DEBORAH DIGIOVANNI VS. SAKER SHOP RITES, INC.,ET AL.(L-4465-11, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 14, 2017
• Docket: A-4307-14T1
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4370-14T2

ROBERT J. TRIFFIN,

Plaintiff-Appellant,

v.

MID POINT RECYCLING, LLC, a/k/a MID PAST RECYCLING, a/k/a NU WAY RECYCLING, ALLEN E. HAIRSTON, II, JULIAN PORTER and R. VINCENT BOVE,

Defendants,

and

TD BANK, N.A.,

Garnishee-Respondent. ____________________________________

Argued January 24, 2017 – Decided February 14, 2017

Before Judges Messano and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-24700-13.

Robert J. Triffin, appellant, argued the cause pro se. Michael J. Watson argued the cause for respondent (Brown & Connery, LLP, attorneys; Mr. Watson and Jeffrey R. Johnson, on the brief).

PER CURIAM

Plaintiff Robert J. Triffin purchased a dishonored check from

a check cashing agency drawn on Account Number 4250540535 1 in the

name of Mid Point Recycling LLC (Mid Point). He then sought to

collect that amount from Mid Point and obtained a default judgment

in the amount of $943.05. On April 7, 2014, a Writ of Execution

and levy was issued for service by a constable upon TD Bank, N.A.

The return on the levy, dated April 21, 2014, reflects TD Bank's

response of "no accounts" and a handwritten notation: "4250540535

copy of check."

Triffin appeals from an order entered on April 10, 2015, that

denied his motion for an order to show cause (OTSC) why TD Bank

should not be found in contempt "for its failure to fully disclose

the status of all accounts and all property and monies, TD Bank

owed to" Mid Point and why it should not be liable for the full

amount of a writ of execution entered against the judgment debtor.

In support of this motion, Triffin submitted a certification

in which he referred to the constable's report of April 2014 and

1 According to the record, this is not an "active financial account number" and therefore is not confidential. R. 1:38-7(a).

2 A-4370-14T2 attached as exhibits email correspondence between his office and

one "Mev Kira" with an email address of mev@evictionsnj.com. In

one of those emails, Mev Kira stated the account was closed and

asked if Triffin had a Tax ID. Communications from Triffin and

Rita Genovese, his Director of Operations, to Kira state a second

dishonored check had been purchased that was drawn on a different

Mid Point account at TD Bank. The exhibits indicate that the

constable was copied on some of the emails referencing the account

for the second dishonored check. During the period from July 2014

through March 2015, there were repeated requests to Kira to

ascertain the status of the bank levy.

On March 11, 2015, approximately one year after the levy was

first served, Genovese sent an email directly to Jason Sbalcio,

Legal Processing Manager for TD Bank. The email states that a copy

of a dishonored check issued on July 18, 2014 drawn on a different

account number is attached and requests information on the status

of that account and the levy. The email represents that this

check was presented to the bank by the constable when he served

the levy. However, the date of the check reported in the email

indicates the check was issued three months after the levy was

served.

Sbalcio replied promptly by email the same day, informing

Triffin, "We only communicate with the Constable in these matters.

3 A-4370-14T2 Constable Bove's office can contact us at 856-380-2675 to receive

a status." Triffin filed the motion that is the subject of this

appeal five days later.

The motion did not seek any emergent or injunctive relief.

Triffin argued he had made five requests of the constable and "one

request of TD Bank's levy department manager, Jason Sbalcio, and

all to no avail, to resolve the status of Mid Point's referenced

unaccounted for second checking account." Characterizing TD

Bank's conduct as "egregious unclean hands in refusing to account

for Mid Point's missing second account," Triffin asked the court

to hold TD Bank liable for the full amount of the writ of execution

with levy.

In opposing the motion, TD Bank argued: service of the OTSC

upon TD Bank by email was ineffective; the OTSC was procedurally

deficient because it was not accompanied by a verified complaint

or affidavit as required by Rule 4:67-2(a); the claims asserted

and relief sought are not available through an OTSC or application

to proceed summarily pursuant to Rule 4:67; the motion to hold TD

Bank liable for the judgment lacks merit.

The trial judge denied Triffin's requests for relief and

issued a written statement of reasons. Citing Rules 4:52-1 and -

2, the judge found Triffin's failure to file a verified complaint

or affidavit as grounds for the denial of the motion.

4 A-4370-14T2 On appeal, Triffin argues that Rasner v. Carney, 108 N.J.L.

426 (Sup. Ct. 1932) created "a full and complete remedy at law to

redress a garnishee's failure to respond to a properly served and

substantively complete garnishment execution" and that the trial

court erred in failing to abide by that holding. He also argues

TD Bank waived: (1) any challenge to the efficacy and service of

the writ of execution with garnishment and (2) any argument that

the second checking account was not open or lacked sufficient

funds to satisfy the judgment. After reviewing these arguments

in light of the record and applicable principles of law, we

conclude they lack sufficient merit to warrant discussion beyond

the following brief comments. R. 2:11-3(e)(1)(E).

As we have noted, Triffin did not seek emergent or injunctive

relief. Therefore, the requirements of Rule 4:52-1 do not apply.

Still, because Triffin's motion was properly denied for other

reasons, we affirm. See Do-Wop Corp. v. City of Rahway, 168 N.J.

191, 199 (2001) ("[A]ppeals are taken from orders and judgments

and not from opinions, oral decisions, informal written decisions,

or reasons given for the ultimate conclusion."); Velazquez v.

Jiminez, 336 N.J. Super. 10, 43 (App. Div. 2000), aff’d, 172 N.J.

240 (2002).

The chronology of events as reported by Triffin reflects that

one request was made of TD Bank to inquire into a second Mid Point

5 A-4370-14T2 account; that the bank promptly replied it would discuss the matter

only with the constable and provided contact information; and that

five days later, the motion seeking a judgment against the bank

on equitable grounds was filed.

Rasner was the sole support provided for this demand. Triffin

argues that the court held a garnishee's failure to either deny

or admit that a garnishee owes a debt to a judgment debtor is

tantamount to a garnishee's conclusive admission that the

garnishee owes a debt to a judgment debtor for the amount levied

upon.2 Triffin's reliance is misplaced.

In Triffin's view, the garnishee was required to admit or

deny the debt owed by the judgment debtor and, failing to do so,

the garnishee became liable for the full amount of the judgment.

But neither the statute relied upon in Rasner nor N.J.S.A. 2A:17-

63, its current iteration, is designed to shift the obligation of

a judgment debtor to a garnishee who owes no debt to the judgment

creditor. Rasner recites the relevant statutory authority as

follows:

[A]fter levy shall have been made upon any debt due from a third person to the judgment

2 The language in Rasner relied upon by Triffin to the effect that a failure to admit or deny is tantamount to a conclusive admission was explicitly rejected by the Court of Errors and Appeals in Beninati v. Hinchliffe, 126 N.J.L. 587 (E. & A. 1941). The Court made clear that an order under the relevant statute "may be made only when the garnishee admits the debt." Id. at 590.

6 A-4370-14T2 debtor the court may make an order upon such garnishee and the judgment debtor to show cause why the said debt to an amount not exceeding the sum necessary to satisfy the execution shall not be paid to the officer holding the same; and upon the hearing had on the return of the order to show cause may require the garnshishee to pay said debt if he admits it, to the officer holding the execution.

[Id. at 428-29 (emphasis added).]

The language, "if he admits it" relates to whether the

garnishee admits having a debt due to the judgment debtor. The

statute was therefore applicable in Rasner, where the levy was

upon rents due to the judgment debtor from her tenants. Id. at

427.

Triffin sought to levy upon an account owned by the judgment

debtor, not upon any debt TD Bank owed to the judgment debtor.

Therefore, neither Rasner nor N.J.S.A. 2A:17-63 provide any

authority for the relief sought in his motion.

Affirmed.

7 A-4370-14T2