NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0457-19T3
FIRST ATLANTIC FEDERAL CREDIT UNION,
Plaintiff-Respondent,
v.
CHAD STRACENSKY,
Defendant-Appellant. _____________________________
Argued telephonically July 28, 2020 – Decided August 10, 2020
Before Judges Sumners and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-2694-19.
Christopher Bruschi argued the cause for appellant.
Thomas B. O'Connell argued the cause for respondent (Saldutti Law Group, attorneys; William F. Saldutti IV, of counsel and on the brief).
PER CURIAM In this Special Civil Part collection matter for an unpaid credit card
account and an overdrawn checking account, defendant Chad Stracensky
appeals the orders of: (1) July 26, 2019 granting summary judgment to plaintiff
First Atlantic Federal Credit Union with respect to the amount of attorney's fees
awarded on an undisputed $10,369.18 debt balance; (2) August 28, 2019
denying his motion for reconsideration of the summary judgment attorney's fees
award; and (3) October 2, 2019 enforcing litigant's rights because defendant
failed to respond to an information subpoena served upon his attorney. Because
the trial court's statement of reasons explaining its summary judgment and
reconsideration orders failed to indicate how the attorney's fees were calculated
as required by Rule 1:7-4(a), and the court neither allowed oral argument nor
indicated why it was not allowed on the reconsideration motion as required by
Rule 1:6-2(d), we reverse in part and remand. As for the order enforcing
litigant's rights, we reverse because the information subpoena was not served
upon defendant as required by Rule 6:7-2(b)(1).
I
Plaintiff filed a complaint alleging defendant: (1) defaulted on a line of
credit under his credit card account, owing $10,345.80 plus costs and reasonable
A-0457-19T3 2 attorney’s fees; and (2) overdrew his checking account, owing $23.38 plus costs
and reasonable attorney’s fees.
Plaintiff later moved for summary judgment. The motion included a
certification by plaintiff's collection supervisor with exhibits setting forth the
amounts owed on the credit card account and overdrawn checking account and
requesting $2,592.30 in attorney’s fees. The motion also included the
certification of plaintiff’s counsel who asserted attorney’s fees of $2,592.30, a
sum equaling twenty-five percent of defendant's debt, was reasonable. In
opposition, defendant's counsel submitted a letter brief contending plaintiff's
motion failed to establish proof of defendant's indebtedness and an "agree[ment]
to be responsible for attorney's fees upon default[.]" The brief also stated
plaintiff had not responded to discovery requests. The court denied the motion
for being prematurely filed due to plaintiff's outstanding discovery.
After plaintiff supplied the outstanding discovery, it renewed its summary
judgment request relying on the same certifications submitted with its initial
unsuccessful request. Plaintiff's motion indicated oral argument was requested
pursuant to Rule 1:6-2(d) if opposition was filed. Again, defendant's counsel
submitted a letter brief opposing the motion. This time defendant's challenge
was limited to the assertion that plaintiff failed to demonstrate, in accordance
A-0457-19T3 3 with the credit card agreement, attorney’s fees sought equaling twenty-five
percent of the debt "were due (or had been incurred) on this [a]greement at the
time [p]laintiff retained its attorney[,] . . . [as] such fees are typically contingent
upon collection and, therefore are not due until that time."
On July 26, 2019, without oral argument, the trial court entered an order,
together with a statement of reasons, granting summary judgment in favor of
plaintiff in the amount of $10,369.18 plus costs of $82, contractual attorney's
fees of $2,592.30, and statutory attorney's fees of $274.23, totaling $13,317.71.
The court reasoned because defendant did not dispute the amount of the debt,
"there [was] no genuine issue of material fact as to [his] liability for the
outstanding indebtedness pursuant to the credit card agreement between" the
parties and plaintiff was entitled to summary judgment.
Defendant appeals the summary judgment order, arguing the court failed
to mention in its statement of reasons: (1) why it awarded plaintiff attorney's
fees; and (2) defendant's liability with respect to his checking account with
plaintiff, having only mentioned the credit card. Defendant contends plaintiff
failed to prove entitlement to contractual attorney's fees on an unpaid debt.
Defendant also contends the court issued its decision without granting plaintiff's
request for oral argument, as he anticipated.
A-0457-19T3 4 We conclude the court failed to properly explain the basis for finding
defendant liable for attorney's fees.1 Rule 1:7-4(a) provides "[t]he court shall,
by an opinion or memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon . . . on every motion decided by a written
order that is appealable as of right[.]" "Meaningful appellate review is inhibited
unless the judge sets forth the reasons for his or her opinion." Strahan v. Strahan,
402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J.
Super. 441, 443 (App. Div. 1990)). In this regard, a trial court is required to
"analyze the [relevant] factors in determining an award of reasonable counsel
fees and then must state its reasons on the record for awarding a particular fee."
R.M. v. Supreme Court of N.J., 190 N.J. 1, 12 (2007) (alteration in original)
(quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)).
Because the court did not explain the reasons for the attorney's fees award
in its July 26 order, we reverse that portion of the order and remand for the court
to comply with Rule 1:7-4(a). We take no position on the amount, if any, of the
attorney's fees plaintiff is entitled to receive. Our reversal does not disturb the
amount of the July 26 order related to defendant's debt for the $10,369.18 credit
1 At oral argument on the appeal, plaintiff's counsel conceded the court did not explain the factual and legal basis for the attorney's fees award. A-0457-19T3 5 card account and overdrawn checking account plus costs of $82. Thus, the court
should issue an amended order reflecting this judgment amount.
As for the lack of oral argument for the motion, defendant never requested
it. That said, we recognize defendant's expectation of argument because he
opposed plaintiff's motion, which indicated if opposition was filed, oral
argument under Rule 1:6-2(d) was requested.
Plaintiff's request should have been granted as of right, and defendant had
a reasonable right to expect argument would be provided. R. 1:6-2(d); see also
Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003).
Free access — add to your briefcase to read the full text and ask questions with AI
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-0457-19T3
FIRST ATLANTIC FEDERAL CREDIT UNION,
Plaintiff-Respondent,
v.
CHAD STRACENSKY,
Defendant-Appellant. _____________________________
Argued telephonically July 28, 2020 – Decided August 10, 2020
Before Judges Sumners and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. DC-2694-19.
Christopher Bruschi argued the cause for appellant.
Thomas B. O'Connell argued the cause for respondent (Saldutti Law Group, attorneys; William F. Saldutti IV, of counsel and on the brief).
PER CURIAM In this Special Civil Part collection matter for an unpaid credit card
account and an overdrawn checking account, defendant Chad Stracensky
appeals the orders of: (1) July 26, 2019 granting summary judgment to plaintiff
First Atlantic Federal Credit Union with respect to the amount of attorney's fees
awarded on an undisputed $10,369.18 debt balance; (2) August 28, 2019
denying his motion for reconsideration of the summary judgment attorney's fees
award; and (3) October 2, 2019 enforcing litigant's rights because defendant
failed to respond to an information subpoena served upon his attorney. Because
the trial court's statement of reasons explaining its summary judgment and
reconsideration orders failed to indicate how the attorney's fees were calculated
as required by Rule 1:7-4(a), and the court neither allowed oral argument nor
indicated why it was not allowed on the reconsideration motion as required by
Rule 1:6-2(d), we reverse in part and remand. As for the order enforcing
litigant's rights, we reverse because the information subpoena was not served
upon defendant as required by Rule 6:7-2(b)(1).
I
Plaintiff filed a complaint alleging defendant: (1) defaulted on a line of
credit under his credit card account, owing $10,345.80 plus costs and reasonable
A-0457-19T3 2 attorney’s fees; and (2) overdrew his checking account, owing $23.38 plus costs
and reasonable attorney’s fees.
Plaintiff later moved for summary judgment. The motion included a
certification by plaintiff's collection supervisor with exhibits setting forth the
amounts owed on the credit card account and overdrawn checking account and
requesting $2,592.30 in attorney’s fees. The motion also included the
certification of plaintiff’s counsel who asserted attorney’s fees of $2,592.30, a
sum equaling twenty-five percent of defendant's debt, was reasonable. In
opposition, defendant's counsel submitted a letter brief contending plaintiff's
motion failed to establish proof of defendant's indebtedness and an "agree[ment]
to be responsible for attorney's fees upon default[.]" The brief also stated
plaintiff had not responded to discovery requests. The court denied the motion
for being prematurely filed due to plaintiff's outstanding discovery.
After plaintiff supplied the outstanding discovery, it renewed its summary
judgment request relying on the same certifications submitted with its initial
unsuccessful request. Plaintiff's motion indicated oral argument was requested
pursuant to Rule 1:6-2(d) if opposition was filed. Again, defendant's counsel
submitted a letter brief opposing the motion. This time defendant's challenge
was limited to the assertion that plaintiff failed to demonstrate, in accordance
A-0457-19T3 3 with the credit card agreement, attorney’s fees sought equaling twenty-five
percent of the debt "were due (or had been incurred) on this [a]greement at the
time [p]laintiff retained its attorney[,] . . . [as] such fees are typically contingent
upon collection and, therefore are not due until that time."
On July 26, 2019, without oral argument, the trial court entered an order,
together with a statement of reasons, granting summary judgment in favor of
plaintiff in the amount of $10,369.18 plus costs of $82, contractual attorney's
fees of $2,592.30, and statutory attorney's fees of $274.23, totaling $13,317.71.
The court reasoned because defendant did not dispute the amount of the debt,
"there [was] no genuine issue of material fact as to [his] liability for the
outstanding indebtedness pursuant to the credit card agreement between" the
parties and plaintiff was entitled to summary judgment.
Defendant appeals the summary judgment order, arguing the court failed
to mention in its statement of reasons: (1) why it awarded plaintiff attorney's
fees; and (2) defendant's liability with respect to his checking account with
plaintiff, having only mentioned the credit card. Defendant contends plaintiff
failed to prove entitlement to contractual attorney's fees on an unpaid debt.
Defendant also contends the court issued its decision without granting plaintiff's
request for oral argument, as he anticipated.
A-0457-19T3 4 We conclude the court failed to properly explain the basis for finding
defendant liable for attorney's fees.1 Rule 1:7-4(a) provides "[t]he court shall,
by an opinion or memorandum decision, either written or oral, find the facts and
state its conclusions of law thereon . . . on every motion decided by a written
order that is appealable as of right[.]" "Meaningful appellate review is inhibited
unless the judge sets forth the reasons for his or her opinion." Strahan v. Strahan,
402 N.J. Super. 298, 310 (App. Div. 2008) (quoting Salch v. Salch, 240 N.J.
Super. 441, 443 (App. Div. 1990)). In this regard, a trial court is required to
"analyze the [relevant] factors in determining an award of reasonable counsel
fees and then must state its reasons on the record for awarding a particular fee."
R.M. v. Supreme Court of N.J., 190 N.J. 1, 12 (2007) (alteration in original)
(quoting Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 21 (2004)).
Because the court did not explain the reasons for the attorney's fees award
in its July 26 order, we reverse that portion of the order and remand for the court
to comply with Rule 1:7-4(a). We take no position on the amount, if any, of the
attorney's fees plaintiff is entitled to receive. Our reversal does not disturb the
amount of the July 26 order related to defendant's debt for the $10,369.18 credit
1 At oral argument on the appeal, plaintiff's counsel conceded the court did not explain the factual and legal basis for the attorney's fees award. A-0457-19T3 5 card account and overdrawn checking account plus costs of $82. Thus, the court
should issue an amended order reflecting this judgment amount.
As for the lack of oral argument for the motion, defendant never requested
it. That said, we recognize defendant's expectation of argument because he
opposed plaintiff's motion, which indicated if opposition was filed, oral
argument under Rule 1:6-2(d) was requested.
Plaintiff's request should have been granted as of right, and defendant had
a reasonable right to expect argument would be provided. R. 1:6-2(d); see also
Raspantini v. Arocho, 364 N.J. Super. 528, 531 (App. Div. 2003). If a "trial
court decides [a summary judgment] motion on the papers despite a request for
oral argument, the . . . court should set forth in its opinion its reasons for
disposing of the motion . . . on the papers in its opinion." LVNV Funding,
L.L.C. v. Colvell, 421 N.J. Super. 1, 5 (App. Div. 2011).
Although as noted, we reverse and remand based upon the court's
insufficient statement of reasons. In its decision following remand, the court
should explain its reasons for deciding the motion on the papers. That said, we
remind the court it has the discretion to allow oral argument before complying
with Rule 1:7-4(a).
A-0457-19T3 6 II
Defendant seeks vacation of the August 28 order denying reconsideration
of the July 26 summary judgment order. Given our decision to reverse and
remand the summary judgment order, we need not address defendant's challenge
to the reconsideration order. However, for the sake of completeness and to
provide further direction to the court on remand, we will briefly do so.
First, defendant contends the court's August 28 order was "barely
compliant with R[ule] 1:7-4[(a)]" because it stated the reconsideration motion
was "DENIED for reasons set forth in the opposition papers." Second, he
contends the court abused its discretion in refusing to grant his oral argument
request. Defendant's concerns reflect procedural actions by the court which fall
short of our rules of court.
We take a stronger view than defendant did in contending the court was
"barely compliant with R[ule] 1:7-4[(a).]" We conclude the court's statement
that denial of the reconsideration motion was "for reasons set forth in the
opposition papers" did not comply with Rule 1:7-4(a) because the court did not
set forth its factual findings and legal conclusions. Judge Fuentes addressed this
same situation in Estate of Doerfler v. Fed. Ins. Co., forcefully stating the
requirements of Rule 1:7-4 (a) "are unambiguous and cannot be carried out by
A-0457-19T3 7 the motion judge by a nebulous allusion to 'the reasons set forth in defendant[s]'
motion papers.'" 454 N.J. Super. 298, 302 (App. Div. 2018) (alteration in
original).
With respect to the court not granting defendant's request for oral
argument, we repeat the point made earlier that the court is required under Rule
1:6-2(d) to indicate in its opinion why oral argument was not granted. LVNV
Funding, L.L.C., 421 N.J. Super. at 5. The court did not do so and must comply
on remand.
III
Finally, as to the October 2 order – by a different court – granting
plaintiff's motion to enforce litigant's rights because defendant failed to respond
to an information subpoena, defendant contends it was entered in error because
the information subpoena was served on his attorney and not him as required by
Rule 6:7-2(b). Plaintiff claims service on defendant's attorney was proper under
Rule 1:5-1(a). Defendant is correct.
Rule 1:5-1(a) has general application to service in civil actions but
acknowledges its requirements may not apply where another court rule states
otherwise. It provides:
In all civil actions, unless otherwise provided by rule or court order, orders, judgments, pleadings subsequent to
A-0457-19T3 8 the original complaint, written motions (not made ex parte), briefs, appendices, petitions and other papers except a judgment signed by the clerk shall be served upon all attorneys of record in the action and upon parties appearing pro se . . . .
[R. 1:5-1(a) (emphasis added).]
Rule 6:7-2(b)(1) is one such rule that provides different service requirements
regarding an information subpoena. Specifically, it provides: "An information
subpoena may be served upon the judgment debtor, without leave of court,
accompanied by an original and copy of written questions and a prepaid,
addressed return envelope." R. 6:7-2(b)(1). Because plaintiff did not serve the
information subpoena upon defendant, the judgment debtor, the motion to
enforce litigants' rights should not have been granted.
Reversed and remanded in part for proceedings consistent with this
decision. We do not retain jurisdiction.
A-0457-19T3 9