ENVISION FINANCIAL GROUP, LLC, ETC. VS. BERNARD GREEN (L-3859-15, CAMDEN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2489-19
ENVISION FINANCIAL GROUP,
LLC, assignee of AA BAIL
BONDS, INC.,
Plaintiff-Respondent,
v.
BERNARD GREEN, CELISA
LEWIS, WARREN PATTERSON,
MICHELLE L. MALKIN,
LITONYA JENNINGS, TRACY
LEWIS, and KENNETH CLARK II,
Defendants,
and
TIMOTHY JACKSON, SR.,
Defendant-Appellant.
______________________________
Submitted October 20, 2021 – Decided November 9, 2021
Before Judges Geiger and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-3859-15.
Mattleman, Weinroth, & Miller, PC, attorneys for
appellant (Sheera G. Engrissei, of counsel and on the
briefs).
Saldutti Law Group, attorneys for respondent (Thomas
B. O'Connell, of counsel and on the brief).
PER CURIAM
Defendant Timothy Jackson (defendant) appeals from a September 15,
2020 order granting summary judgment to plaintiff Envision Financial group,
LLC, assignee of AA Bail Bonds, Inc. (AA) in this collection action. We affirm
in part and reverse and remand in part.
We derive the following facts from the record. Bail was set at $800,000
on the nephew of defendant's wife. On February 20, 2009, defendant executed
a "Promissory Note Premium Plan Agreement" (Note) with AA to finance the
$80,000 bail bond premium, $24,000 of which was paid initially, with the
$56,000 balance to be paid in monthly installments of $1,500 commencing
November 9, 2009.
AA assigned the Note to plaintiff on September 27, 2017, as part of an
Accounts Receivable Purchase Agreement. Plaintiff remained the holder of the
Note. The note was secured by a lien on the residence owned jointly by
defendant and his wife. Defendant defaulted on payments due under the note.
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On October 9, 2015, AA filed a complaint against defendant and seven
other individuals alleging breach of contract. The complaint alleged defendant
and seven others owed $76,550.00 under the bail bond agreement plus
$19,137.50 in contractual attorney's fees. AA attempted personal service on
defendant three times, using the address listed on the account, but the process
server was told by an occupant that they did not know defendant, despite that
address being used as collateral for the bond. AA performed a skip trace of
defendant's possible addresses which flagged a High Point, North Carolina
residence. AA served the summons and complaint by regular and certified mail
addressed to the North Carolina address. After defendant did not file a
responsive pleading, AA requested entry of default judgment, which was entered
against defendant on May 17, 2016, in the amount of $95,977.50, inclusive of
contractual attorney's fees and court costs.
Defendant's wife's obligation on the debt was discharged in bankruptcy.
AA obtained a writ of execution against defendant's assets. The Mercer County
Sheriff's Office levied on defendant's bank account and plaintiff moved for a
turnover of the funds ($8,169.67).
On May 29, 2019, defendant filed a motion to vacate the default judgment
and stay enforcement of the writ of execution on grounds of improper service of
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process. While that motion was pending, on June 6, 2019, the trial court granted
turnover of the funds to plaintiff's counsel.
The court heard oral argument on defendant's motion on June 21, 2019,
but reserved decision to afford the parties to discuss settlement options. On July
12, 2019, the court entered an order vacating the judgment as to defendant only,
with instructions for defendant to file an answer within fifteen days, and for AA
to file a motion for summary judgment returnable on August 30, 2019.
Defendant filed an answer and counterclaim alleging breach of the implied
covenant of good faith and fair dealing (count one), negligence (count two), and
violations of the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -
20 (count three). Plaintiff pursued discovery, including deposing defendant.
Plaintiff then moved for summary judgment.
Defendant did not oppose the summary judgment motion but instead filed
a motion to vacate the levy and dismiss the complaint with prejudice. On
December 6, 2019, the court heard oral argument, reserved decision, and
scheduled a plenary hearing.
The judge rejected defendant's statute of limitations and lack of standing
arguments, finding they had no merit. He explained that the accrual date for the
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cause of action is the breach of the contract and that is when the six-year statute
of limitations begins to run.
Defendant further argued that plaintiff had misrepresented the balance due
on the Note throughout the case. The judge determined he did not have enough
information to assess whether a proper crediting had been done to the account
and decided, "the money is going to be kept in the account, so the status quo is
going to be kept." The court reserved decision due to time constraints.
When asked why the prior judge did not vacate the levy when he vacated
default judgment, plaintiff's counsel explained that the money might have been
lost and "we anticipate[d] getting a judgment" so the court made it a condition
that the money remain frozen until "some later point in time." The judge then
noted "it would [be] stupid for the depositor not to take the money out; right?"
He was satisfied the levy should not have been vacated based on the expected
future summary judgment motion.
The "plenary hearing," which consisted of oral argument without
testimony, took place on January 15, 2020. The parties discussed differing
amounts due, and after plaintiffs agreed to credit defendant an additional
$24,000 aside from the original payment of $24,000, they agreed on $17,411.45
due plus court costs ($1,427.70) and attorney's fees ($4,352.86). Defendant
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stated he agreed with the calculations. Defendant began to argue the amount
had changed since plaintiff's original complaint was filed and the court
responded, "You didn't make any payments. I don't know why you're
complaining."
In response to how and why defendant came to sign the bond, defendant
stated "[t]hey said because my name was on the deed, I had to cosign. I wouldn't
be liable for anything. I was just giving her the ability to use the property as
collateral." The court explained defendant signed a personal guarantee of
$56,000 and denied his cross-motion because the approximately $8,000 in the
bank was less than the amount for summary judgment. Finally, defendant stated
he filed a motion for dismissal based on plaintiff's alleged violation of the Fair
Debt Collection Act and the court responded he "can make that argument to the
Appellate Division. All this is standard stuff."
Defendant filed this appeal on February 21, 2020. Thereafter, plaintiff
applied for turnover of the funds held in escrow. The trial court issued an April
24, 2020 order that stayed turnover of the funds held in escrow in counsel's trust
account pending appeal. It further ordered that plaintiff could reapply to turn
over the escrowed funds if defendant's appeal was dismissed or denied.
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Defendant subsequently failed to respond to an information subpoena and
plaintiff moved to enforce litigant's rights, which the court granted on May 8,
2020. Defendant then filed an amended notice of appeal.
Defendant raises the following points for our consideration:
I. THE TRIAL COURT ERRED IN FAILING TO
VACATE THE CORRESPONDING WRIT OF
EXECUTION WHEN IT GRANTED APPELLANT'S
MOTION TO VACATE THE JUDGMENT.
II. THE TRIAL COURT ERRED BY GRANTING
SUMMARY JUDGMENT, AS SIGNIFICANT
ISSUES OF FACT REMAIN.
1. The Summary Judgment Standard.
2. Appellant's CFA Claim Should Have Survived
Summary Judgment.
3. The Good Faith and Fair Dealing Claim Should
Have Survived, As Well.
4. Summary Judgment for Respondent was also
Inappropriate Because Respondent Submitted No
Admissible Evidence to Support its Motion and
Because it Lacks Standing.
A.
We first address the summary judgment granted to plaintiff. We review a
grant of summary judgment using the same standard that governs the trial court's
decision. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018)
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(citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). Under that standard, summary
judgment will be granted when "the competent evidential materials submitted
by the parties" viewed in the light most favorable to the non-moving party, show
that there are no "genuine issues of material fact" and that "the moving party is
entitled to summary judgment as a matter of law." Grande v. Saint Clare's
Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat, 217 N.J. at 38); see also R.
4:46-2(c). "An issue of material fact is 'genuine only if, considering the burden
of persuasion at trial, the evidence submitted by the parties on the motion,
together with all legitimate inferences therefrom favoring the non-moving party,
would require submission of the issue to the trier of fact.'" Ibid. (quoting Bhagat,
217 N.J. at 38). We owe "no special deference" to the motion judge's legal
analysis. RSI Bank, 234 N.J. at 472 (quoting Templo Fuente De Vida Corp. v.
Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016)).
The trial court properly rejected defendant's argument that plaintiff lacked
standing to enforce the Note. The certification of plaintiff's managing partner,
and the exhibits attached thereto, established that plaintiff is the holder of the
Note through the Accounts Receivable Purchase Agreement with AA.
Defendant admitted he made no payments to AA or plaintiff on the Note,
and it was clear throughout the course of the hearings that the $8 ,000 levy on
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his account was on the lower end of what he would likely owe. Moreover,
defendant did not oppose the summary judgment motion, respond to plaintiff's
statement of material facts, or file a counterstatement of material facts.
Accordingly, "all material facts in the movant's statement which are sufficiently
supported [are] deemed admitted for purposes of the motion only . . . ." R. 4:46-
2(b).
As to defendant's CFA claim, he must establish: "(1) unlawful conduct
by the defendants; (2) ascertainable loss on the part of the plaintiff; and (3) a
causal relationship between the defendant's unlawful conduct and the plaintiff's
ascertainable loss.'" Dabush v. Mercedes-Benz USA, LLC, 378 N.J. Super. 105,
114 (App. Div. 2005) (citation omitted). Defendant argues CFA violations
under two theories. Defendant states AA engaged in "unconscionable and
misleading conduct when [he] signed the note." He was allegedly told he would
not be personally liable for the debt and he "only needed his signature because
he held title to the property his wife wished to use as collateral." Defendant
alleges the unlawful conduct by plaintiff was the "representation to [him] that
he would incur no personal liability." However, during his deposition,
defendant stated that it was his wife who told him he had to cosign in order to
give her permission to use the property as collateral because his name was on
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the deed, not AA. In any event, the clear and unambiguous language of the Note
renders defendant personally liable for the balance of the bail bond premium.
Defendant does not claim that he did not execute the Note.
Second, defendant alleges a CFA violation based on plaintiff's actions
which "misled him about the amount of the debt." Defendant asserts that
throughout the litigation, "each time he inquired about the debt, a different and
inconsistent amount due was provided." Defendant states the debt was
misrepresented on "several occasions" but the court "once again" "glossed over
these issues when it haphazardly entered summary judgment for [r]espondent."
Defendant does not provide any record cites, documentation, or competent
evidence of credited payments that would suggest fraud or misrepresentation
regarding the balance owed by AA or plaintiff. Although defendant argues the
balance claimed due was incorrect, even if true, such representations during the
litigation do not constitute actionable consumer fraud under the CFA.
On appeal, defendant cryptically asserts that plaintiff also violated the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 to -1692p.
Defendant did not advance this claim in his counterclaim or in opposition to
summary judgment before the trial court. We therefore decline to address it.
See Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580, 586 (2012) (explaining
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that appellate courts decline to consider questions or issues not properly raised
at trial when an opportunity for presentation was available, unless the issues
concern matters of public importance); Nieder v. Royal Indem. Ins. Co., 62 N.J.
229, 234 (1973) (same). In addition, plaintiff did not brief this issue. "An issue
not briefed on appeal is deemed waived." Sklodowsky v. Lushis, 417 N.J. Super.
648, 657 (App. Div. 2011).
As to defendant's claim that plaintiff breached the covenant of good faith
and fair dealing, he asserts that plaintiff's misleading actions destroyed his right
to receive the benefits of the contract which resulted in damages. Defendant
does not elaborate further in his brief. We deem this inadequately briefed issue
waived. Ibid. Moreover, when asked about the basis for this claim during his
deposition, defendant responded that the bond agreement has $56,000 due but
according to "your lawsuit, the amount is quite a bit higher." When asked what
he thought the figure should be, he explained that this event happened close to
eleven years ago and he "[doesn't] have great familiarity with these particular
contracts. Which amount [he] believe[s] is wrong, [he doesn't] have significant
information to answer that question." When coupled with his failure to oppose
summary judgment, defendant has not demonstrated the existence of material
facts in dispute. A trial court must decide a motion for summary judgment based
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upon the factual assertions that were "properly included in the motion" record.
Kenney v. Meadowview Nursing & Convalescent Ctr., 308 N.J. Super. 565, 573
(App. Div. 1998).
For these reasons, we conclude that the trial court properly granted
summary judgment to plaintiff.
B.
We next address whether the trial court erred by allowing the writ of
execution and bank levy to remain in force after the default judgment was
vacated. Defendant argues that a vacated judgment cannot be enforced through
a writ of execution and bank levy. We agree.
Generally, "[p]rocess to enforce a judgment . . . shall be a writ of execution
. . . ." R. 4:59-1(a). Plaintiff "shall serve a copy of the fully endorsed writ,
personally or by ordinary mail, on the judgment-debtor after a levy on the
debtor's property has been made by sheriff . . . ." Ibid. In addition, the court
officer levying on the debtor's property shall, on the day the levy is made, "mail
a notice to . . . the person or business entity whose assets are to be levied on
stating that a levy has been made and describing exemptions from levy and how
such exemptions may be claimed by qualified persons." R. 4:59-1(h). "If the
clerk or the court receives a claim of exemption, whether formal or informal, it
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shall hold a hearing thereon within [seven] days after the claim is made." Ibid."[N]o further action shall be taken with respect to the levy pending the outcome
of the exemption hearing." Ibid.These procedures protect the asset owner's right to oppose enforcement of
void judgments and debts that have been discharged in bankruptcy, and to
enforce statutory exemptions from levy. The judgment debtor may oppose the
levy if the judgment has been vacated or the writ of execution is void. A writ
of execution is void if the underlying judgment is vacated. Borromeo v.
DiFlorio, 409 N.J. Super. 124, 141 (App. Div. 2009). "Clearly a void judgment
is not entitled to enforcement or execution under [Rule 4:59-1]." Pressler &
Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 4:59-1 (2022) (citing Berger
v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200 (App. Div. 1990)).
Here, the default judgment entered against defendant was properly
vacated for want of in personam jurisdiction due to lack of service of process.
See Berger, 244 N.J. Super. at 205 ("when a court is satisfied . . . that initial
service of process was so defective that the judgment is void for want of in
personam jurisdiction, the resulting void default judgment must ordinarily be set
aside").
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The trial court erred by not voiding the writ of execution and levy when
the default judgment was vacated. In turn, the turnover of the levied funds to
plaintiff's counsel's escrow account was also error. The fact that we uphold the
summary judgment subsequently granted to plaintiff does not render those error s
moot. A creditor cannot use a writ of execution to enforce a vacated judgment.
We reverse the turnover of the levied funds and remand for the trial court to
enter an order vacating the levy and directing that the escrowed funds be
returned to defendant.
To the extent we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part and reversed and remanded in part. We do not retain
jurisdiction.
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