chain of transfer and assignment of alleged debt, with full
testament and notarization by each seller." (DA-60a). No facts
were disclosed to dispute either Plaintiff's ownership of her
said account or the amount claimed as due. Question 2 asks
Defendant to "[a]ttach copies of all writings [etc.] which
related to said account or in any way support any defenses or
claims, ... ". Rather than fairly addressing the question as asked,
Defendant re-drafted Plaintiff's question and answered same as
if it were phrased in the disjunct~ve: "Support of claim is
based on lack of documentation." (DA-60a) . Defendant wholly
ignored that part of question 1 that asked for the factual basis
6
for any defense and that part of question 2 that asked for
documents relating to the account. Those failures, though
sharp-witted, are intellectually dishonest and misleading. Same
reveal her unwillingness to fairly respond to Plaintiff's
legitimate discovery or openly participate in this litigation.
Plaintiff filed a motion for summary judgment on May 14,
2 0 12 . ( DA - 4 0 a) . Defendant filed opposition to Plaintiff's
motion on May 24, 2012. (DA-64a). By order dated May 25, 2012,
the Honorable Martha Royster, J.S.C. granted. Plaintiff's motion.
(DA-3a) . There was no oral argument on the summary judgment
application as time would not have allowed for same. It is to
be noted that the timing of the grant of the application, one
day after the filing of Defendant's opposition, also denied
Plaintiff the opportunity to file its ·reply.
through T30-18) .
(See T14-7; T29-1
On June 14, 2012, Philip D. Stern & Associates, LLC filed a
substitution of attorney and a motion for reconsideration of the
May 25, 2012 order. (DA-70a). On July 2, 2012, Plaintiff filed
opposition. (DA-73a). On July 27, 2012, the Honorable Martha
Royster, J.S.C. conducted oral argument (See transcript,
hereinafter referenced as "T"). Defendant argued that the
proofs submitted by Plaintiff do not establish its ownership of
the account. (T37-1 through T38-2). Included therein is
7
Defendant's position that the final periodic statement (DA-56a,
102a) lacks appropriate foundation.
Judge Royster denied Defendant's motion for reconsideration
by reason of Defendant's failure to have established the
existence of a materially disputed fact as to any element of
Plaintiff's claim or set forth any matter (s) overlooked by the
court or otherwise as to how it had erred. The motion judge
made the following Findings of Fact ("FOF") and/or Conclusions
of Law ("COL"):
1. Plaintiff's testimony is competent to prove its ownership
of the subject credit card account receivable.
through 12), (T34-25 through T36-16);
(T42-S
2. The Plaintiff's proofs established that they owned the
account, the account is in default and they are entitled to
judgment. (T33-22 through T35-11), (T44-16 through T45-15);
3. Notice was not a concern with respect to an assignment of a
chose-in-action. (T27-3,4);
4. A litigant's proofs in support of a summary judgment motion
need not be overwhelming, but just enough to support its
position. (T34-5 through 11);
5. A litigant opposing a summary judgment must do more than
merely allude that a genuine issue of material fact exists.
(T34-15 through lS);
8
6. The Defendant has submitted nothing to support its request
that the motion judge reverse her decision granting
summary judgment. (T33-22 through T34-4) (T41-17 through
22);
7. No genuine issue of material fact was presented which
would militate against the entry of summary judgment in
Plaintiff's favor. (T42-13 through 23), (T44-16 through
T45-15);
8. The Plaintiff's proofs established that they owned the
account, the account is in default and they want their
money. (T44-16 through T45-15); and
9. The defendant presented no matter as to which the court
overlooked or otherwise erred, or any new fact that would
have changed its decision. (T41-23 through T42-6) .
On or about August 13, 2012, Defendant filed a Notice of
Appeal (DA~5a) of the court's orders, 1) granting summary
judgment dated
reconsideration
May 25,
dated July
2012 (DA-3a); and 2) denying
27, 2012. (DA-4a). Defendant also
filed a motion for an order staying enforcement of the judgmen~
pending appeal (*), which was granted. (DA-103a)
9
LEGAL ARGUMENT
STANDARDS OF REVIEW
a. On Appeal
The determination of whether or not a trial court erred in
its grant of a summary judgment motion is a question of law.
Shaler v. Toms River Obstetrics Gynecology Assocs., 383 N. J.
Super. 650, 657 (App. Div.) certif. den. 187 N.J. 82 (2006). As
such it is a de novo review wherein the first task is to decide
whether any material issues of material fact exist, and then, to
determine whether the application of law by the motion judge was
correct. See Hammer v. Thomas, 415 N.J. Super. 237, 245 (App.
Div. 2010), certif. den. 205 N.J. 100(2011).
The Defendant also challenges the denial of her motion
seeking reconsideration. The applicable standard of review is
the abuse of discretion standard. Cummings v. Bahr, 295 N. J.
Super. 374, 389 (App. Div. 1996). To the extent that review
involves the motion judge's evidentiary rulings, the review
standard is also the abuse standard even within the framework of
a summary judgment motion. See Estate of Hanges v. Metropolitan
Property & Casualty Insurance, 202 N.J. 369 (2010).
Finally, Defendant asks that this Court exercise its
original jurisdiction. (DB-10). "Appellate review, however,
10
'does not consist of weighing evidence anew and making
independent factual findings; rather, [the appellate] function
is to determine whether there is adequate evidence to support
the judgment rendered' by the trial court. Cannuscio v. Claridge
Hotel & Casino, 319 N.J. Super. 342, 347, 725 A.2d 135 {App.
Div. 1999).N Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289,
301,302 (App. Div. 2009).
Here, where the matter was cognizable within the Small
Claims section of the Special Civil Part, all relevant evidence
was admissible under the relaxed evidence rules applicable
therein. See N.J.R.E. 101(a) (2) (A). Therefore the findings and
conclusion below during argument adequately expressed the motion
court's ruling and should be affirmed. Otherwise, this Court
may properly infer from grant of summary judgment that Her Honor
had reached certain conclusions. See MRC Receivables Corp. v.
Gottesman, 2007 N.J. Super. Unpub. LEXIS 965 (App. Div. 2007).
(PA-15a) .
b. Summary Judgment
The summary judgment standard is well-settled. Rule 4: 46-
2(c), ~Proceedings and Standards on Motions N, provides that
summary judgment should:
be rendered forthwith if the pleadings, deposi tions, answers to interrogatories and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact
11
challenged and that the moving party is enti tIed to a judgment ... as a matter of law.
Determining whether a genuine issue of material fact exists
requires the court to consider "whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational fact
finder to resolve any disputed facts in favor of the non-moving
party." If there is a "single, unavoidable resolution of a
disputed fact, there is no dispute as to the issue for purposes
of R. 4:46-2." Brill v. Guardian Life Ins. Co., 142 N.J. 520,
539-540 (1995).
Vague assertions do not create an issue of fact. See, e.g.
MRC Receivables Corporation v. Gottesman, supra, (holding that
an account debtor's claim that he "was not sure" was
insufficient to defeat an assignee of a defaulted credit card
account's motion for summary judgment). Likewise, "bare
conclusions in the pleadings, without factual support in
tendered affidavits, will not defeat a meritorious application
for summary judgment." Peterson v. Township of Raritan, 418
N.J. Super. 125, 132 (App. Div. 2011).
While a deserving litigant should be afforded a trial, it
is equally important that courts not permit a deserving movant
to be put through the expense and stress of a "long and
worthless trial." When the evidence is so lopsided in favor of
12
the movant the court should "not hesitate to grant summary
judgment. H Brill, at 540. The. burden is on the non-movant to
"come forward with evidence that creates a genuine issue as to
any material fact challenged." Brill, at 529. That burden
cannot be met by offering "only facts which are immaterial or of
an insubstantial nature, a mere scintilla, '[f]anciful,
frivolous, gauzy or merely suspicious.' Id.
The motion court made the following reasoned findings that
the account is owned by Plaintiff and the credit card was used
by Defendant and due in the amount of $723.82 plus the pre
judgment interest as had been claimed:
1. Plaintiff's testimony is competent to prove its ownership
of the subject credit card account receivable.
through 12), (T34-25 through T36-16);
(T42-8
2. The Plaintiff's proofs established that they owned the
account, the account is in default and they are entitled to
judgment. (T33-22 through T35-11), (T44-16 through T45-15);
3. Notice was not a concern with respect to an assignment of a
chose-in-action. (T27-3,4);
4. A litigant's proofs in support of a summary judgment motion
need not be overwhelming, but just enough to support its
position. (T34-5 through 11);
5. A litigant opposing a summary judgment must do more than
13
merely allude that a genuine issue of material fact exists.
(T34-15 through 18);
6. The Defendant has submitted nothing to support its request
that the motion judge reverse her decision granting
summary judgment. (T33-22 through T34-4) (T41-17 through
22) ;
7. No genuine issue of material fact was presented which
would militate against the entry of summary judgment in
Plaintiff's favor. (T42-13 through 23), (T44-16 through
T45-15);
8. The Plaintiff's proofs established that they owned the
account, the account is in default and they want their
money. (T44-16 through T45-15); and
9. The defendant presented no matter as to which the court
overlooked or otherwise erred, or any new fact that would
have changed its decision. (T41-23 through T42-6) .
In so finding the court noted that the uncontroverted
certifications and documents submitted by the Plaintiff
establish its prima facie entitlement to the entry of summary
judgment. (T34-5 through T35-12). Those proofs included:
- The two Certifications of Marko Galic, Plaintiff's
Business Development Manager (DA-44a and DA-87a) in
which he certified that Plaintiff was the owner of
14
,
the Defendant's defaulted Credit One account, that
it had acquired same by purchase, and that attached
thereto was the a) account information acquired at
the time of the purchase
96a); b) a true copy
(DA-46a) ,(DA-92a through
of the Bill of Sale
commemorating same (DA-54a) (DA-91a)i c) other bills
of sale, transfers, or declarations evidencing the
chain of title from the original issuer to NCFSI
(DA-49a through 53a) i and d) a true copy of the
periodic account statement for the last billing
cycle (the ~charge-off statement")
l02a) .
(DA-56a), (DA-
Its Business Development Manager's certifications, and the
materials presented that it received as part and parcel of its
acquisition of the subject account, are based on his personal
knowledge, and therefore competent and admissible proofs. Same
provide unrebutted evidence of Plaintiff's ownership of the
defaulted account by transfer.
The Plaintiff's records are maintained electronically (DA-
4 4a, par. 2). The account information as received at the time
of the assignment (DA-46a, DA-92a through DA-96a) conforms with
the financial information contained on the periodic statement
for the final billing period before charge-off (DA-I02a) which
is attached to the Certification of Mr. Galic. DA-87a, Par. 9.
15
• Same also conforms with the Defendant' s credit report of the
account (DA-80a) attached to the Lang Cert. (DA-74a, Par. 3).
Defense counsel criticizes the motion judge for failing to make
evidentiary rulings (DB-I0) in his interpretation of her use of
the word "sustainable" at T42-15. However, the motion court
repeatedly referenced the failure of the Defendant to dispute
that the account was hers. (T33-22 through T34-4), (T41-17
through T43-12), (T45-3 through 8). Even Defendant's [Counter-]
Statement of Material Facts (DA-66a) fails to set forth one
disputed material fact. A bona fide dispute requires a genuine
factual conflict. In the absence of a bona fide dispute, the
motion court was free to receive all relevant evidence under
N.J.R.E. 101 (a) (4) . See generally, Senders v. CNA Ins. Cos.,
212 N.J. ·Super. 518 (Law Div. 1986).
Whether or not this appeal concerns a summary disposition,
the motion court's evidentiary rulings are within its sound
discretion and may not be disturbed in the absence of an abuse
of discretion. See Estate of Hanges, supra. The Defendant has
offered no substantive challenge to Plaintiff's claim of
ownership or any other factual issue relevant hereto. In such
light and without conceding the correctness of Defendant's
claims disputing the competency of Plaintiff's evidence, in the
absence of a bona fide dispute, N.J.R.E. 101(a) (4) justified the
court's considerations of Plaintiff's relevant submissions as
16
•
evidence. See Jugan v. Pollen, 253 N.J. Super. 123, 136 (App.
Div. 1992).
The applicable burden in civil matters generally is proof
by a preponderance of the evidence. N.J.R.E. 101 (b) (1).
Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 169 (2006). Here
the Plaintiff has met its burden on the issues of its ownership
of the subj ect account, the balance due, and the Defendant's
responsibility therefor. As the motion judge appropriately
noted (T42-8 through T43-5), the totality of the evidence was
entirely one-sided, competent, and mandated the entry of
judgment in Plaintiff's favor.
POXNT I - NEW JERSEY'S DECISIONAL LAW DEFXNES WHAT PROOFS CONSTITUTE COMPETENT EVXDENCE TO ESTABLISH OWNERSHXP OF PERSONALTY.
Here, pursuant to the law of the State of New Jersey,
competent evidence of Plaintiff's ownership of the subject
account was expressed in the said Certifications of its Business
Development Manager, Marko Galic. (DA-44a, par. 1), (DA-87a,
par. 2,3). Mr. Galic certified that NCFSI owned the account. As
noted by the motion judge, the totality of the evidence on the
issue and the lack of any dispute supported entry of summary
judgment in Plaintiff's favor. (T33-22 through T34-18), (T43-6
17
through 12). Defendant offered no contrary evidence, yet,
nonetheless, argues that NCFSI failed to prove its ownership.
A. PLAINTIFF HAS STANDING AS THE REAL PARTY IN INTEREST
Standing is a threshold issue to be decided before
substantive issues are considered. Defendant argues that:
Although a debt buyer such as NCFSI may think it owns the claim, if it lacks evidence to prove a valid chain of assignment, it is unable to demonstrate standing. (DB-11).
"Standing is governed by ~. 4: 26-1, which provides that 'every
action may be prosecuted in the name of the real party in
interest , ... . , [and that] to be entitled to sue, a party must
have 'a sufficient stake and real adverseness with respect to
the subject matter of the litigation.' [citation omitted]".
Triffin v. Somerset Valley Bank, 343 N.J. Super. 73, 80-81 (App.
Div. 2001).
The threshold question is whether Plaintiff is the owner of
the subj ect account. It has long been the law of this State
that proof of ownership sufficient to prevail on a claim may be
presented solely by testimony alone. Indeed, the testimony of an
individual as to a claim of right to property is competent proof
of such fact. See WaIn v. Hance's Adm'rs, 53 N.J. Eq. 668 (Sup.
Ct. 1895). There the court held:
18
•
But in her testimony she says it belonged to her husband, and that she never claimed to have owned it. This testimony from her own lips must forever settle this branch of the case against her... I found above, according to the testimony of Mrs. WaIn herself, that this personal property was the property of William WaIn, her husband.
Similarly, in Lubinsky v. Court of Common Pleas of Passaic
County, 15 N.J. Misc. 183 (Sup. Ct. 1937), the court held that
the unrebutted testimony of a person claiming ownership was
sufficient as a matter of law to support the entry of judgment
in the claimant's favor. Lubinsky involved a levy on personal
property. The plaintiff claimed that he, rather than the
judgment debtor owned that property. In affirming a verdict in
favor of the plaintiff/claimant, the court stated:
The testimony as to ownership was all in his favor and the circumstances which the prosecutor claims to be suspicious and to the contrary, were not sufficient to justify submission of the case to the jury. The judgment is affirmed, with costs.
Id. at 184. See also Moran v. Joyce, 125 N.J.L. 558 (Sup. Ct.
1941), aff'd, 27 N.J.L. 562 (E&A 1942) (uncontroverted testimony
without counter evidence was sufficient as a matter of law to
support a ruling that the claimant owned the property at issue).
Defendant's reliance on Sullivan v. Visconti, 68 N.J.L. 543
(Sup Ct. 1902), aff'd 69 N.J.L. 452 (E&A 1903) is misplaced.
19
There, the court held that no particular form of proof is
necessary to prove the assignment of an intangible. The court
stated:
The policy of this state, from an early period, has been liberal with respect to assignments of choses in action.
It is indeed, settled that where the suit is brought by the assignee in his own name he must aver and prove that the cause of action was, in fact, assigned to him. [citations omitted] .
But there is nothing in this rule that prescribes or makes necessary any particular form of assignment.
But it was long ago held by this court that an assignment of a chose in action, in order to be valid at law, does not even require to be in writing. [citation omitted]. Id. at 550.
The law of this State "does not recognize any distinction
between the concepts of standing and real party in interest."
N . J. Ci ti zen Action Commi t tee v. Riviera Motel Corp., 296 N. J.
Super. 402, 413 (App. Div. 1997). Here, as noted above,
Plaintiff's Business Development Manager certified that it
purchased and now owned the account. That testimony is
sufficient proof of its ownership and to grant to it the
requisite standing.
20
B. ASSIGNMENT OF A CHOSE-IN-ACTION IS DIFFERENT FROM THE TRANSFER OF OTHER TYPES OF PROPERTY.
As noted by Defendant at DB-12, early statutory enactments
granted legal title unto an assignee thus destroying the
theretofore applied fiction that an assignment of an intangible
created a trust in favor of the assignee with the power to
control the enforcement thereof by an action at law. See
Sullivan, supra, at pp.548-550. Consequently, an assignee of a
chose in action is now the legal, as opposed to equitable, owner
thereof.
The essence of a chose-in-action is in its lack of tangible
presence. Unlike a bicycle or a chair, a debt has no corporeal
presence. Defendant's discussions vis-a-vis the transfer of
realty, interests in business entities, possessory interests in
real estate, property or interests therein requiring documents
of title or certificated shares, have no relevance to the
instant matter.
Here there are no competing claimants with respect to the
subject debt; nor does the Defendant claim credit for payments
made on the claim prior to his receipt of notice of the
transfer. The transfer of the Defendant's account is not
subject to the provisions of Title 2 (sale of goods) or Title 3
(negotiable instruments) of the Uniform Commercial Code. The
subject credit card account is neither "goods" (N.J.S.A. 12A:2-
21
105(1)) nor a "negotiable instrument". (N.J.S.A. 12A:3-104).
While Defendant does contend that the provisions of u.c.c. Title
9 (security interests) (N.J.S.A. 12A:9-101 et seq.) does apply,
wi thout concession by Plaintiff as to the correctness thereof,
such is irrelevant as no claims of or relating to a security
interest are raised herein.
As set forth in the very case on which Defendant so heavily
relies, the assignment of a debt requires no special form and
needs not even be in writing. Sullivan, supra, at p.550.
Defendant's argument to interj ect notice of the assignment to
the obligor (DB-IS) as an element of a valid assignment of an
intangible is unsupported as a matter of law and was expressly
rejected by the motion judge. (T27-3, 4) . Such Point, however,
was abandoned during oral argument. (T21-25 through T22-13).
The only possible issue involving notice would be if an obligor
disregarded notice of a new owner and continued, in defiance
thereof, to make payments to the former holder. See Russell v.
Fred G. Pohl Company, 7 N.J. 32, 40(1951). That issue is simply
not here.
C. ELEMENTS NECESSARY TO PROVE THE ASSIGNMENT OF A CHOSE-IN-ACTION.
On DB-18 Defendant references N.J.S.A. 2A:25-1 (incorrectly
cited as N.J.S.A. 2A:15-1) as the statutory authority for
22
assigning choses-in-action. Choses-in-action were assignable
long before the statute's effective date in 1951 and Defendant
again refers on Sullivan, supra, which requires an assignee to
"aver and prove" his/her ownership of the assigned chose. If
one were to review Sullivan, the language following that comment
makes clear that "no particular form of assignment" is
necessary. Id., at p. 550. In Sullivan, supra, the dispute was
between two competing assignees of a debt. Each assignment was
executed by a different partner of the assignor. The second
assignee instituted suit against the obligor, whose defense was
that its obligation was to an earlier assignee to whom it had
already paid a sum of money. The earlier assignment, though in
writing, nonetheless required parol evidence to identify the
transferred debt. Sullivan, supra, does not stand for the
proposition advanced by Defendant at DB-17 that a valid
assignment requires three elements, namely:
a) unambiguous language of intent to assign,
b) a description of the chose-in-action sufficient to
identify what is being assigned, and
c) notice to the obligor.
FIRST-THE INTENT TO ASSIGN NEED NOT BE WRITTEN.
Sullivan, supra, quite clearly states that "an assignment
of a chose-in-action, in order to be valid at law, does not even
23
require being in writing. [citations omitted]." Id. To make
more of Sullivan, supra, as is expressed in Defendant's argument
is unwarranted and without support. The quoted passage as
appears at DB-19 simply describes one of the assignments in
Sulli van and is not, as Defendant advances, the court's
determination of the elements necessary to effectively assign a
chose-in-action. An assignment is complete as a matter of law
when the res is transferred orally or in writing. It is
complete as a matter of equity when the obligor becomes bound-
over to make payments to the new owner on notice.
supra, cannot be clearer: No writing need ever exist.
Sullivan,
Similarly, other cases cited are misconstrued, or void as
against the public policy of this State. Berkowitz v. Haigood,
256 N.J. Super. 342 (Law Div. 1992) is such a case. In
Berkowitz the assignor, Haigood, sought to assign the proceeds
of a personal inj ury action. In discussing assignments, the
court in Berkowitz relied on Transcon Lines v. Lipo Chern. Inc.,
193 N.J. Super. 456 (Passaic Dist. Ct. 1983), another case cited
by Defendant herein. A more detailed discussion of the
irrelevance of Transcon is set forth below. Whatever Berkowitz
discusses vis-a.-vis the procedural requirements of an
assignment, the entire decision is a mere advisory opinion, as
the object of the assignment (an interest in a personal injury
claim) is void as against public policy. For the same reason
24
that a credi tor cannot generally levy on a debtor's body, one
cannot assign the proceeds of a tort action to recompense
personal injury(ies) thereto. See DiTolvo v. DiTolvo, 131 N.J.
Super. 72, 79 (App. Div. 1974); Weller, et ale v. Jersey City,
H&P St. R. Co., 68 N.J.Eq. 659 (E&A 1905); Goldfarb v. Reicher,
112 N.J.L. 413, 414 (N.J.Sup.Court 1934), aff'd 113 N.J.L. 399
(E&A 1934).
673, 676
See also, in particular, In Re Columbraro, 230 B.R.
(Bankr.D.N.J. 1999) (illegal object of such an
assignment is discussed as violative of our public policy). See
also In Re Fontaine, 231 B.R. 1 (Bankr. D.NJ 1999) (equitable lien
on a personal injury claim disallowed as violative of New Jersey
law. )
Such was the holding in Costanzo v. Costanzo, 248 N. J.
Super. 116, 124 (Ch. Div. 1991), yet another case cited by
Defendant in support of her proposition that ~a valid assignment
must contain clear evidence of the intent to transfer the
person's rights." DB-19. In Costanzo, supra, the court
conducted a confusing analysis of how the proceeds of a tort
claim could be subject to assignment. However, as applied
hereto, Costanzo, supra at pp. 124, 125, merely holds that one
cannot bring an action against the obligor for payments made to
another before notice of the assignment. That issue is separate
and distinct from that of the validity of an assignment between
assignor and assignee or the formal requisites of its formation.
25
As Berkowitz, supra, and Costanzo, supra, must be
disregarded, so, in like fashion, must another case cited by
Defendant, Tirgan v. Mega Life & Health Ins., 3304 N.J. Super.
385, 390 (Ch. Div. 1991). Tirgan, [a Law Division decision, not
a Chancery as cited on DB-19], relies on Costanzo, Berkowitz
and Transcon in a brief summary of persuasive law on the issue
of assignments. In Tirgan, the plaintiff a treating physician
brought suit against his patient and the patient's insurer for
payment of that portion of his bills not covered under the PIP
statute. The physician had received from his patient an
assignment of the patient' s benefits under the policy. The
insurer filed a summary judgment motion claiming, alternatively,
that either plaintiff lacked standing to bring the action or
that it had fully performed under the policy and had made all
payments to the plaintiff/physician. The court determined that
the benefits had been assigned entitling the physician to
payment but that all payments as had been required were made.
The action was dismissed. In that case, described as a case of
first impression, the assignment was clear. That however would
not preclude such clarity corning from parol or even to disallow
the entire assignment agreement being oral as was established in
Sullivan, supra.
26
SECOND-THE ASSIGNED RES MAY BE PROVED BY PAROL.
K. Woodmere Assocs., L. P. v. Menk Corp., 316 N. J. Super.
306 (App. Di v. 1998) is another decision raised by Defendant
that would be without relevance to the instant matter but for
this Court's reliance therein on parol evidence to identify the
assigned res. Woodmere, supra, dealt with cash bonds held by
two municipalities, Dover Township and the Lakewood MUA. There,
the decision of the instant Court as to who owned these funds
rested upon "[t]he uncontroverted testimony [which] showed these
cash bond monies" were not assigned. As applied to the instant
case, the uncontroverted testimony of Plaintiff's Business
Development Manager was that Sherman Acquisition LLC transferred
ownership of the subject account to Plaintiff herein. See Galic
Recon. Cert. at par. 3 (DA-87a) and DA-91a through DA-96a. As
per Sullivan, supra, a valid assignment need not be in writing;
therefore when Woodmere, supra, at p.314, states that "[a] valid
assignment must contain evidence of the intent to transfer ... " it
is not referring to such "evidence" as being in written form,
but, as was in that very case presented, by "uncontroverted
testimony".
The motion court drew inquiry (T25-19) about the
applicability of Triffin v. Johnson, 359 N.J. Super. 543 (App.
Div. 2003). There, the plaintiff testified that he was assigned
the right to collect on two dishonored checks. His testimony
27
was controverted by the very documents presented as proof
thereof.
argument.
It does not alter the strength of Plaintiff's
Defendant notes that Woodmere, supra, relied in part on a
headnote from Transcon Lines v. Lipo Chemical, Inc., 193 N. J.
Super. 456, 467 (Passaic Cty. Dist. Ct. 1983). Defendant argues
that Transcon, supra, applies hereto to hold that Plaintiff's
proofs of assignment must contain a specific description of an
assigned ~thing or debt" to be valid. Transcon, however, does
not concern assignments and is not relevant here. The facts of
such case are meaningfully different and clearly
distinguishable. Because it is so often included in arguments
seeking to impose otherwise non-existent elements upon
assignments, a detailed analysis follows.
Transcon was a dispute between a common carrier and one of
two entities potentially liable for the freight charges. The
issue was not related to assignments or disputed claims of
ownership. It involved a purely esoteric "Interstate Commerce
Act" (~ICA") (49 u. S. C. 10701 et seq.) bill of lading question.
The issue was whether the consignor or re-consignee was
responsible for the freight charges where the instruction to re
consign was not written.
In Transcon, supra, Lipo Chemical, Inc. (~Lipo") ordered
one drum of j oj oba oil from its supplier, E. Pi zante, Ltd.
28
("Pizante"). Pizante took the order and then ordered the drum
from its supplier. Mid-shipment from the supplier to Pizante,
Pizante telephoned the carrier, Transcon Lines, and instructed
it to change the bill of lading to deliver the drum directly to
Lipo. This was done. The problem was that when the drum was
shipped to Pizante the cost of the oil was listed as the
declared value of the goods on the carrier's bill of lading.
According to Transcon's tariff, the declared value, determined
the rate, i.e. the higher the declared value the more costly the
freight charge. Since Lipo had independent insurance to cover
any shipping loss, its previous course of business dealing with
Pizante was to have goods shipped with a nominal declared value
so as to minimize freight charges. Should a loss occur, such
loss would be covered by Lipo's independent insurer. Transcon
sued Lipo, not Pizante, for the unpaid portion of the freight
charges and alleged that Lipo was responsible for the shipping
fee as the re-consignee of the drum. Transcon, however, was
held unable to sustain its cause because Pizante's instruction
to alter the terms of the bill of lading to change the consignee
(i. e. recipient) to Lipo was oral via telephone. The Passaic
County District Court followed 49 u.s.c. 10744 wherein liability
for freight charges followed delivery to a re-consignee only if
the re-consignment was in writing. While this case is an
interesting read about the rCA, it has nothing to do with
29
c
assignments of personalty.
The instant Defendant offered no affirmative proof to
challenge Plaintiff's claim of ownership. If Defendant had a
genuine doubt of Plaintiff's claim, he could have pursued and
produced the results of inquiry with the original creditor or
its successor about the account status. As stated by Mr. Galic
in competent, certified form, NCFSI owns Defendant's account.
Under the preponderance standard, in the absence of any contrary
evidence, same carries the day on claim of ownership and,
concomitant therewith, its standing to prosecute.
THIRD-NOTICE TO THE OBLIGOR IS NOT AN ELEMENT TO DETERMiNE THE VALIDITY OF AN ASSIGNMENT OF A CHOSE-IN-ACTION.
Plaintiff disputes Defendant's contention that notice to
the obligor is a required element of an assignment. It is
understood that if an assignee were to fail to give such notice,
an obligor who, without notice of the assignment, dutifully
continued to pay as before the assignment, cannot be penalized
by being required to make-up those payments with the new owner,
i.e., pay twice. Russell v. Fred G. Pohl Company, supra.
Plaintiff questions the relevance of Defendant's assertion.
Clearly, service of the instant complaint was notice. If
Defendant's allegation is that some special form or manner of
30
notice is required, such is neither expressed nor supported as a
matter of law.
The cases cited by Defendant support Plaintiff's position
that, but for payments made after assignment but before notice,
notice is not an element of an assignment. Berkowitz, supra,
simply restates the "obvious", citing Russell, supra, that
absent notice to the obligor the assignee cannot complain that
payments went to the assignor. Defendant also cites Jenkinson
v. New York Fin. Co., 79 N.J. Eq. 247 (Ch. 1911). This case was
noted as superseded in another case cited by Defendant, In Re
Rosen, 157 F.2d 997, 1000 (3rd Cir. 1946). The superseding case
is therein identified as Moorestown Trust Company v. Buzby, 109
N.J.Eq. 409 (Ch. 1932).
Rosen, supra, is a bankruptcy case wherein the trustee
asserted that certain assets of the bankrupt, specifically
accounts receivable, which had been assigned pre-petition to a
factor, were invalid thereby reclaiming same for the benefit of
the general creditor body. The basis for the claim of
invalidity was that the obligors had not been noticed of the
filing. Because property interests are determined according to
state law, the Third Circuit conducted an extensive review of
our law to determine if the lack of notice vitiated the
assignment. It concluded that under New Jersey law the validity
of an assignment did not depend on notice to the obligor as
31
Defendant herein suggests. The Rosen court did restate, at page
1001 thereof, the admonition that the failure to give notice
will not work to penalize the obligor who has made payments
before notice:
But people with rights may lose them by subsequent events not connected with the original acquisition. Thus the assignee, under all the various rules of different courts, will lose his rights against a debtor who pays the creditor without knowledge of the assignment. The new event has changed the situation. It would now be unfair to let the assignee make the debtor pay twice, although as between assignor and assignee, the latter may be entitled to the proceeds.
Finally, at OB-20 Defendant references Hirsch v. Phily, 4
N.J. 408 (1950) to distinguish same as an exception to the
notice-rule which Defendant incorrectly advances. In Hirsch, it
is stated at p.414 that:
The validity of these assignments as between plaintiff and Artex is in no way affected by the fact that Artex may have acted as the agent of the plaintiff for the purpose of collecting these accounts, or that no notice of the assignment was given to the customers concerned, or that the assignments were given in advance of the actual billing of the customers. All of these points were resolved in Cogan v. Conover Manufacturing
Co., 69 N. J. Eq. 809, 811 , 813 , 814 ( E . & A.
1906) [.]
32
In Cogan, supra at p. 814, the court stated:
The obj ect of notice is discussed by ViceChancellor Pitney, in Board of Educa tion v. Duparguet, 50 N.J. Eg. 234, 24 A. 922, and his view was approved by this court in Miller v. Stockton, 64 N.J.L. 614, 622, 46 A. 619), where Justice Lippincott distinctly said that notice was not an essential part of the assignment.
Notice is not now nor has it been an element to determine
the validity of an assignment of a chose-in-action.
D. TITLE 9 OF THE UNIFORM COMMERCIAL CODE IS IRRELEVANT TO ANY ISSUE HEREIN IN THAT NO SECURITY INTEREST(S) ARE INVOLVED.
In general, a "code" of law is more akin to a civil law
system as in Europe, than the Common Law of England which relied
on stare decisis and precedent as legal authority. Both systems
guide those subject thereto to do what is deemed the right
thing. The Uniform Commercial Code was not designed to support
or challenge the common law but to create a body of law
concerning commerce so as to promote uniformity throughout those
states implementing same. The ultimate goal was promote
business by making uniform the laws associated therewith whether
dealing locally or across the country. See N. J . S • A. 12A: 102 .
The Defendant herein does not speak of the U.C.C., however, as a
33
whole. All references to same are from Title 9 (security
interests) which is embodied in N.J.S.A. 12A:9-101 et seq.
As stated above, there are- no competing claimants with
respect to the subject debt; nor does the Defendant claim credit
for payments made on the claim prior to her receipt of notice of
the transfer. Nor is the transfer of the Defendant's account
subject to the provisions of Title 2 (sale of goods) or Title 3
(negotiable instruments) of the Uniform Commercial Code. The
subject credit card account is neither "goods" (N.J.S.A. 12A:2-
105(1)) nor a "negotiable instrument". (N.J.S.A. 12A:3-104).
While Defendant does contend that the provisions of U.C.C. Title
9 (security interests) (N.J.S.A. 12A:9-101 et seq.) apply,
without concession by Plaintiff as to the correctness thereof,
such is irrelevant as no claims of, or relating to, a security
interest are raised herein.
Defendant misstates the effect of N. J. S .A. 12A: 9-406 (a) .
According to her, same holds that an obligor "has no obligation
to pay the assignee until receipt of notic~". (DB-22) The
error is subtle in that that the statute does not speak of the
obligor's obligation but, rather, that he/she shall be held
harmless for any payments made before notice. This issue has
been discussed at length elsewhere herein. See Russell, supra,
and In re Rosen, supra, and Moorestown Trust, supra.
34
Defendant's interpretative argument is inaccurate and without
merit.
E. NCFSI HAS PROVIDED PRIMA FACIE PROOF OF ITS
OWNERSHIP VIA ASSIGNMENT.
As set forth above, it has long been the law of this State
that proof of ownership sufficient to prevail on a claim may be
presented solely by testimony alone. Indeed, the testimony of an
individual as to a claim of right to property is competent proof
of such fact. See WaIn, supra, Lubinsky, supra, and Moran,
supra.
The uncontroverted certifications of Mr. Galic, Plaintiff's
Business Development Manager, clearly reference the assignment,
attach a copy of the bill of sale appurtenant thereto, and
specifically identify the Defendant's account as one of the
accounts having been so transferred. See DA-44a, par. 1 and 2,
and DA-87a, par. 2 and 3 and the attachments thereto DA-91
through DA-96.
While not necessary under our decisional law as set forth
above, the "chain" of title was likewise provided to the motion
court at pages DA-49 through DA-54a. The transfer was from MHC
Receivables, LLC to Sherman Originator LLC on November 17, 2008
who then immediately, as noted on DA-52a, transferred same to
LVNV Finding LLC. LVNV Funding LLC then sold same on November
35
Q
30, 2911 to Sherman Acquisition L.L.C., which on said same date
and by separate document, DA-54a, assigned the debt to Plaintiff
herein.
There are no documents from Credit One in the chain because
the account was not owned by Credit" one. As expressed in the
Certification of Mr. Galic in opposition to the reconsideration
motion filed by the Defendant, DA-87, at par. 8, the account was
owned during its active life by MHC Receivables. Annexed
thereto is a certification of one Jon C. Mazzoli dated May 6,
2009 wherein he details the relationship between MHC
Receivables, L.L.C. and Credit One Bank f/k/a the First National
Bank of Marin, with respect to credit cards' accounts. The
accounts are originated by Credit One and then sold, while live,
to MHC Receivables, Inc. Credit One Bank acted thereafter only
as the account servicer.
Here, again, there is no factual controversy presented by
the Defendant as to the information contained in either of the
certifications of Mr. Galic or the certification of Mr. Mazzoli.
In the absence of a genuine issue of material fact presented,
Plaintiff has established its ownership by competent evidence
and the grant of summary judgment was entirely appropriate.
36
POINT II -PLAINTIFF'S PROOFS SATISFIED THE REQUIREMENTS OF COLVELL AND OTHERWISE ESTABLISHED DEFENDANT'S OBLIGATION TO PLAINTIFF, AS ASSIGNEE.
Defendant argues that Plaintiff failed to prove each and
every element of a breach of contract claim, i. e. acceptance,
consideration, breach and causally related damages. (DB-24)
Same fails to account for applicable law regarding proofs in
credit card cases and her own multiple failures to raise any
bona fide or otherwise genuine issue of material fact.
A credit card account is not a contract in the traditional
sense. It is not a contract for services. It is an agreement
between parties whereby the account holder agrees to reimburse
the card issuer for payments made on his or an authorized users
behalf. Novack v . Cities Service Oil Co., 149 N. J. Super. 542
(Law Div 1977) aff'd 159 N.J. Super. 400 (App Div 1978), certif.
den. 78 N.J. 396 (1978). There the Court held that "[t]he
issuance of a credit card is but an offer to extend a line of
open account credit. It is unilateral and supported by no
consideration. The offer may be withdrawn at any time, without
prior notice, for any reason or, indeed, for no reason at all,
and its withdrawal breaches no duty -- for there is no duty to
continue it -- and violates no rights. Acceptance or use of the
card by the offeree makes a contract between the parties
37
according to its terms ... " Id. , at 548
omi tted) .
(internal citations
Thus, each use of the credit card creates the contract. The
agreement as to the terms of the purchase is made between the
account holder and the merchant. The agreement between the card
holder and the card issuer is that the card issuer will pay for
authorized charges which are thereafter set forth in the
periodic account billing statements.
Consumers have the right to dispute any entry on their
billing statements which they believe was made in error within
sixty days following their receipt of each statement. See 15
u.s.c. §1666(a) and 12 CFR § 226.13 (Regulation Z). As discussed
below, a card holder who over time does not dispute a charge may
be deemed to have authorized the charges or otherwise be barred
from alleging that the charge is unauthorized.
Here, the final periodic account billing statement as
produced in support of the summary judgment motion and in
opposition to Defendant's reconsideration motion (DA-56a and DA-
102a) evidences Defendant's responsibility on the account. As of
~10/4/08" the ~Statement Closing Date", the Defendant owed
~$723.82". Same also reflects that the account is ~Past Due"
for "$159.00" and that the Defendant was "Over [Her] Credit
Line" by ~$423.82". Same included the legend:
38
YOUR ACCOUNT IS SCHEDULED TO BE CHARGED OFF THE BALANCE WILL BE DUE IN FULL. CALL (888) 729-6274 YOUR ACCOUNT IS CURRENTLY CLOSED.
As reflected thereon, Defendant did not dispute any charge,
credit, or balance shown. Neither did she raise any dispute in
her Answer to the instant Complaint (DA-2a), or in her answers
to Plaintiff's interrogatories ( DA - 60 a, 61 a) , or in her
certification (DA-64a) opposing the Plaintiff's application for
summary judgment or her reconsideration motion. Her evasive
interrogatory responses reveal her wish to avoid legitimate
factual inquiry. While the Defendant appeared pro-se up to the
grant of judgment, she was represented by counsel in her
reconsideration motion. It is remarkable that even then she
attached nothing that might conceivably give rise to a genuine
issue of material fact. This, the motion court duly noted.
(T33-22 through T34-3) .
Defendant cites this Court's recent decision in LVNV
Funding, L.L.C. v. Colvell, 421 N.J. Super. 1 (App. Div. 2011)
which held that the requirements on ~. 6: 6-3 (a) are a guide to
determine the sufficiency of proofs adduced in support of a
summary judgment motion. Defendant argues that the motion judge
erred by entering judgment without a showing of all transactions
and credits. (DB-24) .
Defendant's interpretation of Col veIl supra, is that all
39
transactions and credits on the account need to be submitted.
Same is not what R. 6:6-3(a) requires. To the extent that
Colvell, supra, either so states or is so interpreted, Plaintiff
requests that this Court clarify that the "all transactions"
language of the opinion be re-expressed with the addition of the
conditional phrase "if any", consistent with the express
language of the rule.
In Col veIl, supra, the trial court granted the creditor's
motion for summary judgment. The creditor's motion relied upon
a computer-generated report. The Appellate Division reversed
the motion court because in support of its motion for summary
judgment, LVNV Funding, LLC relied solely on a scant computer
generated report (dubbed incredible) which it found
insufficient. In making that determination, this Court expressly
relied on a portion of R. 6:6-3 (a) that provides:
If plaintiff's records are maintained electronically and the claim is founded on an open-end credit plan as defined in 15 U.S.C. § 1602(i) and 12 C.F.R. §
226.2(a) (2), a copy of the periodic statement for the last billing cycle as ,prescribed by U.S.C. § 1637(b) and 12 C.F.R. § 226.7, or a computer-generated report setting forth the previous balance, identification of transactions and credits, if any, periodic rates, balance on which the finance charge is computed, the amount of the finance charge, the annual percentage
40
R.
rate, other charges, if any, the closing date of the billing cycle, and the new balance, if attached to the affidavit, shall be sufficient to support the entry of judgment. (underlining added).
6:6-3(a) thus provides two separate and distinct
mechanisms for obtaining a default judgment. The first clause of
the rule allows the creditor to rely on the periodic statement
for the last billing cycle. In the absence of that statement,
the second clause allows the creditor to rely on a computer-
generated report that sets forth the required information.
Here, Plaintiff fully complied with the requirements of R.
6:6-3(a) :
- The debt was for a sum certain;
- The defendant was not a minor/mentally handicapped
person;
The date of breach is as set forth in the
Plaintiff's certification of proof (DA-46a); and
- The claim is evidenced by entries on the Defendant's
last billing statement (DA-56a, DA-102a).
Pursuant to federal law, the original issuer of a credit
card account is required to charge-off an account no later than
the end of the calendar month in which the account becomes more
than 180 days past due. See e.g. 65 Fed. Reg. 36903, at p. 4.
41
(PA-1a,4a) The last payment on the subject account was made on
March 2, 2008. (DA-46a). The failure to make payments caused
charge-off six months later and its use proscribed. (DA-46a)
(DA-S6a, DA-102a). Her failure to make the required payments is
also noted on her credit report wherein the payment delinquency
of 180 days is noted.
~. 6:6-3(a) does not require evidence of all transactions.
Such rule was amended effective September 1, 1992 to provide
significant deference to the periodic statement for the last
billing cycle (hereinafter "last billing statement"). R. 6: 6-
3 (a) provides that the inclusion of the last billing statement
or a computer-generated report "shall be sufficient to support
the entry of judgment". As per the 1992 Report of the Supreme
Court Committee on Special Civil Part Practice
Committee") (PA-8a), pages 34-35 (PA-11a, 12a):
[A] logical inference can be drawn from a consumer's failure to assert a billing error that the new balance set forth in the periodic statement is true and correct. Accordingly, the Committee believes that it should be sufficient proof for entry of default judgment, in suits on credit accounts subject to the Truth in Lending Act, if the plaintiff attaches to the affidavit a copy of the periodic statement for the last billing cycle ....
("1992
Plaintiff maintains that the last billing statement (DA-Sa
and Da-102a) is effective and entitled to such special deference
42
either with or without transactions. This view is further
supported by the 2004 Report of the Supreme Court Committee on
Special Civil Part Practice ("2004 Committee") (PA-13a) at page
37 thereof (PA-14a) which states:
Some judges have interpreted this language to mean that the [computer-generated] report must contain data for all of the items required by federal law to be in the periodic statement. In fact, it is usually the case that the periodic statement for the last billing cycle will not contain many of the items because there were no transactions and credits, periodic rates or finance charges during the last billing cycle on an account that has been charged off. (underlining in original) .
That there were no payment or purchase transactions on the
last billing statement is of no consequence to its significance
under the rule. In fact, it is quite naturally to be expected
that within the last few months before charge-off that the card
will not be utilized. See acc Bulletin 2000-20 dated June 20,
2000 (www.occ.treas.gov/news-issuances/bulletins/2000/b ulletin-
2000-20.html) (adopting regulation that generally requires open-
ended credit accounts to be charged-off after 180 days of
delinquency) . This in fact was the operative finding by the
2004 Committee. The last billing statement reflects the balance
due after the parties thereto had full opportunity to challenge
the charges and resolve any disputes. See 12 C.F.R. §226.13
43
that provides the procedure and 60 day limitation period for a
consumer to assert a billing error. For such reason, the 1992
Committee accorded same the "logical inference" of accuracy.
Defendant concedes that the Plaintiff has submitted a
billing statement. (DB-24) . That statement (DA-56a and DA-
102a) is the periodic statement for the last billing cycle and
was annexed as an attachment to both certifications of Mr.
Galic, who noted that same was received from Sherman i.e. its
assignor. (DA-88a, par. 8,9) . Defendant objects to the
admission of Plaintiff's documents and even its certifications
as hearsay and therefore inadmissible under N.J.R.E. 803(c) (6).
Without conceding the point, this argument wholly ignores other
applicable rules of evidence, specifically N. J. R. E. 101 (a) (4) .
Given the absence of any bona fide dispute as to Plaintiff's
claim or the foregoing documents, same were admissible and
properly reviewed by the motion judge. Such rule provides:
"Undisputed facts. If there is no bona fide dispute between the parties as to a relevant fact... [i] n civil proceedings the judge may also permit that fact to be proved by any relevant evidence, and exclusionary rules shall not apply, except Rule 403 or a valid claim of privilege."
For example, Defendant has not alleged any facts sufficient
to create a bona fide dispute as to the Plaintiff's ownership or
any other detail regarding the account, including the said
billing statements, or the Bill of Sale and Assignment (DA-91a).
44
As to each, there was no bona fide dispute. As to each,
N.J.R.E. 101{a) (4) applied, the effect of which is to allow
proof thereof without the application of N.J.R.E. 803{c} (6).
Therefore, under N.J.R.E. 101{a} (4) same are properly before and
reviewable by the Court as evidence in its discretion.
Here also, Plaintiff supplied Defendant's credit report
entry pertaining to the subject account {DA-80a} as an
attachment to the Lang Cert., par. 3, (DA-74a) again without
substantive challenge. Such corroborates the delinquency
("DELINQ 180"), closing ("CHARGOFF"), the last payment date ("3-
08"), the final balance due ("$723-C") and sale of the account
("SOLD TO ANOTHER LENDER") and the trustworthiness of the last
billing statement.
Finally, Defendant's own evasive and incomplete responses
to Plaintiff's interrogatories (DA-60a,DA-61a) must be
considered as either her admission of the substantive merits of
Plaintiff's claims, or as her inability to interpose either a
factual or legal defense. Even without recourse to the said
evidence rule's provisions, Defendant's failure to fairly
address the Plaintiff's interrogatories clearly evince her
culpability.
The principle [of an admission by silence or evasive response] has long been recognized in New Jersey in both civil and criminal actions. [ci tations omitted] .... And it must always be remembered that the statement 'is
45
not offered as evidence of the truth of its assertions, but merely as giving meaning to the Defendant's silence or evasive response' . [citation omitted].
Greenberg v. Stanley, 30 N.J. 485,497-498 (1959)
See also Interchemical Co. v. Uncas Printing & Finishing Co., 38
N.J. Super. 318, 328 (App. Div. 1956) wherein it was stated:
2 Wigmore on Evidence (3d ed. 1940), § 285, p. 162, speaks of the propriety of inferring that the failure of a party to produce evidence when an opponent contends that its production would elucidate certain facts, is an indication that the facts so exposed would be unfavorable. The rule not only has the force of logic behind it, but is buttressed by the fact that "no one who withholds evidence can be in any sense a fit obj ect of clemency or protection." Ibid., §
291, p. 186. Wigmore goes on to say that the failure to make discovery out of court gives rise to an even stronger inference. Here, as already noted, defendant not only produced no evidence at the hearing on the question of damages, but also failed to answer specific interrogatories that called for information on the basis of which such damages could be calculated with utmost particularity.
As noted by the motion judge at T34-5 through 11,
Plaintiff's proofs need not ~be overwhelming convincing or
overwhelming persuasive". It has long been the law in this
46
state that proof need not be "conclusive". A document is
admissible if the proponent makes a prima facie showing that the
document is genuine and authentic. In re: Blau's Estate, 4 N.J.
Super. 343, 351 (App. Div. 1949). The law has not changed in the
63 years since Blau' s Estate was decided. See e. g. Konop v.
Rosen, 425 N.J. Super. 391, 411 (App. Div. 2012). To the
contrary, that sound precept is embodied in N.J.R.E. 901. Same
provides:
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.
As applied here, the documentary evidence in the form of
the monthly billing statement, though subject to Defendant's
opportunity to have submitted proofs to demonstrate any errors
contained therein, was properly admissible.
Per Colvell, supra, Plaintiff has established its prima
facie claim sufficient to support the entry of judgment in its
favor.
47
POINT III - IN THE INSTANT SMALL CLAIMS ACTION, PLAINTIFF'S PROOFS WERE ADMISSIBLE AND AMPLY BORE ITS BURDEN TO SUPPORT ITS MOTION FOR SUMMARY JUDGMENT AND/OR OPPOSE DEFENDANT'S RECONSIDERATION MOTION.
Defendant's arguments in this point repeat substantially
her prior arguments vis-a-vis her objections to the Plaintiff's
submissions in support of its summary judgment motion. This
point only expands the objection by including references to the
reconsideration motion. The instant matter was filed in the
Special Civil Part and, being under the amount of $3,000.00, was
within the jurisdiction at limit of the Small Claims section.
Same significantly impacts every argument raised by the
Defendant as to the impropriety of Plaintiff's proofs as
hearsay.
The rules of evidence may be relaxed "to admi t relevant and trustworthy evidence in the interest of justice" in actions within the cognizance of the Small Claims Section of the Special Civil Part. N.J.R.E. 101 (a) (2) (A). Hence, the fact that hearsay evidence is proffered does not automatically require its exclusion. The test is relevance and trustworthiness.
Penbara v. Straczynki, 347 N.J. Super. 155, 163 (App. Div. 2012)
48
A. DESPITE HAVING MOVED THE MOTION COURT FOR
RECONSIDERATION, THE DEFENDANT RAISES FOR THE FIRST TIME
ON APPEAL ITS FAILURE TO MAKE SPECIFIC FINDINGS OF FACT
AND/OR EVIDENTIARY RULINGS.
Additionally, and to the extent that the Defendant now
alleges, as an independent ground of error, that the motion
court erred in not issuing specific findings vis-a-vis Her
Honor's evidence rulings, such was not a point raised by the
Defendant in her reconsideration motion. "There is nothing in
the record even to hint that this argument was raised at either
the pretrial conference or the trial and, this being so, the
defendant should not be permitted to raise it on appeal." State
ex reI. Wm. Eckelmann, Inc. v. Jones, 4 N. J. 207, 214 (N. J.
1950) . Despite having the opportunity to do so in her
reconsideration motion or during oral argument thereon, and with
benefit of competent counsel, the Defendant now seeks to entrap
the motion court with this issue which was never raised before
it. Defendant was well aware that she was in the Small Claims
section and the rules attendant thereto. (T36-20 through 22).
With no proffer of any facts in dispute, the wholesale evasion
of reasonable response to discovery, and the failure to put the
court on notice of this issue, this is not how matters are
fairly litigated at either the trial level or on appeal.
The court below, however, did announce its findings as
expressed in the transcript of the July 27, 2012 hearing. Judge
49
Royster ruled that notice was not an element necessary to
establish a valid assignment. (T27-3, 4) . That a Plaintiff is
competent to set forth a prima facie claim of ownership of an
intangible by his/her/its testimony alone. (T35-3 through 13),
(T36-13 through 16). The documents submitted showed that
Plaintiff was entitled to the entry of summary judgment and that
the Defendant raised no issue or fact or presented no document
that might warrant a change in the motion court's position.
(T41-23 through T43-12). Those findings were made are
sufficient to satisfy the requirements of R. 1:7-4.
B. IN MATTERS COGNIZABLE IN THE SMALL C~MS SECTION OF THE SPECIAL CIVIL PART, THE EXCLUSIONARY RULES DO NOT APPLY.
To suggest that a judge sitting on a matter cognizable in
the Small Claims Section cannot consider ·evidence that may
constitute hearsay is simply incorrect. This is so whether the
action is brought as a small claims matter or filed within the
Special Civil Part as N.J.R.E. 101(a) expressly provides at:
(2) Court proceedings; relaxation. --These rules of evidence shall apply in all proceedings, civil or criminal, conducted by or under the supervision of a court. Except as provided by paragraph (a) (1) of this rule, these rules may be relaxed in the following instances to admit relevant and trustworthy evidence in the interest of justice:
50
(A) actions within the cognizance of the Small Claims Section of the Special Civil Part of the Superior Court, Law Division, and the Small Claims Division of the Tax Court whether or not the action was instituted in a Small Claims Section or Division.
As stated in various places above, and in addition to the
application of N.J.R.E. 101(a) (2) (A), N.J.R.E. 101 (a) (4)
provides that the failure of the Defendant to raise a bona fide
dispute as to any fact alleged by Plaintiff allowed to be
reviewed by the motion court without regard to the exclusionary
rules. While not conceding that the materials presented
objectionable hearsay, the issue is mooted by our rules of
evidence. This is especially so in light of the Defendant's
purposeful failures to fairly address Plaintiff's discovery
requests in the form of three simple interrogatories.
c. PLAINTIFF'S SUMMARY JUDGMENT SUBMISSIONS WERE ADMISSIBLE
AND ESTABLISH ITS PRIMA FACIE RIGHT TO THE ENTRY OF
SUMMARY JUDGMENT IN ITS FAVOR.
In support of its application" for summary judgment,
Plaintiff submitted the Certification of its Business
Development Manager. (DA-44a) In paragraph 1 thereof he advised
that Plaintiff is the present owner of the subject account which
it purchased. He was competent to testify on its behalf as to
51
its affairs based on either his personal knowledge or his
personal review of its books and records. This he advised in
paragraph 2 thereof. As stated above, the owner of personalty
is competent to testify as to the property it owns and establish
it ownership . Additionally, Mr. Galic provides a copy of the
electronically transmitted information that Plaintiff received
from its assignor about the purchased account. Same is attached
thereto (DA-46a) which provides pertinent details of the account
such as the account holder, the charge-off date, and the charge
off balance. Certainly he can testify as to this information as
it is what NCFSI bought. Also annexed to his said certification
are Exhibits A (DA-49a through 54a) the entire chain of title
and B (DA-56a) which he identifies as true copies of the
originals in his paragraph 6. DA-54a . is the "BILL OF SALE AND
ASSIGNMENT" evidencing Plaintiff's purchase of the subject
account. There is no doubt that Mr. Galic is competent to
introduce this document as part of its books and records. DA-
56a is the periodic statement for the last billing cycle with
respect to the subject account.
Same are relevant and trustworthy as required by N. J. R. E.
101 (a) (2) (A) and (4). The information provided thereon is
corroborated by that supplied at the time of purchase as shown
on DA-46 (a), the "ELECTRONICALLY TRANSMITTED INFORMATION FROM
52
SELLER" vis-a -vis Defendant's address, account number, charge-
off date and amount, $723.82.
Mr. Galic is also competent to show the materials it
received coincident with the sale to show that the account that
it purchased was owned at the time thereof by the seller,
Sherman Acquisition. See DA-49a through DA-53a, the underlying
chain of title.
D. THE MATERIALS SUBMITTED BY PLAINTIFF IN CONNECTION WITH DEFENDANT'S RECONSIDERATION MOTION WERE ADMiSSIBLE AND PROPERLY CONSIDERED BY THE MOTION JUDGE.
Contrary to Defendant's position at 08-39, Judge Royster
had the discretion to receive new materials submitted in
connection with a motion seeking reconsideration. Such was the
holding in the cases cited by the Defendant, namely, Cummings v.
Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) and Capital
Finance Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J.
Super. 299, 310 (App Div. 2008). Moreover, in such cases , it
was the denied movant that sought reconsideration and who sought
to supplement the record. That is not the case here where
Plaintiff's motion was granted.
Moreover, as expressed by Plaintiff's counsel during
argument, because the summary judgment was entered one day after
the filing of the Defendant's opposition, Plaintiff did not have
53
•
the opportunity to have replied thereto. Such reply is as
allowed by ~. 1: 6-3 which is made applicable to Special Civil
Part practice by ~. 6:3-3(a). Its reply would have consisted of
the materials submitted in opposition to the reconsideration
motion. See T28-14 through T30-25 and DA-3a and DA-64a. In a
situation such as this, where Plaintiff had been inadvertently
denied the opportunity to reply to the Defendant's opposition,
the practical effect of the reconsideration motion was to allow
it to supply that which would have supplied. That a court may
sanction such kismet is advanced by the Hon. William A. Dreier,
P. J .A. D. [now retired] in Alba v. Sopher, 296 N. J. Super. 501,
503-504 (App. Div. 1997). The effect of the reconsideration was
to allow the motion judge to revisit the proofs and conclude
upon a review of all materials submitted that the grant of
judgment was proper based on all materials provided.
The supplemental- materials include Mr. Galic's
certification recounting his personal participation in the
purchase of the subject account as well as formally identifying
the relevant bill of sale (DA-91a through DA-96a). (DA-87a,
pars. 2 and 3). Same also explains the interrelationships by
and between the various entities referenced in the chain of
title documents, DA-49a through DA-53a) and a previously
executed affidavit stating that after origination, while the
account was live, Credit One Bank transferred ownership to MHC
54
Receivables, LLC, retaining only the servicing obligations.
(DA-I00a) Though Plaintiff's position is that its certification
alone as to ownership is competent to same, Mr. Mazzoli' s May
16, 1009 affidavit explains why there was no bill of sale out of
Credi t One Bank. Finally, Mr. Galic identifies that Plaintiff
received the periodic statement for the last billing cycle (DA-
56a and DA-102a) from its assignor. (DA-88a, par. 10).
Also provided was the Certification of Plaintiff's counsel
(DA-74a) to which is the Defendant's credit report entries about
the subject account (DA-77a) dated "1-10-08" i. e. pre-default,
and the credit report entry about the subject account (DA-80a)
dated October 20, 2009, i.e. post-default. The information
thereon corroborates the information contained in both the
periodic statement for the last billing cycle (DA-102a) and the
information concerning the debt as acquired by Plaintiff. (DA-
56a and DA-92a through 96a). There was no shortage of
competent, relevant evidence.
E. THE RECORD SUPPORTS THE GRANT OF SUMMARY JUDGMENT AND THE
DENIAL OF THE RECONSIDERATION AS DEFENDANT REQUESTED.
All said materials as originally supplied and/or as
supplemented in reply on reconsideration were sufficient basis
for the entry of judgment in Plaintiff's favor.
55
POINT IV - [NOT RAISED] DEFENDANT'S POINT IV MUST BE DISREGARDED A) AS NOT RAISED BELOW, AND B) SEEKING THIS COURT'S ADVISORY OPINION.
Defendant cites LVNV Funding L.L.C. v. Colvell, 421 N.J.
Super. 1 (App. Div. 2011), as the Court's foray into the
sufficiency of proofs in debt-buyer cases. As discussed above,
unlike the proofs submitted herein, the record in Colvell was
scant, did not contain the last billing statement issued on the
account, and non-conforming to the proofs required under R. 6:6-
3 (a) • Defendant argues the need for appellate authority
concerning assigned debt cases. This point, however, was
neither raised below nor was same identified in Defendant's
Notice of Appeal. ( DA - 3 a , 4 a) . Such point should therefore be
precluded from review. .See Leang v. Jersey City Board of
Education, 399 N.J. Super. 329, 379-380 (App. Div. certif.
granted 196 N.J. 87 (2008)). See also State v. Bendix, 396 N.J.
Super. 91, 95 (App. Div. 2007).
Exceptions thereto are based on the jurisdiction of the
trial court or m~tters "of great public importance". See Nieder
v. Royal Indemnity Ins. Co., 62 N.J. 229 (1973). Here, the
evidentiary record as was before the motion judge was entirely
one-sided and complete. To ask this Court to issue an opinion
ostensibly outside of the record disturbs the appellate function
and solicits an advisory opinion. Her plea is objectionable as
56
disingenuous and insulting to Plaintiff about whom she refers as
a "junk-debt buyer", i.e. a terms designed to characterize both
Plaintiff and its claim as unsavory.
Here, Defendant offered no proofs. If she seriously sought
to do anything but not pay Plaintiff's legitimate debt then
perhaps she might have answered Plaintiff's interrogatories
directly, without dodging, or offered to the motion court her
certification of fact setting forth a defense. See New Century
Financial Services, Inc. v. Dunn, 2009 N.J. Super. Unpub. LEXIS
1365 (App. Div. 2009). (PA-17a) Her castigation of Plaintiff is
purposed to distract from her failure to meaningfully defend.
Reviewing courts must not "function in the abstract" as
Defendant requests. Grand Union Co. v. Sills, 43 N.J. 390, 410
(1964). What Defendant seeks is an advisory opinion from which
this Court should refrain. See In Re Requests to Judges in
Chancery for Advisory Opinions, 101 N.J.Eq. 9 (Ch. Div. 1927).
In the matter of the Xanadu Project at the Meadowlands Complex,
Application of Benihana Meadowlands Corporation for a Special
Concessionaire Permit, 415 N.J. Super. 179 (App. Div. 2010).
The "'appellate function is a limited one: we do not
disturb the factual findings and legal conclusions of the trial
judge unless we are convinced that they are so manifestly
unsupported. by or inconsistent with the competent, relevant and
reasonably credible evidence as to offend the interests of
57
justice,' Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154,
155 (App. Div. 1963) " Rova Farms Resort, Inc. v. Investors
Ins. Co., 65 N.J. 474, 484 (1974). The competence, relevance
and credibility of Plaintiff's proofs and the motion judge's
findings are discussed above. . See also MRC Receivables
Corporation v. Gottesman, 2007 N.J. Super. Unpub. LEXIS 965
(App. Div. 2007) (PA-15a) with regard to a reviewing court's
ability to infer the motion court's findings and conclusions
based on the entry of summary judgment. The motion court was
relying on Plaintiff's proofs. Allstate Ins., supra at p. 301.
In the following pages, Plaintiff will address cases raised
by Defendant. Defendant cites AT&T Mobility LLC v. Concepcion,
--- u.S. ,131 S.Ct. 1740 (2011) as part of his proposition
that proof of ownership requires proof of "the chain of
assignment" (DB-8-21, 22) . A review of this opinion concerning
class-action waivers in the consumers' arbitration agreements
reveals no such discussion.
Defendant follows with three foreign federal district court
opinions on the chain-of-title issue beginning with a case only
referred to as "Webb" at DB-50. This is believed to refer to
Webb v. Midland Credit Management, Inc. ("Midland"), 2012
U.S.Dist. LEXIS 80006 (N.D. Ill., E.D., May 31, 2012). Same
discusses the availability of arbitration to a debt-buyer as
assignee under Webb's agreement with the original creditor,
58
Citibank. The court held that Midland's proofs, in affidavit or
declaration form with attachments, were insufficient to
demonstrate an "unbroken chain of assignment". (Id., p. 16).
That decision is, however, not relevant to the instant
matter where neither party seeks enforcement of an arbitration
clause. More importantly, the decision is at odds with
decisions rendered by other judges of the Eastern Division of
the Northern District of Illinois. See Krawczyk v. Centurion
Capital Corporation, et al., 2009 U.S.Dist. LEXIS 12204 (N.D.
Ill., E.D. 2009) wherein the court held that the certifications
of various assignees as to the assignments and account details
were admissible as' exceptions to the hearsay rule. Id., p. 11-
18.
As recognized by the Massachusetts Supreme Judicial Court in Beal Bank, SSB v. Eurich, " [t] he problem of proving a debt that has been assigned several times is of great importance to mortgage lenders and financial institutions." 444 Mass. 813 [West citation omitted] (Mass. 2005) [citation omitted]. Given the common practice of financial institutions buying and selling loans, the court in Baal determined that it is normal business practice to maintain accurate business records regarding such loans and to provide them to those acquiring the loan ....
Although Kavanaugh did not author the record in question, the business record exception does not impose any such requirement. [citation omitted] Kavanaugh's affidavit, testifying to the records that Centurion received from Capital One, is reliable and can be relied upon in support of summary
59
judgment. And for the same reasons, the affidavi t of Peter Fish is deemed reliable and also can be used in support of Defendant's motion for summary judgment. Id., p. 16.
The second (of three) foreign decisions cited by Defendant
is Hengeller v. Brumbaugh & Quandahl, P.C., LLO, 2012 U.S.Dist.
LEXIS 131125 (D.Neb. 9/12/12). Hengeller, however, again dealt
with the ability of the purported assignee to compel arbitration
according to the terms of a cardmember agreement. In its
denial, without prejudice and pending further discovery, the
u.s. District Court of Nebraska found the debt-buyer's proofs as
to the actual terms of the agreement lacking foundation and
especially in the face of "Hengeller's evidence that she did not
live at the address [to where the cardmember agreement was
mailed] and did not recei ve the [monthly credi t card]
statements." Id., p. 18. This widely different fact pattern
must be noted. In Hengeller, the defendant certified to non-
receipt as well as non-use of the credit card. Here, Defendant
makes no such statements either about the card as his or the
balance as claimed. See Defendant's Certification in opposition
to the motion for summary judgment. ( DA - 45 a, 4 9 a) .
As his third (of three) foreign federal decisions Defendant
cites Matute v. Main Street Acquisitions Corp., 2012 U.S.Dist.
LEXIS 142589 (S.D. Fl. 10/2/12). Again, the issue is whether or
60
not the debt-buyer can compel arbitration in accordance with a
contested cardmember agreement. In Matute, the court was
persuaded by the decision in Webb, supra, and denied the motion
to compel arbitration under the Federal Arbitration Act. In so
doing, it noted that the debt-buyer's proof was limited to its
declaration of ownership and "no sales documentation regarding
[the credit card] account to [the debt-buyer] or any sales or
acquisition information tracing the sale [from the original
creditors] ." Id., p. 6, 7. Such was a matter to be decided
under either federal or state law. See fn 6 of Arthur Anderson
LLP v. Carlisle, 556 u.S. 624, 129 S.Ct. 1896, 1902 (2009).
There is no indication that New Jersey law was utilized in the
Matute Court's decision. Here again a disparate factual pattern
exists. Moreover, while in her brief Defendant raises
generalized concern over illegitimate claims (DB-52, 53), she
refrained from any factual allegation whatsoever.
Defendant turns to two unpublished Appellate Division
opinions to discuss proofs in assigned debt cases. In Cavalry
Portfolio, LLC v. Kumbaris, 2011 N.J. Super. Unpub. LEXIS 2965
(App. Div. 2011) (DA-24a), the Court reversed the dismissal of a
matter during trial because the plaintiff's witness attempted to
introduce the business records of another entity. There is no
correlation to the case at bar, and no mention of whether the
defendant's pleadings raised genuine issues of fact or bona fide
61
dispute.
thereof.
It has no possible persuasive value in the absence
In addition, Defendant identifies Cavalry Portfolio,
LLC v. Sharma, 2011 N.J. Super. Unpub. LEXIS 533 (App. Div.
20 11). ( DA -1 7 a) . Sharma, however, though dealing with appellate
review of a summary judgment entered in an assigned-debt case in
Plaintiff's favor, is not the issues now before this Court. In
Sharma, the defendant denied having credit account being sued
and making some of the charges as shown on the statements that
the plaintiff had provided. Unlike here, N.J.R.E. 101(a) (4)
would therefore have been inapplicable. Additionally, in
neither case is there an indication that same were cognizable
within the jurisdictional limits of the Small Claims section of
the Special Civil Part, i.e. allowing relaxation of the rules of
evidence as noted above.
In closing his Point IV Defendant references a number of·
New York cases and one from Pennsylvania. The New York cases,
each decided under New York procedural and substantive law, bear
the following: NOTICE: THIS OPINION IS UNCORRECTED AND WILL NOT
BE PUBLISHED IN THE PRINTED OFFICIAL REPORTS. See DNS Equity
Group Inc. v. Lavallee, 26 Misc.3d 1228(A) (N.Y.Dist.Ct. 2010)
(summary judgment denied as noted without documentary proof);
Rushmore Recoveries X, L.L.C. v. Skolnick, 15 Misc.3d 1139(A)
(N. Y. Dist. Ct. 2007) (application of business records exception
only to assess movant's summary judgment proofs.) [Note: there
62
is no indication that the rules of evidence applicable to this
New York matter have a provision analogous to N.J.R.E.
101(a) (2) (A) or (4) .]; and LVNV Funding LLC v. Delgado, 24
Misc.3d 1230(A) (N.Y.Dist.Ct. 2009) ("Sewer-Service" of
process) . Same are therefore neither binding nor persuasive.
Moreover, LVNV v. Delgado, involving defective service of
process, has nothing to do with a court's review of submitted
proofs. Similar ly, in Commonwealth Financial Systems, Inc. v.
Smith, 2011 PA. Super. 30 (Superior Court 2011), the Superior
Court of Pennsylvania affirmed the Court of Common Pleas order
at trial denying the debt-buyer's request to admit certain
documents into evidence. In Commonwealth, the Defendant
challenged the lack of "circumstantial trustworthiness" as would
require a certification from the original creditor or
intervening assignee.
Such a requirement exists under that part of Pa.R.E. 803(6)
which states that, "unless the sources of information or other
circumstances indicate lack of trustworthiness". This
essentially paraphrases New Jersey's business records exception,
N. J. R. E. 803 (c) (6) wherein the overarching concern is also one
of trustworthiness. The monthly statement as produced by
Plaintiff (DA-47a, 102a) , however, is trustworthy and
corroborated by the Affidavit of Plaintiff's Business
Development Manager (DA-44a, par. 2, DA-46a), (DA-56a); and (DA-
63
•
87a, 88a, par 9, 10) and the entries in Defendant's credit
report (DA-80a) about the subject account as attached to
Plaintiff's Counsel's certification. (DA-74a, par. 3).
However, N.J.R.E. 101 (a) (4) allows the production of
evidence without regard to the exclusionary rules in civil
matters either by stipulation of the parties or by any means in
the absence of a bona fide dispute. Here, in the absence of any
substantive dispute, and his evasive and incomplete responses to
Plaintiff's discovery, Plaintiff's proofs were properly
available for consideration.
As noted by the motion judge, no bona fide dispute existed.
(T33-22 through T34-T41-3), (T42-24 through T43-12), and (T44-16
through T4S-1S). Commonwealth, supra, is therefore inapplicable.
64
CONCLUSION
For the foregoing reasons, Plaintiff requests that
Defendant's appeal of the order entering summary judgment
against her be dismissed and that this Court affirm the said
order and the motion court's denial of reconsideration. In
addition, to the extent that the Colvell, supra, opinion
requires, or is so interpreted to require, that "all
transactions" be shown in a last billing statement or as part of
a computer generated report, Plaintiff requests that this Court
clarify that the "all transactions" language of that opinion be
re-expressed with the addition of the conditional phrase "if
any", consistent with the express language of the rule.
Finally, to the extent that the Debtor claims that our
system of law is broken, one does not level a playing field by
making one team stand in all of the holes. There are ample
opportunities for litigants to defend their interests should
they so choose. Those concerns are not concerns here where
Defendant did appear. There is no mistake that the account was
hers. There is no mistake that it is due in the amount claimed.
There is no mistake that it is owned by Plaintiff. Nothing here
is broken.
65
Dated: February 1, 2013
Respectfully Submitted,
Pressler and Pressler, L.L.P.
66
o·
APPENDIX
1.65 Fed. Reg. 36,903, Federal Register Vol 65, No. 112 (June 12, 2000) ---------------------------- 1a
2. 1992 Report of the Supreme Court Committee on Special Civil Part Practice, pp. 32-35 ------------- 8a
3. 2004 Report of the Supreme Court Committee on Special Civil Part Practice, p.37-------------------- 13a
4. Unpublished Opinion, MRC Receivables Corporation v. Gottesman, 2007 N.J. Super. Unpub. LEXIS 965 (App. Div. 2007) ----------------------------------- 15a
5. Unpublished Opinion, New Century Financial Services, Inc. v. Dunn, 2009 N.J. Super. Unpub. LEXIS 1365 (App. Div. 2009) ----------------------------------- 17a
67
•
LexisNexis®
FEDERAL REGISTER
Vol. 65, No. 112
Notices
FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
Uniform Retai l Cred it Classification and Account Management Policy
65FR36903
DATE: Monday, June 12,2000
ACTION: Final notice.
To view the next page, type .np* TRANSMIT. To view a specific page, transmit p* and the page number, e.g. p*1
[*36903]
Page I
SUMMARY: The Federal Financial Institutions Examination Council (FFlEC), on behalf of the Board ofGovernors of the Federal Reserve System (FRE), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), and the Office of Thrift Supervision (OTS), collectively referred to as the Agencies, is publishing revisions to the Uniform Retail Credit Classification and Account Management Policy, to clarify certain provisions, especiaUy regarding the re-aging of open-end accounts and extensions, deferrals, renewals, and rewrites of closed-end loans. The National Credit Union Administration (NCUA), also a member ofFFlEC, does not p lan to adopt the Uniform Policy at this time. This Policy is a supervisory policy used by the Agencies for uniforin classification and treatment of retail credit loans in financial institutions.
DATES: Any changes to an institution's policies and procedures as a result of the Uniform Retail Credit Classification and Account Management Policy issued on February 10, 1999, as modified by these revisions, should be implemented for reporting in the December 31, 2000, Call Report or Thrift Financial Report, as appropriate.
FOR FURTHER INFORMATION CONTACT:
FRB: David Adkins, Supervisory Financial Annlyst, (202) 452-5259, or Anna Lee Hewko, Financial Analyst, (202) 530-6260, Division of Banking Supervision and Regulation, Board of Governors of the Federal Reserve System. For the hearing impaired only, Telecommunication Device for the Deaf(TDD), Diane.Jenkins, (202) 452-3544, Board of Govemors of the Federal Reserve System, 20th and C Streets, N.W., Washington, D.C. 20551.
acc: Daniel L. Pearson, National Bank Examiner, (202) 874-5170, Credit Risk Division, or Ron Shimabukuro, Senior Attorney, (202) 874-5090, Legislative and Regulatory Activities Division, Chief Counsel's Office, Office of the Comptroller of tile Currency, 250 E Street, SW., Washington, DC 20219.
P4- /a-
Page 2 65 FR 36903, *
FDIC: James Leitner, Examination Specialist, (202) 898-6790, Division of Supervision, or Michael Phillips, Counsel, (202) 898-3581, Supervision and Legislation Branch, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street, N. W., Washington, D.C. 20429.
OTS: William J. Magrini, Senior Project Manager, (202) 906-5744, Donna M. Deale, Manager, Supervision Policy, (202) 906-7488, Supervision Policy, or Ellen J. Sazzman, Counsel (Banking and Finance), (202) 906-7133, Regulations and Legislation Division, ChiefCoWlSel's Office, Office of Thrift Supervision, 1700 G Street, N.W., Washington, D.C. 20552.
SUPPLEMENTARY INFORMATION:
Background InCormation
On June 30, 1980, the FRB, FDIC, and OCC adopted the Uniform Policy for Classification of Consumer Installment Credit Based on Delinquency Status (1980 policy). The Federal Home Loan Bank Board, the predecessor of the OTS, adopted the 1980 policy in 1987. The 1980 pOlicy established uniform gui,delines for the classification of retail installment credit based on delinquency status and provided charge-off time frames for open-end and closed-end credit
The Agencies undertook a review of the 1980 policy as part of their review of all written policies mandated by Section 303(a) of the Riegle Community Development and Regulatory Improvement Act of 1994. As a result of this review, on February 10, 1999 (64 FR 6655), the Agencies issued the Uniform Retail Credit Classification and Account Management Policy (Uniform Policy). In general, the Uniform Policy:
· Established a charge-offpolicy for open-end credit at 180 days delinquency and closed-end credit at 120 days de-linquency.
• Provided guidance for loans affected by banlauptcy, fraud, and death.
• Established guidelines for re-aging, extending, deferring, or rewriting past due accounts.
· Provided for classification of certain delinquent residential mortgage and home equity loans.
· Provided an alternative method of recognjzj~g partial payments.
As issued on February 10, 1999, the Uniform Policy was effective for manual adjustments to an institution's poli- . cies and procedures as of the June 30, 1999, Call Report or Thrift Financial Report, as appropriate. In addition, the Unifor.m Policy anowed institutions until the December 31, 2000, Reports to make changes ilivolving computer programming resources. In a modification issued on November 23, 1999 (64 FR 65712), the implementation date for manual changes was extended to the December 31, 2000, Reports.
Following the issuance of the Uniform Policy, the Agencies received numerous inquiries for clarifications of the standards contained in the Policy, especially with respect to the re-aging of open-end accounts and extensions,.deferrals, renewals, or rewrites of closed-end loans. In response to these inquiries for clarification, the Agencies have decided to publish this revised Uniform Policy. In addition to various editorial changes, the Agencies have changed the Uniform Policy to clarify various items· in the Uniform. Policy with respect to (1) the re-aging of open-end accounts; (2) extensions, deferrals, renewals, and rewrites of closed-end loans; (3) examiner considerations; and (4) the treatment of spe-cific' categories of retail loans. ..
1. Re-aging of open-end accounts. The'Uniform Policy provided that open-end accounts should not be re-aged more than once within any twelve-month period and no more than twice within any five-year period. The Agencies have decided to clarify the Uniform PoUcy by stating that institutions may adopt a more conservative re-aging standard (e.g., some institutions allow only one re-aging in the lifetime of an open-end account). In addition, this modification ()fthe Uniforin Policy recognizes the importance of formal workout programs and provides guidance on the handling of open-end accounts that enter into this type of program .
. Specifically, the Agencies have modified the Uniform Policy to provide that institutions may re-age an account after it enters a workout program, including internal and third-party debt counseling services, but only after receipt of at least three conSecutive minimum monthly payments or the equivalent cumulative amount Re-aging for workout program purposes is limited to once in a five-year period and is in addition to the once-in-twelve-monthsltwice-in-five-years limitation. The term "re-age" is defmed in the document (in footnote 3) to
Page 3 65 FR 36903, *
mean "returning a delinquent, open-end account to current status without collecting the total ~mount of principal, interest, and fees that are contractually due. II In the Agencies' view, management information systems should track the principal redu~tions and charge-off history of loans in workout programs by type of program. [*36~04]
2. Extensions, deferrals, renewals, and rewrites of closed-end loans. The Agencies have modified the Uniform Policy to provide that institutions should adopt and adhere to explicit standards that control the use of extensions, deferrals, renewals, and rewrites of closed-end loans. Such standards would be based on the borrower's willingness and ability to repay the 10aIl and would limit number and frequency of such treatment of closed-end loans. The Agencies have also defined the terms "extension," "deferral," "renewal," and "rewrite."
This modification of the Uniform Policy states that institutions should adopt standards that prohibit additional advances that finance the unpaid interest and fees. The Agencies have added guidance that comprehensive and effective risk management, reporting, and internal controls be established and maintained to support the collection process and to ensure timely recognition of losses.
3. Examination considerations. The Agencies have added guidance that an examiner may classify retail portfolios, or segments thereot: where underwriting standards are weak and present unreasonable credit risk and may criticize account management practices that are deficient.
Adoption of the Uniform Policy may affect an institution'S timing and measurement of probable loan losses that have been incurred. As a result of changes the Uniform Policy made to the 1980 policy, an ~titution may need to adjust its loan loss allowance to reflect any shortening in its time frame for recording charge-offs. Moreover, a larger allowance may be necessary if an institution's charge-off practices are different than the new guidelines for accounts of deceased persons and accounts of borrowers in bankruptcy. .
4. Treatment 0/ specific categories of retail loans. These modifications to the Uniform Policy clarified the Policy's treatment of various categories of retail loans:
• Regarding retail loans that are due to be charged oct: in lieu of charging off the -entire loan balance, loans with non-real estate collQ.teral may be written down to the value of the collateral, less cost to sell, ifrepossession of collateral
. is assmed and in process .
• -For. open-.andclosed-end loans secured by one-to four-family residential real estate, a current assessment of value should be made no later than 180 days past due, and any outstanding loan balance in excess of the value of the property, less cost to sell, should be charged off. The Agencies removed the condition in the Uniform Policy that such assessment would be required when a residential or home equity loan is 120 days past due .
. Loans in-bankruptcy with collateral may be writtell. down to the value of the collateral, less cost to sell.
As modified, the Uniform Policy now reads as follows:
Uniform Retail Credit Classification and Account Management Policy nl
nl The agencies' classifications used for retail credit are Substandard, Doubtful, and Loss. These are defined as follows: Substandard: An asset classified Substandard is protected inadequately by the current net worth and paying capacity of the obligor, or by the collateral pledged, if any. Assets so classified must have a well-defined weakness or weaknesses that jeopardize the liquidation of the debt They are characterized by the distinct possibility that the institution will sustain some loss if the deficiencies are not corrected. Doubtful: An asset classified Doubtful·has all the weak:nesses inherent in one classified Substandard with the added characteristic that the weaknesses 'make collection or liquidation in full, on the basis of currently existing facts, conditions, and values, highly questionable and improbable. Loss: An asset, or portion thereot: classified Loss is considered uncollectible, and of such little value that its continuance on the books is not warranted. This classification does not mean that the asset has absolutely no recovery or salvage value; rather, it is not practical or desirable to defer writing off an essentially worthless asset (or portion thereof), even though partial recovery may occur in the future.
Although the Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency, and Office of Thrift Supervision do not require institutions to adopt identical classification definitions, institutions should classify their assets using a system that can be easily reconciled with the regulato-ry classification system. .
Page 4 65 FR 36903, *
The Uniform Retail Credit Classification and Account Management Policy establishes standards for the classification and treatment of retail credit in financial institutions. Retail credit consists of open- and closed-end credit extended to individuals for household, family, and other personal expenditures, and includes consumer loans and credit cards. For purposes of this policy, retail credit also includes loans to individuals secured by their personal residence, including first mortgage, home equity, and home improvement loans. Because a retail credit portfolio generally consists of a large number of relatively small-balance loans, evaluating the quality of the retail credit portfolio on a loan-by-Ioan basis is inefficient and burdensome for the institution being examined and for examiners.
Actual credit losses on individual retail credits should be recorded when the institution becomes aware of the loss, but in no case should the charge-off exceed the time frames stated in this policy. This policy does not preclude an institution from adopting a more conservative internal policy. Based on collection experience, when a portfolio's history reflects high losses and low recoveries, more conservative standards are appropriate and necessary.
The quality of retail credit is best indicated by the repayment performance of individual borrowers. Therefore, in gen~ral, retail credit should be classified based on the following criteria:
. Open- and closed-end retail loans past due 90 cumulative days from the contractual due date should be classified Substandard.
. Closed-end retail loans that become past due 120 cumulative days and open-end retail loans that become past due 180 cumulative days from the contractual due date should be classified Loss and charged off: n2 In lieu of charging off the entire loan balance, loans with non-real estate collateral may be written down to the value of the collateral, less cost to. sell, if reposs~sion of collateral is assured and in process.
n2 For operational purposes, whenever a charge-off is necessary under this policy, it should be taken no later than the end of the month in which the applicable time period elapses. Any full payment received after the 120- or 180-day charge-offthreshold, but before month-end charge-off, may be considered in determining whether the charge-offre-mains appropriate~ . .
OTS.regulation 12 CFR 560. 160(b) allows savings institutions to establish adequate (specific) valuation allowances for assets classified Loss in lieu of charge-offs.
-Open-end retail accounts that are placed on a fixed repayment schedule should follow the charge-off time frame for closed-end loans .
. One- to four-family residenti~ real estate loans and hom~ equity loans that are past due 90 days or more with . loan-to-value ratios greater ~ 60 percent should be classified Substandard. Properly secured residential real estate loans with loan-to-value ratios equal to or less than 60 percent are generally not classified based solely on delinquency status. Home equity loans to the same borrower at the same institution as the senior mortgage loan with a. combined loan-to-value ratio equal to or less than 60' pe~nt need not be classified. However, home equity loans where the institution does not hold the senior mortgage, that are past due 90 days or more should be classified Substandard, even if the loan-to-value ratio is equal to, or less than, 60 percent .
For open- and closed-end loans secured by residential real estate, a current assessment of value should be made no later than 180 days past due. Any outstanding loan balance in excess of the value of the property, less cost to sell, should be classified Loss and charged ott
• Loans in banlauptcy should be classified Loss and charged.off within [*36905] 60 days of receipt of notification of filing frOm the bankruptcy court or within the time frames specified in this classification policy, whichever is shorter,. unless the institution can clearly demonstrate and document that repayment is likely to occur. Loans with collateral may be written down to the value of the collateral, less cost to sell. Any loan balance not charged off should be classified Substandard until the borrower re-establishes the ability and willingness to repay for a period of at least six months. .
· Fraudulent loans should be classified Loss and charged offno later than 90 days of discovery or within the time frames adopted in this classification policy, whichever is shorter.
· Loans of deceased persons should be classified Loss and charged off when the loss is detennined or within the time frames adopted in this classification policy, whichever is shorter.
Other Considerations for Classification
D.
Page 5 65 FR 36903, *
If an institution can clearly document that a past due loan is well secured and in the process of collection, suc~ that collection will occur regardless of delinquency status, then the loan need not be classified. A well-secured loan is collateralized by a perfected security interest in, or pledges of, real or personal property, including securities with an estimable value, less cost to sell, sufficient to recover the recorded investment in the loan, as well as a reasonable return on that amount In the process of collection means that either a collection effort or legal action is proceeding and is reasonably expected to result in recovery of the loan balance or its restoration to a current status, generally within the next 90 days.
Partial Payments on Open-and Closed-End Credit
Institutions should use one of two methods to recognize partial payments. A payment equivalent to 90 percent or more of the contractual payment may be considered a full payment in computing past due status. Alternatively, the institution may aggregate payments and give credit for any partial payment received. For example, if a regular installment payment is $ 300 and the borrower makes payments of only $ 150 per month for a six-month period, the loan would be $ 900 ($ 150 shortage times six payments), or three full months past due. An institution may use either or both methods in its portfolio, but may not use both methods simultaneously with a single loan.
Re-Aging,.Extensions, Deferrals, Renewals, and Rewrites 03
n3 These terms are defined as follows. Reage: Returning a delinquent, open-end account to current status without collecting the total amount of principal, interest, and fees that are contractually due. Extension: Extending monthly payments on a closed-end loan and rolling back the maturity by the number of months extended. The account is shown current upon granting the extension. If extension fees are assessed, they should be collected at the time of the extension and not added to the balance of the loan. Deferral: Deferring a contractually due payment on a closed-end loan without affecting the other terms, including maturity, of the loan. The account is shown current upon granting the deferral Renewal: Underwriting a matured, closed-end loan generally at its outstanding principal amount and on similar terms. Rewrite: Underwriting an existing loan by signifi~tly changing its terms, including payment amounts, interest rates, aqlorPz;ation schedules, or its final maturity. .
Re-aging of open-end accounts, and extensions, deferrals, renewaIs,.and rewrites of closed-end loans can be used to help borrowers overcome temporary financial difficulties, such as loss of job, medical emergeney, or change in family circumstances like loss of a family member. A permissive policy on re-agings, extensions, deferrals, -renewals, or re"writes can cloud the true performance and delinquency status of the portfolio. However, prudent use is acceptable when it is based on a renewed willingness and ability to repay the loan, and when it is structured and cantrolled in accordance with sound internal policies.
Management should ensure that comprehensive and effective risk management and internal controls are established . and maintained so that re-ages, extensions, deferrals, renewals, and rewrites can be adequately controlled and monitored
by manage~ent and verified by examiners. The decision to re:-age, extend, defer, renew, or rewrite a lo~ ~e any other modification of contractual terms, should be supported in the institution's management information systems. Adequate management information systems usually identify and docl;lIl1ent any loan that is re-aged, extended, deferred, renewed, or rewritte~ including the number of times such action has been taken. Documentation normally shows that the institution's personnel communicated with the borrower, the borrower agreed to pay the loan in full, and the borrower has the ability to repay the loan. To be effective, management information systems should also monitor and track the volume and performance of.loans that have been re-aged, extended, deferred, renewed, or rewritten and/or placed in a workout program.
Open-End Accounts
Institutions that re-age open-end accounts should establish a reasonable written policy and adhere to it To be con-sidered for re-aging, an account should exhibit the following:
• The borrower has demonstrated a renewed willingness and ability to repay the loan.
· The account has existed for at least nine months.
· The borrower has made at least three consecutive minimum monthly payments or the equivalent cumulative amount Funds may not be advanced by the institution for this purpose.
Page 6 65 FR 36903, *
Open-end accounts should not be re-aged more than once within any twelve-month period and no more than twice within any five-year period. Institutions may adopt a more conservative re-aging standard; for example, some institutions allow only one re-aging in the lifetime of an open-end account. Additionally, an over-limit account may be re-aged at its outstanding balance (including the over-limit balance, interest, and fees), provided that no new credit is extended to the borrower until the balance falls below the predelinquency credit limit.
Institutions may re-age an account after it enters a workout program, including internal and third-party debt counseling services, but only after receipt of at least three consecutive minimum monthly payments or the equivalent cumulative amount, as agreed upon under the workout or debt management program. Re-aging for workout purposes is limited to once in a five-year period and is in addition to the once in twelve-months/twice in five-year limitation described above. To be effective, management information systems should track the principal reductions and charge-off history of loans in workout programs by type of program.
Closed-End Loans
Institutions should adopt and adhere to explicit standards that control the use of extensions, deferrals, renewaJs, and rewrites of closed-end loans. The standards should exhibit the .following:
· The borrower should show a renewed willingness and ability to repay the loan. . .
· The standards should limit the nllmber and frequency of extensions, deferrals, renewals, and rewrites.
· Additional ad~ces to finance unpaid interest and fees should be prohibited.
Management should ensure that comprehensive and effective risk management, reporting, and internal controls m:e established and maintained [*36906] to support the collection process and to ensure timely recognition of losses. To be effective, management information systems should track the subsequent principal reductions and charge-offhistory of loans that have been granted an extension, deferral, renewal, or rewrite .
... Examination Considerations
Examiners should ensure-that.institutions adhere to this pollcy. Nevertheless, there may be instances that warrant exceptions to the generai.classification policy. Loans need not be classified if the institution can document clearly that repayment will o~ irrespective of delinquency status. Examples might include loans well secured by marketable -collateral and in the process of collection, loans for which claims are filed against solvent estates, and loans supported by valid insurance claims.
The Uniform Classification and Account ~gement policy does not preclude examiners from classifying individual retail credit loans that exhibit signs of credit weakness regardless of deliIiquency status. Similarly, an examiner may also classify retail portfolios, or segments thereat; where underwriting standards are weak and present unreasonable credit risk, and may criticize account management practices that are deficient
In addition to reviewing-loan classifications, the examiner should ensure that the institution's allowance fOJ:" loan and lease losses provides adequate_ coverage for probable losses inherent in the portfolio. Sound risk and account management systems, including a prudent retail credit lending policy, measures to ensure and monitor adherence to stated policy, and detailed operating procedures, should also be implemented. Internal controls should be in place to ensure that the policy is followed. Institutions that lack sound policieS or fail to implement or effectively adhere to established policieS will be subject to criticism.
Implementation
This policy should be fully implemented for reporting in the December 31, 2000 Call Report or Thrift Financial R~port, as appropriate.
Dated: June 6, 2000.
Keith J. Todd,
Executive Secretary, Federal Financial Institutions Examination Council.
Page 7 65 FR36903,.*
[FR Doc. 00-14704 Filed 6-9-00; 8:45 am]
BILLING CODE 6210-01-P (25%) 6714-01-P (25%) 6720-01-P (25%) 4810-33-P (25%)
~ .
I. .Proposed Amendment to R. 6:6-3(a)--Entry of Default ..
Judgment by the Clerk and Adeguacy of Proofs Where
Records Are Kept Electronically . .
An item held over for consideration in the 19~O Report of .
the Special Civil Part Practice Committee to the Supreme Court
was the adequacy of proofs for entry of: default judgment under
Rules 6:6-3(a) and 4:43-2(a) where plaintiffs' records are \ \ \
kept electronically by computer. The Committee is aware of
variations' in the type and quantum of proof required' from
county to county for the entry of such default judgments and
the burden that this imposes on multi-county practitioners.
The rules in question'deal with entry of default judgment by
the clerk in actions involving·liquidated damages •
. The Committee proposes an overhaul of R. 6:6-3(a) to
eliminate the confusing reference to g. 4:43-2(a), incorporate
the necessary elements of g. 4:43-2(a) .into B. 6:6-3(a)', and
add a paragraph to deal more clearly with electronic records.
While considering ~he problems posed by electronic records,
the Committee kept in mind the need to promote uniformity of
treatment by the clerks in the various counties and the need
to ensure that default judgments reflect amounts actually due.
The main issues posed by suits on revolving charge accounts
and- bank credit cards are whether the specific items purchased
by the defendant must be shown in the proofs when requesting .
e~try of default j~dgment and how far back in time the proof
-32-
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that records are kept electronically by computers and the
It Committee believes that even if they were available, it would
I I I I I· I I I I I:
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,: l.
" [
be impractical to require .their attachment to the affidavit of
proof. The inconsistencies from county to county stem from
the varying perceptions of the judges and clerks as to the
extent of proof required to· support the entry of a default
judgment. The committee believe~ that these problems can be
resolved by keying the proofs to the federal Truth In Le~dinq
Act.
New Jersey law (N.J.S.A. 17:16C-34.1(b» brings the kind
of credit accounts at issue here within the ambit of the Truth . .
In Lending ~~t. The c~edit accounts, such as a Sears charge·
or Master Card, are defined as "open end credit plans" by the
Aot and by the implementing regulations, commonly known as
Regulat!on Z, adopted by the Board of Governors of the Federal
Rese~ve system. See 15 U.S.C.A. 51602(1) and 12 C.F.R.
§226.2(a)(20). The Act. and Regulation Z require the creditor
to furnish the consumer, with a periodic ,statement for ea«h
billing cy~le. 15 U.S.C.A. §1637(b). and 12 C.F.R. 5226.7. In
reviewinq 12 C.F.R.§226.7 the committee noted the extent of
the .information required and that subsection (k) requires that
the address for notice of billing errors be placed either on
the periodic statement or on a swmnary statement of the ,
-33-
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mente
The consumer I s ~ights to assert claims and defenses
against the issuer of the credit card and to contest billing
errors are set forth in detail in 12 C.F.R. §226.12(c) and
5226.13, respectively. When the credit account is established
the dredi~or is required by, 12 C.F.R. §226,6·(d) to fUrnish \
the consumer with a detailed statement of those rights, in the
form set forth in the appendix to Regulation Z. The creditor
is also required by 12 C.F.R. 5226.9 to furnish a similar I
statement of rights to the consumer either annually or with
each periodic billing statement. The consumer is advised in
these statements that he or she has 60 days from the receipt
6f a periodic statement containing a billing error to 'give the
creditor notice of the error. The statements and 12 C •. F.R •.
5226.13 set forth the detailed procedures to be followed in
resolving the alleged billing error.
In this rather elaborate regulatory context, a logical
inference can be drawn from a consumer's failure ~o assert a
billing error that the new balance set forth in the periodic
statement 1s true and correct. Accordingly, the Committee
believes that it should be sufficient proof for entrY of
'default judgment, in suits on credit accounts subject to the
Truth In Lending Act, if the plaintiff attaches to the
affidavit a copy of the periodic statement for the last
-34-
P4-//1J-
'I
I· I ~ _______ hlllin~~~co~~-~~!~~~~~tsett~~f~~~~
~ financial information required to be in that statement •
• I I I I
" I I I I I I I I::
I I>
\
The proposed amendments to R. 6:6-3(a) follow. Please
note that proposed amendments to paragraphs (b) and (e), which
relate to landlord/tenant actions, were explained supra in
section I. F. of this Report. Please note further that other
proposed amendments to-paragraph (c) (relating to proofs in
deficiency actions, claims for unliquidated damages and
certain negligence cases) are discussed infra in section I. J.
of this Report.
\
-35-
2004 REpORT OF THE SUPREME COURT
COMMITTEE ON
SPECIAL CIVIL PART PRACTICE
JANUARY 2004
PA-/.3~
a
Electronic Records
The current R. 6:6-3(a) provides for the proofs, in situations where plaintiffs records are
electronic and the claim is founded on an open-ended credit plan, to include a copy of the
periodic statement for the last billing cycle, the format of which is prescribed.by federal law, or a
computer-generated report "setting forth the financial information required to be contained in the
periodic statement" Some judges have interpreted this language to mean that the report must
contain data for all of the items required by federal law to be in the periodic statement In fact, it
is usually the case that the periodic statement for the last hilling cycle will not contain many of
the items because there were no transactions and credits, periodic rates or fmance charges during
the last hilling cycle on an account that has been charged off. The Committee therefore proposes
to eliminate the phrase "fmancial infonnation required to be contained in the periodic statement,"
and substitute in its stead a list of the particuiar items that must, if they exist, be included in the
statement under federal law.
Elimination of Reference to Items Attached to the Complaint
Note that the phase "or if attached to the complaint and verified by.reference in the
affidavit, ~ is to be eliminated from the last sentence of the rule. Permitting a reference to items
attached to the complaint, in the context of the clerk's review of an affidavit of proof, imposes
too much for a bmden on the clerks' offices. For the sake of efficiency, the clerk's staff'should
be able to rely entirely on the affidavit of proof, together with the attachments thereto, when
reviewing a request to enter judgment by default
The Committee's proposed ame~dments to R. 6:6-3(a) follow ..
37
• •
• Page I
LexisNexis® 10fiDOCUMENT
MRC RECEIVABLES CORPORATION, Plaintiff-Respondent, v. THEODORE GOTTESMAN, Defendant-Appellant.
DOCKET NO. A-39S4-06T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2007 N.J. Super. Uupub. LEXIS 965
October 29, 2007, Submitted November 7, 2007, Decided
NOTICE: NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBLISHED OPINIONS.
PRIORIDSTORY: [*1] On appeal from Superior Court of New Jersey, Law
Division, Special Civil Part, Mercer County, Docket No. DC-8339-06.
COUNSEL: Theodore Gottesman, appellant, Pro se.
Pressler and Pressler, L.L.P., attorneys for respondent (Lawrence J. McDermott, Jr., on the brief).
JUDGES: Before Judges S.L. Reisner and Baxter.
OPINION
PERCURlAM
Defendant Theodore Gottesman appeals from two separate orders entered by the Special Civil Part on February 15, 2007. One order denied his motion to dismiss plaintiff's complaint and the other granted plaintiff's motion for summary judgment. We aflinn.
Plaintiff MRC Receivables Corporation (MRC) is the assignee by purchase of a Mastercard account issued by Household Orchard Bank (Household) to defendant Theodore Gottesman on March 8, 1999. Plaintiff instituted suit against defendant in October 2006. Its complaint alleged that defendant owed $ 1416 on his Mastercard account. Defendant filed an answer, in which his sole defense was his statement that he was "not sure whether this account belongs to me."
On January 22, 2007, plaintiff filed a motion for summary judgment. In support of its motion, plaintiff produced a copy of a document transmitted electronically from Household in which Household [*2] attested to the $ 1416 defendant owed on his Mastercard account. In neither his opposition to plaintiff's motion nor in support of his own motion did defendant affinmatively present any proofs to challenge the certification plaintiff had submitted. Instead, defendant asserted that he never entered into an agreement with MRC. He did not deny that he had opened an account with Household, nor did he dispute plaintiff's claim that he had fai led to make required payments to plaintiff's predecessor, Household Orchard Bank. Defendant maintained that he was "not in receipt of any contract or documentation making [him] liable to any other party."
On appeal, we apply the same summary judgment standard from Brill v. Guardian Life Insurance Company oj America, 142 NJ. 520, 540, 666 A.2d 146 (1995) that the trial court is obliged to apply. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167, 704 A.2d 597 (App. Div.), certif denied, 154 NJ. 608, 713 A.2d 499 (1998). Summary judgment must be granted unless the party opposing the motion has established a genuine issue of material fact. Brill, supra, 142 N.J. at 540. Vague assertions by the party opposing a motion for summary judgment are Dot sufficient to defeat a summary [*3] judgment motion. [d. al 541. Not only must the party opposing the motion present "competent evidential materials," id. 01540, but tbose materials must be "sufficient to pemlit a rational fact fUlder to resolve Ule alleged disputed issue in favor of the non-moving party." Ibid.
II .
•
;. Page 2
2007 N.J. Super. Unpub. LEXIS 965, *
Here, the motion judge did not make specific fmdings. We infer, however, from the judge's grant of plaintiffs motion for summary judgment that he reached certain conclusions. In particular, the judge no doubt concluded that defendant's statement that he "was not sure" the account in question belonged to him was not sufficient under Brill to raise a genuine issue of material fact. ·We agree with that conclusion.
We have carefully reviewed the record and the arguments presented by defendant and conclude that the issues presented lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(l)(E).
Affirmed.
Get a Document - by Party Name - NEW CENTURY AND DUNN Page 1 of3
2009 N.J. Super. Unpub. LEXIS 1347, *
NEW CENTURY FINANCIAL SERVICES, INC., Plaintiff-Respondent, v. CHRISTINE DUNN, Defendant-Appellant.
DOCKET NO. A-3460-07T2
SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
2009 N.J. Super. Unpub. LEXIS 1347
March 24, 2009, Argued June 4, 2009, Decided
NOTICE: NOT FOR PUBUCATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.
PLEASE CONSULT NEW JERSEY RULE 1:36-3 FOR CITATION OF UNPUBUSHED OPINIONS.
PRIOR HISTORY: [*1] On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Ocean County, Docket No. DC-14335-07.
CORE'TERMS: summary judgment, re~ollection, account number, insubstantial, nonmoving, discovery, Issue of material fact, genuine issue, material fact, moving party, citation
. omitted, frivolous, disJ:)uted, genuine, owing, counterclaim, forgery
COUNSEL: Appellant ChrIstine Dunn, Pro se, argued the cause.
Lawrence J. McDermott, Jr., argued the cause for respondent (Pressler and Pressler, L.L.P., attorneys; Mr. McDermott, on the brief).
JUDGES: Before Judges Graves and Espinosa.
OPINION
PER CURIAM
Plaintiff, New Century Financial Services, Inc. ("New Century"), filed this lawsuit in the SpeCial Civil Part, seeking to collect a debt It had purchased that was owed by defendant, Christine Dunn, to Providian Financial Corporation ("Providian"). Defendant's answer was that she neither admitted nor denied the allegations in the complaint. Defendant also filed a counterclaim alleging frivolous "litigation. She appeals from an order granting summary judgment to plaintiff. 1 We affirm.
!! FOOTNOTES -"'---' --_ .. -.---~-----.-. '--"--'- -----.--. - ---.---.---- -----J i
I \
! 1 Plaintiff does· not appeal from the dismissal of her counterclaim or the denial of her motion t I to compel discovery. t I ~_. __ • __ ._~_"_'. _____ ...... ___ .. _ •• _. o •• '~ •• _ ..... ~. __ ••• __ •• •• _ ..... _ ..... __ • __ •• __ ••• _._ •••• __ 6_.' -__________ •• _____ .. ____ .. ____ • __ ... ______ "
Defendant raises the following issues on appeal:
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POINT I
SUMMARY JUDGMENT SHOULD BE DENIED DUE TO THE EXISTENCE OF GENUINE ISSUES OF MATERIAL FACTS.
POINT II
PLAINTIFPS MOTION FOR SUMMARY JUDGMENT WAS PREMATURE AND SHOULD HAVE BEEN DENIED BECAUSE DISCOVERY WAS [*2] NOT COMPLETE.
POINT III
THE COURT ERR[ED] BY ADMITTING UNAUTHENTICATED DOCUMENTS AND EVIDENCE INTO THE RECORD WHILE IGNORING DEFENDANrS ORAL AND WRIT [TEN] ARGUMENT.
Page 2 of3
Because we review the summary judgment motion de novo, Prudential Prop. Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167, 704 A.2d 597 (App. Div.), certif. denied, 154 N.J. 608, 713 A.2d 499 (1998), our inquiry is "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. n Brill v. Guardian Ufe Ins. Co. of Am., 142 N.J. 520, 540,666 A.2d 146 (1995). The moving party must show, based upon competent credible evidence, that nthere is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). To withstand summary judgment, the non-moving party must come forward with evidence that creates a "genuine Issue as to any material fact challenged. n
Brill, supra, 142 N.J. at 529. This is ncit satisfied by offering "only facts which are immaterial or of an insubstantial nature, a mere scintilla, '[f]anciful, frivolous, [*3] gauzy or merely suspicious. III Ibid. (citation omltted). The Supreme Court instructed, "where the party opposing summary judgment points only to disputed issues of fact that are 'of an insubstantial nature,' the proper disposition Is summary judgment. n Ibid. (citation omitted).
Plaintiff presented the certification of Heather capriO, an account manager for New Century who is familiar with Its electronically maintained records. Ms. caprio certified that NeW Century purchased a Providian account number In defendanes name ("the Providian account number"). Copies of bills of sale were submitted to corroborate this statement. Ms. Caprio further certified that there was an outstanding account balance of $ 6955.70, resulting in an accrual of $ 167.61 in interest and a total of $ 7123.31 due and owing. Plaintiff also submitted a computer generated report of the account.
. Documents linking defendant to this account were also presented In support of the summary judgment motion. Copies of two monthly statements for the Providian account number, dated October 5, 2003, and November 4, 2003, were addressed to Christine Dunn at her home address in .Forked River, New Jersey. The October statement reflected [*4] a payment o~ $ 157 that was received on September 5, 2003. That payment corresponded with a copy of. a check dated August 30, 2003, which was also submitted. The check was drawn on the account of Christine A. Dunn and Amir R. Salib at their home address in Forked River, New Jersey, and made payable to' Providian Visa in the amount of $ 157. In the memo portion of the check, the Providian account number was recorded.
The original trial date of December 11, 2007, was adjourned twice so that discovery could be' completed. On February 5, 2008, the date of trial, motions for summary judgment and other relief were scheduled to be heard. The court denied defendant's request for a further adjournment but took testimony from defendant and her husband, Amir Salib, to clarify her oppOSition to the summary judgment motion. Defendant denied any indebtedness or any
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Get a Document - by Party Name - NEW CENTURY AND DUNN Page 3 of3
recollection of such debt. Her defense consisted of argument challenging the adequacy of plainti ff's proofs. Defendant testified that she had no recollection of whether she ever had a Providian credit card. She suggested that the check In question might be a forgery. When asked directly by the court whether she signed the check and sent it [*5] to Providian Visa, she stated, "I have no recollection," and that she needed "true certified copies." She refused to state that it was a forgery or to deny that she had signed it. However, she conceded that the name and address on the check were hers; that Amir Salib was her husband; and that the handwritten number on the check matched the number on the account at issue. Mr. Salib also refused to state whether the Signature on the check was his wife's, claiming that he could not do so because he was not a handwriting expert.
Therefore, plaintiff presented proof that defendant had a Providian Visa account; that New Century had purchased that account; and that an'amount of $ 7123.31 was due and owing on that account. In opposition, defendant has presented no evidence that creates a genuine issue of material fact. Relying only upon a lack of recollection, her challenges to the sufficiency of plaintiff's evidence are "of an insubstantial natl;Jre." Brill, supra, 142 N.J. at 529. Consequently, summary judgment was properly granted.
Defendant's remaining arguments lack sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E).
Affirmed.
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