CHAPTER 13 ARTICLE - BANKRUPTCY LAWYER IN HUDSON COUNTY NJ (201) 646-3333

 

RICHARD FELLOWS, Plaintiff-Appellant,
v.
PATTI E. FELLOWS n/k/a PATTI E. GENARD, Defendant-Respondent.No. A-1798-09T2.
Superior Court of New Jersey, Appellate Division.

Argued November 9, 2010.Decided August 1, 2011.

Thomas G. Smith argued the cause for appellant.

Mona R. Raskin argued the cause for respondent.

Before Judges Carchman and Graves.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

In this post-judgment matrimonial matter, plaintiff Richard Fellows appeals from an order dated November 4, 2009, that granted a motion by defendant Patti Genard to enforce the parties' property settlement agreement (PSA). The order provides that plaintiff is solely responsible for a debt to the Internal Revenue Service (IRS) the parties incurred prior to the divorce. The order also requires plaintiff to indemnify and reimburse defendant for the monies deducted from her wages as a result of an IRS levy and to obtain a life insurance policy with defendant as beneficiary in the amount of $250,000.

On appeal, plaintiff contends "the findings of the trial court were not sufficiently supported by the facts." Based on our review of the record and the applicable law, we are satisfied that plaintiff's arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We therefore affirm with only the following comments.

The parties were married in 1988, separated in December 1999, and a judgment of divorce (JOD) was entered on December 13, 2001. The JOD incorporated a PSA signed by both parties on September 24, 2001. In Article 19 of the PSA, the parties agreed that defendant would receive the former marital residence located at Cape May Beach together with her pension and tax deferred annuity, and she relinquished all right, title, and interest in plaintiff's business, known as Fellows Family Chiropractic Center.

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In Article 19.3 of the PSA, the parties acknowledged that the IRS debt was acquired during the marriage and each agreed to "separately [file] an Offer of Compromise Form with the IRS." If the IRS accepted defendant's offer of compromise, plaintiff agreed to pay it. As originally drafted, Article 19.4 stated that "[i]n the event the Offer of Compromise is not accepted by the IRS the parties agree to mediate this issue." However, that language was crossed out and replaced with the following handwritten substitution that was initialed by the parties: "The husband agrees to assume the tax liability for those years that returns were filed jointly. The wife agrees to cooperate in every way possible to reduce the amount of this liability." In addition, it was agreed that defendant would "file for Chapter 13 Bankruptcy," and plaintiff would "make all Chapter 13 payments directly to the Trustee through June 30, 2002."

Defendant filed a Chapter 13 bankruptcy petition in 2001, and both parties filed offers in compromise that were rejected by the IRS. In April 2007, plaintiff filed a Chapter 7 bankruptcy petition listing, among other obligations, $322,562 in debt to the IRS for income taxes due from 1994 through 2005; "Assorted Employer Taxes" from 1996 through 2005 in the amount of $41,073; and "Employer 940 and 941 Tax Liability" from 1995 through 2003 in the amount of $129,611. Plaintiff was granted a Chapter 7 discharge on August 3, 2007.

When defendant learned of the discharge, she moved to reopen plaintiff's bankruptcy proceeding. In a certification in support of her motion, defendant stated that she did not receive notice of the bankruptcy proceeding or plaintiff's discharge, and, based on the PSA, she demanded reimbursement for any monies she was required to pay the IRS. On February 11, 2009, the bankruptcy court entered a consent order stating that any obligation found to be due under the parties' JOD or PSA "was not discharged by the bankruptcy."

Following the entry of the consent order, defendant moved before the Superior Court to enforce the terms of the PSA. In her amended notice of motion, defendant sought an order requiring plaintiff to: (1) reimburse her for the monies that were being deducted from her paychecks as a result of an IRS levy; (2) pay "an amount that will retire the [IRS] debt within a reasonable period of time"; and (3) "complete an insurance application and submit to a medical examination . . . so that she [could] obtain a life insurance policy in the amount of $500,000.00."

The trial court initially heard oral argument on June 12, 2009, but the matter was adjourned to obtain additional information from both parties. When the parties returned to court on October 16, 2009, plaintiff argued that there was no equity in the former marital home in 2002, and that defendant should have eliminated the IRS debt by converting her bankruptcy proceeding "from a 13 to a 7." Plaintiff also argued that defendant "should be responsible for whatever penalties have accrued since 2002."

In an oral decision, the motion judge found there was "a clear and unambiguous assumption of the tax liability" by plaintiff in the PSA and that he was solely responsible for the entire tax debt, including interest and penalties. The court also ordered plaintiff to reimburse defendant for the monies deducted from her wages as a result of the IRS levy, and it directed plaintiff to obtain a life insurance policy in the amount of $250,000. The trial court's decision was memorialized in an order dated November 4, 2009.

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"Settlement of litigation ranks high in our public policy." Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div.) certif. denied, 35 N.J. 61 (1961)). Therefore, the use of voluntary agreements to resolve marital controversies is "`generally favored by the courts as a peaceful means of terminating marital strife and discord so long as they are not against public policy.'" Konzelman v. Konzelman, 158 N.J. 185, 194 (1999) (quoting Gordon v. Gordon, 675 A.2d 540, 544 (Md. 1966)); see also Weishaus v. Weishaus, 180 N.J. 131, 143 (2004). Although the "incorporation of a PSA into a divorce decree does not render it immutable," the agreement is enforceable so long as it is "found to be fair and just." Eaton v. Grau, 368 N.J. Super. 215, 224 (App. Div. 2004).

In this case, the trial court enforced the clear terms of the PSA, and its findings and conclusions are adequately supported by substantial credible evidence in the record. Cesare v. Cesare, 154 N.J. 394, 412 (1998). Accordingly, we find no error or abuse of discretion, and we affirm substantially for the reasons stated by the motion judge in his oral decision on October 16, 2009.

Affirmed.

WAGE GARNISHMENT ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

 

GARDEN STATE ANESTHESIA — RARITAN BAY, Plaintiff,
v.
Ketty SIBILLY, Defendant.

DOCKET No. DC-003294-11.
Superior Court of New Jersey, Law Division, Mercer County. Special Civil Part.

Decided: July 27, 2017.

131Raymond Meisenbacher, Bridgewater, attorney for plaintiff (Raymond Meisenbacher and Sons, PC, attorneys).

Ketty Sibilly, defendant, pro se.

ANKLOWITZ, J.S.C.

The legal issue here is whether child support is exempt from levy, attachment and execution on a money judgment against a parent.

Plaintiff filed a complaint for an unpaid medical bill on April 7, 2011. Judgment was entered by default on June 7, 2017, in the amount of $1871.64 plus costs and statutory attorney's fees. N.J.S.A. 22A:2-42. On April 14, 2017, a Writ of Execution Against Goods and Chattels was issued. The Writ gave credit for payments made and showed a total balance due in the amount of $1,653.38.

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My name is Ryan Gonzales and I hired my attorney Rafael Gomez to help me in the bankruptcy case, he held me throughout the whole process step-by-step and he was a able to help me with the procedures and going to court I want to thank them. If you need a lawyer I recommend him go check out his website, go to his office, he'll take care of you. Thank you

On June 9, 2017, a court officer levied on an account of defendant at JP Morgan Chase. The court officer gave notice of the levy by affidavit. Plaintiff filed a motion for turnover of funds on June 27, 2017. On June 30, 2017, defendant filed an objection to the levy. The parties are thus joined in opposition to each other's positions.

On July 27, 2017, defendant testified that her supporting documents were sent to plaintiff's counsel on July 20, 2017. Notice was given to plaintiffs counsel of the hearing, and plaintiff waived its appearance as is permitted under Rule 4:59-1(e).

No statute expressly covers child support as a basis for an objection to a levy, but an analysis of the relevant law warrants a conclusion that child support cannot be the subject of a levy from an ordinary money judgment against a parent.

The law on enforcing judgments makes only a judgment debtor liable. N.J.S.A. 2A:17-15, 16, 17, and 18. Unless there is some exception, like an amercement action, N.J.S.A. 2A:18-29 and N.J.S.A. 40A:9-109, or an action against an employer that refuses to implement a wage garnishment, N.J.S.A. 2A:17-64, the judgment can only be enforced against the judgment debtor and not the debtor's children, friends or others.

"The right to child support belongs to the child and cannot be waived by the custodial parent." Pascale v. Pascale, 140 N.J. 583, 591, 660 A.2d 485 (1995) (internal citations omitted). If a parent receives child support for his or her child the money belongs to the child and cannot be used to satisfy a judgment against the parent. Courts have traditionally taken a parens patriae role in protecting the best interest of the child on issues of child support. Faherty v. Faherty, 97 N.J. 99, 110, 477 A.2d 1257 (1984).

The Legislature has expressed the intent to enforce child support orders. For 132example, wage garnishments served on an employer for child support take super priority over money judgments. N.J.S.A. 2A:17-52. In addition, N.J.S.A. 2A:17-56.8 provides a host of enforcement mechanisms for child support.

Parents are entitled to the "services and earnings" of their children. N.J.S.A. 9:1-1. Child support is typically paid by the other parent from the other parent's services and earnings. In this case the child support order shows the calculation of child support was based on each parent's earnings.

When an adult parent enters into a contract, the contract is ordinarily enforceable like any other contract entered into by an adult. Allgor v. Travelers Ins. Co., 280 N.J. Super. 254, 262, 654 A.2d 1375 (App. Div. 1995). A contract entered into by a minor is not ordinarily enforceable because a minor can disaffirm the contract. Ibid. However, a minor that enters into a contract for student loans and financial aid is considered to be subject to a binding contract. N.J.S.A. 9:17A-2.

Money owed to someone else, including by a parent, cannot be pursued against an innocent owner, including a child. Unless there is some way to show that a child is liable on a debt, which is a covered type of expense for which the judgment or order for child support is meant, that money is not subject to levy because there is already an order or judgment directing the use of that money for the benefit of the child.

Notably, the I.R.S. does not levy on money due and owing for child support. 26 U.S.C. § 6334 lists a number of exemptions from levy for taxes. Subsection (a)(8) exempts:

Judgments for support of minor children. If the taxpayer is required by judgment of a court of competent jurisdiction, entered prior to the date of levy, to contribute to the support of his minor children, so much of his salary, wages, or other income as is necessary to comply with such judgment.

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Defendant advised that the levy was on a checking account and a savings account. Two transfers from checking to savings totaled $825, and the two transfers were made within a few days of the payment of child support reflected on the probation departments child support account statement. The two child support payments were $515.67 each. Defendant testified that the transferred money was child support money. The remainder of the money in the savings account was either interest or from an unknown source. Whether child support money should or should not be traced was not a contested issue before the court. That issue is left for another day.

At the time of the levy on the checking account on June 9, 2017, the last three deposits were from payroll and other sources not claimed to be exempt from levy. Those amounts more than covered the amount of the levy several times over. Defendant expressly denied having a wage garnishment on her wages deposited into the checking account.

In addition to the strong policy support that child support is for the benefit of the child, child support money is exempt from levy because the child is an innocent third party and not a judgment debtor. The $825 in the savings account is child support that is exempt from the levy and must be released. The remainder of the money is subject to levy and the motion to turnover is granted as to $302.62.

The objection to levy is granted in part and denied in part. The motion to turnover is granted in part and denied in part.

BANKRUPTCY ARTICLE - LAWYER IN HACKENSACK NEW JERSEY (201) 646-3333

  

LILIANA WILSON, Plaintiff-Respondent,
v.
JAMES WILSON, Defendant-Appellant.No. A-3867-10T2.Superior Court of New Jersey, Appellate Division.Argued December 13, 2011.Decided October 23, 2012.

Jack Dashosh argued the cause for appellant.

Tadd J. Yearing argued the cause for respondent (Townsend, Tomaio & Newmark, L.L.C., attorneys; Mr. Yearing, on the brief).

Before Judges Carchman and Nugent.

NOT FOR PUBLICATION

PER CURIAM.

Defendant James Wilson appeals from parts of a January 28, 2011 Family Part order that: adjudicated defendant in violation of litigant's rights because of his partial non-compliance with the parties' Supplemental Judgment of Divorce (SJOD); compelled him to make certain payments to plaintiff as required by the SJOD and previous court orders; entered judgment against him for counsel fees that the court had previously ordered him to pay to plaintiff; and required him to communicate with plaintiff about certain issues concerning their child. Defendant also appeals from the denial of his motion for reconsideration. The parties' dispute concerning the building in Romania appears to be moot as the result of bankruptcy proceedings. Otherwise, we affirm.

The parties married on October 23, 1993, and were divorced on April 14, 2009, when the court entered a Final Judgment of Divorce. The court entered a SJOD on June 1, 2010. Among its terms, the SJOD required the parties to continue to attempt to sell a boat they had listed for $139,900, and to divide the net proceeds upon its sale; provided that defendant would sell his business and its European counterparts, and, upon its sale, pay to plaintiff thirty-five percent of the net proceeds; and required that defendant sell a commercial building in Romania and pay to plaintiff an equal share of the net sale proceeds. The SJOD also required defendant to pay plaintiff annual alimony of $30,000 for seven years, provided that the parties would share joint legal custody of their child, denoted defendant as the parent of primary residence, and established a parenting time schedule, as well as child support obligations.

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On October 23, 2009, after considering cross-motions the parties had filed, the trial court found defendant in violation of litigant's rights for not adhering to the parenting time schedule. Among other forms of relief, the court directed defendant to pay $7,075 representing plaintiff's counsel fees.

Additional motion practice ensued. In December 2010, plaintiff filed another motion to enforce litigant's rights. The court granted that motion in an order entered on January 28, 2011, supported by a written statement of reasons. Defendant filed a motion for reconsideration, which the court denied on March 18, 2011. Defendant appealed from those orders.

Following the filing of defendant's notice of appeal, plaintiff filed a Chapter 7 bankruptcy petition. It appears that during the bankruptcy proceeding, the trustee accepted defendant's offer to pay $35,000 to buy out plaintiff's interest in the building in Romania.^[1]

Defendant raises the following issues on appeal:

THE COURT ERRED BY NOT DELETING THE FOLLOWING PARAGRAPHS OF ITS JANUARY 28, 2011 ORDER, SPECIFICALLY:

1) PARAGRAPH 1 OF THE ORDER WHICH FOUND DEFENDANT IN VIOLATION OF LITIGANT'S RIGHTS FOR FAILURE TO COMPLY WITH THE SUPPLEMENTAL JUDGMENT OF DIVORCE (SJOD) FILED ON JUNE 1, 2010, AND THE COURT ORDERS OF OCTOBER 23, 2009, MARCH 12, 2010 AND JUNE 28 2010, WHICH REQUIRED DEFENDANT TO NOTIFY PLAINTIFF IN WRITING OF THEIR SON[`s] EXTRA CURRICULAR SCHOOL ACTIVITIES WITHOUT ANY FACTUAL BASIS FOR THE SAME.

2) THE PORTION OF PARAGRAPH 3 THAT REQUIRED DEFENDANT TO PROVIDE PLAINTIFF WITH AN UPDATED CASE INFORMATION STATEMENT INCLUDING HIS 2010 W-2'S, 1099'S AND 2009 FEDERAL, STATE AND BUSINESS TAX RETURNS DESPITE THE FACT THAT COMMENCING FEBRUARY 11, 2011 DEFENDANT HAS PAID PLAINTIFF THE SUM OF $2,000 PER MONTH TOWARD THE $49,919.45 THE COURT AWARDED PLAINTIFF AS HER SHARE OF DEFENDANT'S BUSINESS.

3) PARAGRAPH 4 OF THE ORDER WHICH REQUIRED DEFENDANT TO PURCHASE PLAINTIFF'S INTEREST IN THE ROMANIAN REAL ESTATE AND WHICH REQUIRED DEFENDANT TO PROVIDE AN UPDATED CASE INFORMATION STATEMENT.

4) PARAGRAPH 8 OF THE ORDER WHICH REQUIRED DEFENDANT TO REIMBURSE PLAINTIFF THE SUM OF $4,000 REPRESENTING ONE-HALF OF THE TOTAL COST PAID BY THE PARTIES TO ATTEND THE OVERCOMING BARRIERS PROGRAM IN JULY 2010.

5) PARAGRAPH 9 OF THE ORDER WHICH REQUIRED DEFENDANT TO PAY PLAINTIFF THE SUM OF $7,075 IN COUNSEL FEES AWARDED TO HER IN THE OCTOBER 23, 2009 COURT ORDER DESPITE THE FACT THAT THERE WAS NO STATEMENT REGARDING THE BASIS FOR AWARDING THE SAME AND CONTRARY TO THE SUPPLEMENTAL JUDGMENT OF DIVORCE WHICH WAIVED ALL OF THE PARTIES' CLAIMS FOR LEGAL FEES.

6) PARAGRAPH 13 OF THE ORDER WHICH DIRECTS DEFENDANT TO NOTIFY PLAINTIFF WITHIN MINUTES OF MEDICAL EMERGENCIES INVOLVING [A.] AND THAT DEFENDANT REFRAIN FROM MAKING NEGATIVE COMMENTS TO [A.] REGARDING PLAINTIFF WITHOUT ANY FACTUAL BASIS FOR THE SAME.

7) THE COURT IMPROPERLY DETERMINED THAT PLAINTIFF IS ENTITLED TO RECEIVE ONE-HALF THE VALUE OF THE ROMANIAN REAL ESTATE AS OF APRIL 14, 2009 BECAUSE OF DEFENDANT'S FAILURE TO LIST THE PROPERTY FOR SALE, WHICH WAS FACTUALLY INCORRECT AND IS CONTRARY TO THE JUNE 1, 2010 JUDGMENT OF DIVORCE.

We first address the effect of the bankruptcy proceeding on the issue raised by defendant concerning plaintiff's interest in the building in Romania. Under federal law, when a debtor files a bankruptcy petition, an estate is created and the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case." 11 U.S.C.A. § 541(a)(1). Thus, plaintiff's equitable interest in the building in Romania was part of the bankruptcy estate. See Reid v. Reid, 310 N.J. Super. 12, 20 (App. Div.), certif. denied, 154 N.J. 608 (1998); Colucci v. Colucci, 251 N.J. Super. 73, 78 (Ch. Div. 1991). Generally, "[t]he trustee, after notice and a hearing, may... sell... property of the estate...." 11 U.S.C.S. § 363(b)(1). That is precisely what happened in this case. The sale appears to render moot defendant's issue concerning plaintiff's interest.

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In her supplemental brief, plaintiff argues that the bankruptcy trustee sold her equitable interest in the building in Romania for considerably less than its actual value. Plaintiff has not argued that she was denied a fair opportunity in the bankruptcy proceeding to contest the sale of her interest or challenge the building's value, however. Nor has she attempted to demonstrate how the outcome of the bankruptcy proceeding would have differed had her interest been sold for a greater sum. Under those circumstances, we deem the narrow issue raised by defendant on this appeal — that the trial judge erred by requiring defendant to purchase plaintiff's interest in the Romanian real estate — moot.

After considering defendant's remaining arguments in light of the record and applicable law, we affirm, substantially for the reasons explained by the trial court in the written statements supporting the January 28 and March 18, 2011 orders.

In summary, we deem the issue concerning defendant buying out plaintiff's interest in the Romanian real estate to be moot. We affirm in all other respects.

[1] During oral argument we permitted plaintiff to submit a supplemental letter brief to address the effect of the bankruptcy proceedings on plaintiff's right to equitable distribution of the property in Romania. Plaintiff and defendant both submitted supplemental letter briefs. Although it appears that the bankruptcy trustee disposed of plaintiff's interest in the property, the documents submitted by the parties are uncertified and incomplete.

MORTGAGE ARTICLE - BANKRUPTCY ATTORNEY IN HUDSON COUNTY NJ (201) 646-3333

 

EMC MORTGAGE CORPORATION, Plaintiff-Respondent,
v.
MATTHEW FITZROY, Defendant, and
PATRICE SPRINGETTE, Defendant-Appellant.No. A-2884-11T1.
Superior Court of New Jersey, Appellate Division.

Argued telephonically September 23, 2013.Decided September 30, 2013.

David M. Schlachter argued the cause for appellant (Law Offices of David M. Schlachter, LLC, attorneys; Mr. Schlachter, on the brief).

Sanjay Ibrahim argued the cause for respondent (Parker Ibrahim & Berg LLC, attorneys; Anthony Del Guercio and Melinda Colón Cox, on the brief).

Before Judges Reisner and Carroll.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

Defendant Patrice Springette appeals from an order dated December 16, 2011, denying her motion to return this foreclosure case to mediation, and a February 7, 2012 order, denying an application for a stay of eviction from the foreclosed premises.^[1] For the reasons that follow, we affirm.

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In 2005, Springette and her then-fiancé (defendants) obtained a $371,250 loan, secured by a mortgage on their home. They defaulted on the loan in 2006. Plaintiff filed its foreclosure complaint on December 18, 2006. On January 25, 2007, defendants filed a "cross-complaint" asserting that some of their mortgage payments were misapplied. However, their pleading did not deny that they were in default. Springette and her fiancé both signed the cross-complaint. On July 20, 2007, the trial court granted summary judgment striking the answer and defenses. A final judgment of foreclosure was entered on December 4, 2007, and the property was sold at a sheriff's sale on August 19, 2009.

On August 24, 2009, defendants filed a motion to vacate the foreclosure judgment and to vacate the sheriff's sale, alleging that Springette was not served with the foreclosure complaint and defendants were not served with notice of the sheriff's sale.

By order dated November 6, 2009, Judge Glenn Berman denied the motion, noting that both defendants were served with the complaint by mail and filed an answer, and that notice of the sheriff's sale was posted on the premises. Defendants did not appeal from that order. Instead, on January 27, 2010, they filed another motion to vacate the sheriff's sale, this time contending that they had been making mortgage payments pursuant to a forbearance agreement. Judge Berman denied that motion by order dated March 19, 2010. However, he also ordered the parties to participate in mediation. Defendants did not appeal from that order either.

After the case was not resolved at mediation, Springette filed a motion to require continued mediation based on her claim that plaintiff failed to fully participate in the mediation. Her motion was supported by a certification from an attorney who had not participated in any of the mediation sessions and had no personal knowledge about those sessions. Plaintiff filed opposition, supported by a certification of counsel attesting that either he or one of the firm's associates had attended the mediation sessions and that the mortgage company's representative had been available to participate by telephone. Judge Berman denied the motion by order dated December 16, 2011.

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On this appeal, Springette argues that the trial court should have vacated the final judgment of foreclosure and the sheriff's sale. Those arguments are not properly before us, because she did not file a timely appeal from the trial court's orders denying that relief. However, they are also without merit for the reasons stated by Judge Berman. Springette further argues that the trial court should have ordered continued mediation, because plaintiff failed to "meaningfully" participate in the prior mediation process. Plaintiff presented evidence that its counsel attended all eight mediation sessions and that a representative of the mortgage company was available by telephone for those sessions. Based on the record presented to us, we find no abuse of Judge Berman's discretion in denying the motion to continue the mediation. See U.S. Bank Nat. Ass'n v. Williams, 415 N.J. Super. 358 (App. Div. 2010).

Affirmed.

[1] The February 7 order stayed the eviction until February 17 but denied any further stay. On February 16, 2012, we denied Springette's application for a stay of eviction pending appeal. She has not briefed the validity of the February 7, 2012 order and we will not address it here. According to plaintiff's brief, Springette is still living in the foreclosed premises, although the loan has been in default since 2006. This appeal was referred to the Civil Appeals Settlement Program, but no settlement was reached.

WAGE GARNISHMENT ARTICLE - BANKRUPTCY ATTORNEY IN NEW JERSEY (201) 646-3333

 

LAMAR ENTERPRISES, LLC, Plaintiff-Respondent,
v.
SES PROPERTIES, LLC and WILLIAM SPENCER, t/a SMOOTHIE FACTORY, Defendants-Appellants.No. A-4976-11T4.
Superior Court of New Jersey, Appellate Division.

Submitted March 19, 2013.Decided April 30, 2013.

Ryan A. Dornish, attorney for appellants.

Clifford J. Weininger, attorney for respondent.

Before Judges Alvarez, Waugh and St. John.

NOT FOR PUBLICATION

PER CURIAM.

On July 22, 2011, plaintiff Lamar Enterprises, LLC, obtained a judgment by default in the amount of $108,804.51 against its former tenant SES Properties, LLC, and William Spencer, trading as Smoothie Factory. The judgment was docketed on August 17, 2011, and a writ of execution issued October 20, against Spencer. Defendants filed a motion objecting to the garnishment, seeking a stay of execution, and a hearing to address the amount of the judgment. The court denied the application and the subsequent motion for reconsideration. We affirm for the reasons stated by Judge Robert J. Brennan in his well-reasoned analysis rendered from the bench. We add the following very brief comments.

Spencer, in addition to his wages, operates two businesses and owns a commercial building. He nets $4068.96 per month (calculated on 4.3 weeks each month) from his salary at a full-time job. Pursuant to the terms of his divorce, he pays limited duration alimony, child support, and equitable distribution in the amount of $3947.66 monthly. He is current on that obligation. It is not paid by garnishment, or even through the probation department.

At the beginning of oral argument on the motion, defendants' attorney advised the court that Spencer was available by phone to testify. Judge Brennan declined the offer pursuant to Rule 1:6-2, which requires facts not of record, or cognizable by judicial notice, to be submitted on motions in affidavits or certifications.

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On reconsideration, defendants argued that the court erred by refusing to allow Spencer to participate via telephone. Defendants raise the same arguments on appeal as they did before the trial court. They are:

POINT 1

PLAINTIFF HAS FAILED TO MITIGATE DAMAGES SO THE WAGE EXECUTION SHOULD BE DISMISSED

POINT 2

DEFENDANTS CANNOT AFFORD THE WAGE EXECUTION AND THEREFORE IT SHOULD BE MODIFIED AND/OR DISMISSED

POINT 3

A PERSON CANNOT BE SUBJECT TO MORE THAN ONE WAGE GARNISHMENT AT A TIME. N.J.S.A. 2A:17-52(a)

POINT 4

THE JUDGE ERRED IN MAKING FACTUAL AND LEGAL FINDINGS

Judge Brennan correctly noted that defendants could not, post-judgment, directly attack the merits of the judgment. Defendants had an opportunity to file an answer, or take an appeal, and did neither. Having failed to avail themselves of those options, they did not even file a motion to set aside the judgment pursuant to Rule 4:50-1. The court therefore correctly refused to entertain the argument.

The trial judge also observed that Spencer's asserted inability to afford the amount of the wage execution was not clearly established. Mathematically, it is reasonable to conclude that Spencer has other substantial income from which he is maintaining his divorce obligations. Spencer operates a septic pump business, a snow removal business, and owns a commercial building, in addition to holding down a job. Furthermore, the wage deductions from his employment were not proven to be involuntary in nature. His pay stub included deductions totaling $903.14 for health contributions, pension, loans, dues, and credit union. Therefore, Spencer's proofs simply failed to demonstrate any inequity in the wage garnishment.

Judge Brennan did not credit Spencer's argument that he was being subjected to a "de facto" second wage garnishment because of his matrimonial obligations. That argument is so lacking in merit as to warrant no further discussion in a written opinion. R. 2:11-3(e)(1).

Finally, we find no error in the judge's rejection of Spencer's motion for reconsideration, premised on the notion he should have been allowed to testify telephonically with regard to his pay and income. As the judge pointed out, on motions, Rule 1:6-2 does not permit facts to be established other than through an affidavit or certification. Hence the judge did not err in declining to allow Spencer's telephonic participation to answer questions that might arise during the hearing.

"A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). In this instance, the trial court's reasoned conclusion, in our view, correctly applied the law to established facts. Motions for reconsideration will be granted only where the court has failed to consider evidence, has rendered a decision based on plainly incorrect reasoning, or failed to correctly apply the law. See Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). The court in this case considered the evidence, analyzed the matter fairly, and correctly applied the law.

Affirmed.

FORECLOSURE ARTICLE - BANKRUPTCY LAWYER IN NEW JERSEY (201) 646-3333

 196 A.3d 121 (2018)

456 N.J. Super. 546

DEUTSCHE BANK TRUST COMPANY AMERICAS, AS TRUSTEE FOR RESIDENTIAL ACCREDIT LOANS, INC., Mortgage Asset-Backed Pass-Through Certificates, Series 2005-QSI4, Plaintiff-Respondent,

v.

Debbie A. WEINER and Clifford R. Weiner, Defendants-Appellants.

DOCKET No. A-2110-17T4.

Superior Court of New Jersey, Appellate Division.

Submitted October 23, 2018.Decided November 8, 2018.

On appeal from Superior Court of New Jersey, Chancery Division, Somerset County, Docket No. F-026288-16.

Christopher D. Ferrara LLC, attorneys for appellants (Christopher D. Ferrara, on the brief).

Blank Rome LLP, attorneys for respondent (Michael P. Trainor, on the brief).

Before Judges Fisher, Geiger and Firko.

122*122 The opinion of the court was delivered by

FISHER, P.J.A.D.

For many years, New Jersey lacked a statute of limitations for residential foreclosure actions. Instead, for more than a century, our courts applied the time-bar used in adverse possession actions: twenty years. See Depew v. Colton, 60 N.J. Eq. 454, 464, 46 A. 728 (E. & A. 1900); Security National Partners L.P. v. Mahler, 336 N.J. Super. 101, 106-07, 763 A.2d 804 (App. Div. 2000). In 2009, the Legislature made up for lost time and enacted N.J.S.A. 2A:50-56.1, which codified Security National Partners^[1] by declaring that a residential foreclosure action "shall not be commenced following the earliest of" three points in time:

• Six years from "the date fixed for the making of the last payment or the maturity date set forth in the mortgage or the note," N.J.S.A. 2A:50-56.1(a);

• Thirty-six years from the date the mortgage was recorded or, if not recorded, from the date of execution, N.J.S.A. 2A:50-56.1(b); and

• Twenty years from the date of a default that "has not been cured," N.J.S.A. 2A:50-56.1(c).^[2]

Defendants' contention that N.J.S.A. 2A:50-56.1(a)'s six-year time-frame applies and bars this foreclosure action, which was filed seven years after their uncured default, is without merit.

FORECLOSURE ARTICLE - BANKRUPTCY ATTORNEY IN HACKENSACK NEW JERSEY (201) 646-3333 - YouTube

The record reveals that defendant Debbie A. Weiner borrowed $657,500 from Weichert Financial Services in 2005 and then executed in Weichert's favor a promissory note that required monthly payments, 123 the last of which was scheduled for June 2035. To secure the note's repayment, both defendants executed a mortgage that was recorded in 2005 and ultimately assigned to plaintiff Deutsche Bank Trust Company Americas.^[3]

There is no dispute that defendants failed to make a scheduled August 2009 payment and all later monthly payments. After four discontinued suits, Deutsche Bank commenced this foreclosure action in September 2016, more than seven years after defendants' uncured default.

The parties eventually cross-moved for summary judgment. The judge granted Deutsche Bank's motion, denied defendants' motion, and later denied defendants' motion for reconsideration. Once final judgment was entered in December 2017, defendants filed this timely appeal, arguing: (1) summary judgment should not have been entered because discovery was incomplete and there were genuine disputes about Deutsche Bank's claim, its standing to sue, and its status as a holder; (2) their answer should not have been stricken; and (3) the complaint was barred by the statute of limitations. We reject these arguments and affirm.^[4]

In arguing the action was time-barred, defendants claim the six-year time frame in subsection (a) was triggered in 2009 when their default triggered the loan's acceleration. We disagree. Subsection (c) specifically provides a time frame to be considered upon an uncured default. To interpret subsection (a) as triggering the same event encompassed by subsection (c) would wreak havoc with the clearly delineated provisions of N.J.S.A. 2A:50-56.1. We refuse to inject such confusion into what the Legislature carefully planned when it adopted this multi-part statute of limitations.

Defendants' interpretation would also require that we ignore subsection (a)'s plain language. That provision declares that the six-year period runs from the date of the last payment or the maturity date "set forth in the mortgage or the note." N.J.S.A. 2A:50-56.1(a). June 1, 2035 was the date "set forth" in the note and mortgage here, and that date is the one and only date that triggers the six-year period in subsection (a). There is no ambiguity; that conclusion is what the plain language of the statute compels. See DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). Any other conclusion would mangle the Legislature's carefully phrased statute. State v. Clarity, 454 N.J. Super. 603, 608, 186 A.3d 919 (App. Div. 2018).

CHAPTER 7 ARTICLE - BANKRUPTCY ATTORNEY IN NEW JERSEY 07601 - (201) 646-3333 - YouTube

In short, the three events described in subsections (a), (b), and (c) of N.J.S.A. 2A:50-56.1, were scheduled to occur in 2041 (six years after the 2035 maturity date), 2041 (thirty-six years after the 2005 recording of the mortgage), and 2029 (twenty years from defendants' uncured 124*124 default), respectively. Since the earliest has yet to occur, this suit, commenced in September 2016, was not time-barred.^[5]

Affirmed.

[1] See Assemb. Fin. Insts. & Ins. Comm. Statement to S. No. 250 — L. 2009, c. 105 (Oct. 6, 2008).

[2] For brevity's sake, we have omitted statutory language from the descriptions of each subsection that has no bearing here.

[3] The mortgage was first assigned to Deutsche Bank Trust Company Americas, as trustee for certain certificate holders, in 2009, and later assigned to Deutsche Bank, as trustee for Residential Accredit Loans, Inc., 2005-QS14, the plaintiff here, in 2013. The assignments were duly executed and recorded.

[4] We find insufficient merit in defendants' first two points to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only as to the first that, in moving for summary judgment, Deutsche Bank provided undisputed evidence that it was in possession of the note, which was endorsed to it, and that the mortgage assignments were duly executed and recorded. See Deutsche Bank Trust Co. v. Angeles, 428 N.J. Super. 315, 318, 53 A.3d 673 (App. Div. 2012).

[5] Although not raised, we assume N.J.S.A. 2A:50-56.1 applies to defendants' argument that Deutsche Bank's suit was untimely even though the statute did not become effective until August 6, 2009, approximately the same time as defendants' default. Even if the statute had no application here, the result would be the same, since the pre-statute twenty-year time-bar described in Colton and Security National Partners would allow for the maintenance of this suit.