(1) identify himself, state that he is confirming or correct
ing location information concerning the consumer, and, only if expressly requested, identify his employer;
(a) COMMUNICATION WITH THE CONSUMER GENERALLY. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—
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(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the
consumer. In the absence of knowledge of circumstances to the contrary, a debt collector shall assume that the convenient time for communicating with a consumer is after 8 o’clock antimeridian and before 9 o’clock postmeridian, local time at the consumer’s location;
(c) CEASING COMMUNICATION. If a consumer notifies a
debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer, the debt collector shall not communicate further with the consumer with respect to such debt, except— that creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or collector or creditor intends to invoke a specified remedy. tion shall be complete upon receipt.
§ 806. Harassment or abuse
A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
(1) The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
(2) The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
(3) The publication of a list of consumers who allegedly refuse to pay debts, except to a consumer reporting agency or to persons meeting the requirements of section 603(f) or 604(3)
If such notice from the consumer is made by mail, notifica
(d) For the purpose of this section, the term "consumer" includes the consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.
§ 805. Communication in connection with debt collection
Any debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall—
Creditors cannot harass you when attempting to collect a debt.
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collection agencies are calling you at home and/or at work
your payments are more than 30 days behind on more than one bill
you have had property repossessed (such as a vehicle)
your mortgage lender has threatened or started foreclosure proceedings against your home
People who have had their wages garnished can especially benefit from a bankruptcy because the bankruptcy will stop the garnishment and could potentially help you get some of the garnished money back.
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EVE C. PASTERNAK and STEVEN PASTERNAK, Plaintiffs-Appellants, v. PNC BANK, N.A., PNC BANK, Defendant-Respondent, and MATTELMAN, WEINROTH & MILLER, PC; GEORGE J WEINROTH; JOHN C. MILLER, III; MARTIN WEINBERG, Defendants.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Plaintiffs Steven and Eve Pasternak appeal from the August 12, 2013 Law Division order granting defendant PNC Bank, N.A.'s (PNC) motion for summary judgment and dismissing plaintiff's complaint. We affirm.
We derive the following facts and procedural history from the motion record. Plaintiffs formerly held title to a residence in Livingston, New Jersey. The property was subject to two mortgages held by United Trust Bank (United). Plaintiffs defaulted on the mortgages and United commenced foreclosure proceedings. On June 15, 2005, the Chancery Division entered a final judgment of foreclosure of $222,366.58 against plaintiffs.
PNC later acquired the mortgages, but did not move to amend the judgment or seek post-judgment costs. Plaintiffs continued to live in the home. PNC paid the taxes and other carrying costs on the property. PNC sent monthly late payment notices to plaintiffs from the time it acquired the mortgages, but plaintiffs failed to pay the judgment. After PNC scheduled a sheriff's sale, plaintiff Steven Pasternak filed an unsuccessful Chapter 13bankruptcy petition. The sheriff's sale was thereafter postponed nine additional times.
On February 29, 2008, PNC gave plaintiffs an incorrect payoff figure of $284,194.81 to satisfy the judgment. The parties soon realized that this amount was higher than the actual payoff figure. In the course of seeking another postponement of the sheriff's sale, this time based on their receipt of the incorrect payoff figure, plaintiffs advised the Chancery Division that they had received a $495,000 refinancing commitment from a bank and wished to pay the judgment and retain the property. However, they told the court that they had left the signed documentation verifying this commitment at home. The court adjourned the proceeding so that plaintiffs could go home over the lunch break, retrieve the documentation, and bring it back to court. Plaintiffs left the courthouse and never returned. The court denied plaintiffs' postponement request and the sheriff's sale was held on March 11, 2008.
Plaintiffs then filed a voluntary Chapter 7bankruptcy petition, listing PNC's secured claim at $286,000. On April 14, 2008, the bankruptcy court dismissed plaintiffs' claim with prejudice "as a bad faith filing."
Plaintiffs refused to vacate the property. A writ of possession was issued but, two days before the writ was to be executed, plaintiffs filed a complaint in federal district court, seeking to enjoin their eviction because PNC had earlier provided them with an incorrect payoff figure. On November 13, 2008, the district court denied plaintiffs' motion for a stay of eviction and, on February 19, 2009, the court dismissed plaintiffs' complaint.
On March 9, 2010, plaintiffs filed a six-count complaint against PNC and other defendants[1] in the Law Division. Alleging that PNC provided them with an incorrect payoff figure in an attempt to wrongfully take their residence, plaintiffs sought $1.5 million in damages against PNC for intentional misrepresentation or fraud (count one); violations of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 to -200 (count two); violations of the Fair Debt Collection Practices Act, 15 U.S.C.A. §§ 1692 to -1692p (count three); breach of the duty of good faith and fair dealing (count four); negligence (count five); and usury (count six).
PNC removed the case to the federal district court, which dismissed count three, and returned the matter to the Law Division. On April 23, 2012, Judge Carolyn E. Wright commenced a bench trial concerning plaintiffs' remaining claims. After three days of testimony, the parties agreed to submit summary judgment motions to the court for consideration. On August 12, 2013, Judge Wright granted PNC's motion for summary judgment and dismissed plaintiffs' complaint with prejudice.
In a thorough fifteen-page written opinion, Judge Wright fully explained the reasons underlying her decision. After painstakingly reviewing the parties' arguments, the judge found that plaintiffs' claims concerning the incorrect payoff figure were barred by the common law litigation privilege, which bars claims premised on "`any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.'" Hawkins v. Harris, 141 N.J. 207, 216 (1995) (quoting Silberg v. Anderson, 50 Cal. 3d 205, 212 (1990)). The judge found that all four of these factors were met in this case and that "[e]xtensive case law demonstrates that identical claims based upon alleged improper payoff figures have regularly been dismissed."[2]
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Judge Wright also found that plaintiffs' claims concerning the incorrect payoff figure were barred by res judicata. The judge noted that plaintiffs' argument that PNC deliberately falsified the payoff figure had been rejected by: (1) the Chancery Division when it permitted the sheriff's sale to proceed in March 2008; (2) the bankruptcy court when it dismissed plaintiffs' Chapter 7 petition in April 2008; and (3) the federal district court when it denied plaintiffs' motion to enjoin their eviction in November 2008. Thus, the judge found that "[t]he elements of res judicata were therefore met and [p]laintiffs' claims are barred."
Finally, the judge found that plaintiffs failed to "establish fraud against PNC because the discrepancy [in the payoff figure] was immaterial [and] there is no proof that they reasonably relied upon it." Plaintiffs represented to the Chancery Division that they had access to $495,000 to pay the judgment, which exceeded the payoff figure that PNC provided. Thus, plaintiffs could not demonstrate they sustained any damages as a result of PNC's mistake. This appeal followed.
On appeal, plaintiffs raise the following contentions:
POINT I
JUDGE WRIGHT'S RULING THAT PNC BANK MAY FABRICATE, DOUBLE-BILL, AND OVERSTATE THE AMOUNT DUE TO SETTLE A DEBT PRIOR TO A SHERIFF SALE IS CONTRARY TO RES JUDICATA, COLLATERAL ESTOPPEL, LAW OF THE CASE, AND NEW JERSEYLAW.
New Jersey Consumer Fraud Act, N.J.S.A. 56:8-1 [to -200.]
Summary Judgment Is Appropriate On The Amount of Damages[.]
POINT II
JUDGE WRIGHT'S ERRONEOUS DECISION IS CONTRARY TO RES JUDICATA, COLLATERAL ESTOPPEL, THE LAW OF THE CASE[,] AND NEW JERSEYLAW.
POINT III
JUDGE WRIGHT'S ERRONEOUS DECISION NOT ONLY LEGALIZES FRAUD, BUT COULD IMPOSE A FIDUCIARY DUTY UPON THE BANK AND ITS ATTORNEYS TO DEFRAUD THE COURTS AND NEW JERSEY RESIDENTS.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). "Summary judgment must be granted if `the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show . . . there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
We have considered plaintiffs' contentions in light of the record and applicable legal principles and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Wright properly granted summary judgment to PNC, and affirm substantially for the reasons expressed in her thoughtful and comprehensive August 12, 2013 written opinion.
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Affirmed.
[1] Plaintiffs' claims against the other defendants were subsequently dismissed and these defendants are not parties to this appeal.
Some property is protected, or exempt from your creditors' claims, and you get to keep it. When determining what is considered exempt, many states allow you to choose and use the state's definition of exempt or the list set out by federal law. Some states require you to use the state's list. Be sure to check your state's laws to find out what applies to your state.
A chapter 7
case begins with the debtor filing a petition with the bankruptcycourt serving
the area where the individual lives or where the business debtor is organized
or has its principal place of business or principal assets. (3) In addition to
the petition, the debtor must also file with the court: (1) schedules of assets
and liabilities; (2) a schedule of current income and expenditures; (3) a
statement of financial affairs; and (4) a schedule of executory contracts and
unexpired leases. Fed. R. Bankr. P. 1007(b). Debtors must also provide the
assigned case trustee with a copy of the tax return or transcripts for the most
recent tax year as well as tax returns filed during the case (including taxreturns for prior years that had not been filed when the case began). 11 U.S.C.
§ 521. Individual debtors with primarily consumer debts have additional
document filing requirements. They must file: a certificate of credit counseling and a copy of any debt repayment plan developed through credit counseling; evidence of payment from employers, if any, received 60 days before
filing; a statement of monthly net income and any anticipated increase in
income or expenses after filing; and a record of any interest the debtor has in
federal or state qualified education or tuition accounts. Id. A husband and
wife may file a joint petition or individual petitions. 11 U.S.C.
§ 302(a). Even if filing jointly, a husband and wife are subject to all
the document filing requirements of individual debtors. (The Official Forms may
be purchased at legal stationery stores or download. They are
not available from the court.)
The courts must charge a $245 case filing fee, a $75 miscellaneous administrative fee, and
a $15 trustee surcharge. Normally, the fees must be paid to the clerk of the
court upon filing. With the court's permission, however, individual debtors may
pay in installments. 28 U.S.C. § 1930(a); Fed. R. Bankr. P. 1006(b);
BankruptcyCourt Miscellaneous Fee Schedule, Item 8. The number of installments
is limited to four, and the debtor must make the final installment no later
than 120 days after filing the petition. Fed. R. Bankr. P. 1006. For cause
shown, the court may extend the time of any installment, provided that the last
installment is paid not later than 180 days after filing the petition. Id. The
debtor may also pay the $75 administrative fee and the $15 trustee surcharge in
installments. If a joint petition is filed, only one filing fee, one administrative
fee, and one trustee surcharge are charged. Debtors should be aware that
failure to pay these fees may result in dismissal of the case. 11 U.S.C.
§ 707(a).
If the
debtor's income is less than 150% of the poverty level (as defined in the
Bankruptcy Code), and the debtor is unable to pay the chapter 7 fees even in
installments, the court may waive the requirement that the fees be paid. 28
U.S.C. § 1930(f).
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In order to
complete the Official Bankruptcy Forms that make up the petition, statement of
financial affairs, and schedules, the debtor must provide the following
information:
A list of all
creditors and the amount and nature of their claims;
A detailed
list of the debtor's monthly living expenses, i.e., food, clothing, shelter,
utilities, taxes, transportation, medicine, etc.
Married
individuals must gather this information for their spouse regardless of whether
they are filing a joint petition, separate individual petitions, or even if
only one spouse is filing. In a situation where only one spouse files, the
income and expenses of the non-filing spouse are required so that the court,
the trustee and creditors can evaluate the household's financial position.
Among the
schedules that an individual debtor will file is a schedule of
"exempt" property. The Bankruptcy Code allows an individual debtor(4) to protect some property from the claims of creditors because it is exempt
under federal bankruptcylaw or under the laws of the debtor's home state. 11
U.S.C. § 522(b). Many states have taken advantage of a provision in the
Bankruptcy Code that permits each state to adopt its own exemption law in place
of the federal exemptions. In other jurisdictions, the individual debtor has
the option of choosing between a federal package of exemptions or the
exemptions available under state law. Thus, whether certain property is exempt
and may be kept by the debtor is often a question of state law. The debtorshould consult an attorney to determine the exemptions available in the state
where the debtor lives.
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Filing a
petition under chapter 7 "automatically stays" (stops) most
collection actions against the debtor or the debtor's property. 11 U.S.C.
§ 362. But filing the petition does not stay certain types of actions
listed under 11 U.S.C. § 362(b), and the stay may be effective only for a
short time in some situations. The stay arises by operation of law and requires
no judicial action. As long as the stay is in effect, creditors generally may
not initiate or continue lawsuits, wage garnishments, or even telephone calls
demanding payments. The bankruptcy clerk gives notice of the bankruptcy case to
all creditors whose names and addresses are provided by the debtor.
Between 21
and 40 days after the petition is filed, the case trustee (described below)
will hold a meeting of creditors. If the U.S. trustee or bankruptcyadministrator (5) schedules the meeting at a place that does not have regular
U.S. trustee or bankruptcy administrator staffing, the meeting may be held no
more than 60 days after the order for relief. Fed. R. Bankr. P. 2003(a). During
this meeting, the trustee puts the debtor under oath, and both the trustee and
creditors may ask questions. The debtor must attend the meeting and answer
questions regarding the debtor's financial affairs and property. 11 U.S.C.
§ 343. If a husband and wife have filed a joint petition, they both must
attend the creditors' meeting and answer questions. Within 10 days of the
creditors' meeting, the U.S. trustee will report to the court whether the case
should be presumed to be an abuse under the means test described in 11 U.S.C.
§ 704(b).
It is
important for the debtor to cooperate with the trustee and to provide any
financial records or documents that the trustee requests. The Bankruptcy Code
requires the trustee to ask the debtor questions at the meeting of creditors to
ensure that the debtor is aware of the potential consequences of seeking a discharge
in bankruptcy such as the effect on credit history, the ability to file a
petition under a different chapter, the effect of receiving a discharge, and
the effect of reaffirming a debt. Some trustees provide written information on
these topics at or before the meeting to ensure that the debtor is aware of
this information. In order to preserve their independent judgment, bankruptcyjudges are prohibited from attending the meeting of creditors. 11 U.S.C.
§ 341(c).
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In order to
accord the debtor complete relief, the Bankruptcy Code allows the debtor to
convert a chapter 7 case to a case under chapter 11, 12, or 13 (6) as long as
the debtor is eligible to be a debtor under the new chapter. However, a
condition of the debtor's voluntary conversion is that the case has not
previously been converted to chapter 7 from another chapter. 11 U.S.C.
§ 706(a). Thus, the debtor will not be permitted to convert the case
repeatedly from one chapter to another.
It is a common myth that bankruptcy will "ruin" your credit. The truth is that after your bankruptcy is compete, you will have no unpaid debt on your credit report and you will now be able to rebuild your credit through careful financial management and paying your bills in a timely manner. While you may face increased interest rates on any new credit cards or car loans, if you pay them off regularly and show your creditors you are being responsible financially, your credit score can improve dramatically within just a few years. Every person's financial history is unique and you should speak to an experienced northern New Jerseybankruptcylawyer from Bergen, Hudson and Passaic County like Rafael Gomez to get more information on what to expect after you are finished with your bankruptcy.
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We have successfully helped hundreds and hundreds of our clients eliminate their debt and start building a new financial future for themselves and their families through bankruptcy. Rafael Gomez is dedicated to helping individuals and business owners protect their valuable assets and get relief from the harassment of collection agencies while using bankruptcy to either discharge all their unsecured debt through chapter 7 or reorganize and pay off their debt over time with chapter 13. When you come to speak with Rafael Gomez for your free bankruptcyconsultation, we will review your finances and advise you on what your best options are.
Another step in restoring your good credit after bankruptcy involves reviewing your various credit reports to make sure that any remaining derogatory comments are removed. While there are companies that advertise to do this for you, it is something you can do yourself. There are other methods of improving your credit rating including secured credit cards and getting a co-signed loan with another person who has good credit. Making the payments and paying off such loans reflects well on both party's credit reports. To discuss what you can expect after your bankruptcy, speak to an experienced bankruptcy lawyer like Rafael Gomez.
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