Discover Bank v. Sadia Tahir

• Court: New Jersey Superior Court Appellate Division
• Decided: July 19, 2024
• Docket: A-3068-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3068-22

DISCOVER BANK,

Plaintiff-Respondent,

v.

SADIA TAHIR,

Defendant-Appellant. ________________________

Submitted May 15, 2024 – Decided July 19, 2024

Before Judges Firko and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DC-010515-20.

Erik Mark Helbing, attorney for appellant.

Zwicker & Associates, PC, attorneys for respondent (G. Todd Pondish, on the brief).

PER CURIAM

Defendant Sadia Tahir appeals from an April 27, 2023 Law Division order

granting plaintiff Discover Bank's motion to turnover $9,985.92 seized from defendant's account at J.P. Morgan Chase Bank (Chase Bank). The funds were

levied following a judgment against defendant. Defendant contends she and her

husband own the Chase Bank account as tenants by the entirety. Thus, because

she is solely responsible for the underlying judgment, defendant argues the trial

court had no authority to order the turnover of funds from the jointly -owned

account. After carefully reviewing the record in light of the governing legal

principles and arguments of the parties, we affirm.

The record shows that defendant married her husband, Malik Tahir, in

Pakistan in January 2014. They are the joint owners of the Chase Bank account.

It is not disputed that the underlying judgment is solely against defendant.

On July 12, 2022, $9,985.92 was levied against the Chase Bank account.

On July 22, 2022, plaintiff filed a motion for turnover of the levied funds.

Defendant opposed the motion, arguing the funds in the account were exempt.

However, she did not provide any documentation to identify the source of the

funds deposited in the Chase Bank account.

At oral argument, the trial court noted there was no evidence the money

in the account belonged to one spouse or another. Citing Banc of Am. Leasing

& Cap., LLC v. Fletcher-Thompson Inc., 453 N.J. Super. 50, 53 (App. Div.

2018), the court determined it needed documentation showing the source of the

A-3068-22 2 funds comprising the Chase Bank account. The court adjourned the matter to

allow defendant to provide bank statements establishing the source of the funds.

At the next hearing, the trial court noted defendant did not present the

requested evidence concerning ownership of the funds in the Chase Bank

account. The court concluded the money was not exempt, denied defendant's

objection to the levy, and granted plaintiff's motion to turnover the funds. This

appeal follows.

In Banc of America, we held "when seeking a turnover from a joint

account, the judgment creditor has the burden 'to prove that the moneys thus

deposited are the individual property of the judgment debtor, and therefore

applicable to the satisfaction of the judgment.'" 453 N.J. Super. at 53 (quoting

Esposito v. Palovick, 29 N.J. Super. 3, 10-11 (App. Div. 1953)). In Esposito,

we held it could not be presumed "that one depositing his [or her] own funds in

a joint account in the names of himself [or herself] and another has thereby

created a joint tenancy in the account." 29 N.J. Super. at 8.

N.J.S.A. 17:16I-4(a) provides in relevant part:

A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit. In the absence of proof of net contributions, the account belongs in equal shares to all parties having present right of withdrawal.

A-3068-22 3 Under this statutory framework, the Chase Bank account funds belong to

both defendant and her husband in proportion to their individual deposits.

Further, the statute clearly provides that absent proof of their individual

contributions, it is presumed that each named account holder owns an equal

share in the funds in the account.

In this instance, the trial court gave defendant an opportunity to present

evidence to overcome the statutory presumption, but she did not avail herself of

that opportunity. Instead, she argues that another statute effectively supersedes

N.J.S.A. 17:16I-4. Specifically, defendant relies on N.J.S.A. 46:3-17.4, which

provides:

Neither spouse may sever, alienate, or otherwise affect their interest in the tenancy by the entirety during the marriage or upon separation without the written consent of both spouses.

Defendant also relies on our decision in Jimenez v. Jimenez, 454 N.J.

Super. 432 (App. Div. 2018). In that case, the defendant and his non -party

spouse obtained a tract of land they owned as tenants by the entirety. Id. at 434.

The plaintiffs moved to compel the partition and sale of the jointly-owned

property to satisfy a judgment against the defendant. Id. at 434-35. The trial

A-3068-22 4 court denied the motion, finding N.J.S.A. 46:3-17.4 prohibited that remedy. Id.

at 435. We affirmed, noting:

We recognize Section 17.4 literally commands that "neither spouse" may sever, alienate, or otherwise affect their shared interests in the tenancy by the entirety, and that plaintiffs are not [the defendant's] "spouse." Even so, we conclude the statutory prohibition applies to a situation where, as here, one spouse's failure to pay his personal debts to third-party creditors has resulted in a money judgment entered against him alone. Otherwise, a free-wheeling spouse, by amassing such individual debt, could detrimentally "affect" the other spouse's interests in their co-owned property.

[Id. at 438.]

Plaintiff argues defendant's reliance upon Jimenez is misplaced because it

involved a judgment creditor attempting to force the sale of real property to

enforce payment of an obligation against one of the co-owners. Real property

rights as between joint owners, plaintiff contends, cannot be individually

addressed without liquidating the property in question. Therefore, any

execution on that property would necessarily involve its sale, infringing on the

individual property rights of the innocent co-owner. Plaintiff argues—and we

agree—that concern does not arise with respect a joint bank account, since it is

a straightforward matter to apportion the relative ownership interests of the

A-3068-22 5 depositors without affecting the remaining funds belonging to the innocent co -

owner.

Defendant notes that the concept of tenancy by the entirety can apply to

personal property and not just real property, citing N.J.S.A. 46:3-17.2(a). That

statute provides, in pertinent part, that "[a] tenancy by entirety shall be created

when . . . [a] husband and wife together take title to an interest in real property

or personal property under a written instrument designating both of their names

as husband and wife." (Emphasis added).

We conclude that in this specific application, N.J.S.A. 46:3-17.4 does not

supersede the presumptive apportionment established in N.J.S.A. 17:16I-4. The

latter statute upon which the trial court relied deals specifically with jointly -

owned bank accounts. We are not persuaded that it was effectively eviscerated

by another statute dealing with all manner of personal property, including

personal property that could not be apportioned without liquidation.

Furthermore, as we have noted, defendant was afforded an opportunity to

overcome the presumption but chose not to comply with the trial court's

instructions. Her refusal to provide documentation to answer the question raised

by the trial court provides an adequate basis for applying the unrebutted

statutory presumption. In sum, we find no error in the trial court's determination

A-3068-22 6 that the Chase Bank account funds were not exempt and could be levied upon to

satisfy the judgment against plaintiff. To the extent we have not specifically

addressed them, any remaining arguments raised by defendant lack sufficient

merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3068-22 7