Opinion
DOCKET NO. A-3794-10T3
06-18-2012
CACH OF NEW JERSEY, LLC, Plaintiff-Respondent, v. EDWARD C. HARRIS, Defendant-Appellant.
Edward C. Harris, appellant pro se. Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian P.S. McCabe, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.
On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-8054-10.
Edward C. Harris, appellant pro se.
Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian P.S. McCabe, on the brief). PER CURIAM
Defendant Edward Harris appeals from a Special Civil Part order granting summary judgment in favor of plaintiff CACH of New Jersey, LLC. Plaintiff's action sought recovery of a debt arising from defendant's breach of contract. On appeal, defendant argues the court erroneously granted summary judgment, suggesting plaintiff failed to prove its entitlement to a judgment and, alternatively, challenging the amount awarded.
Following our review, we affirm the grant of summary judgment. However, we remand for correction of the amount due, as defendant is entitled to credit for payments made totaling $2,000.
Defendant's obligation relates to an unpaid revolving credit account, originally opened with Providian National Bank. Plaintiff purchased defendant's debt, evinced by a June 29, 2005 bill of sale, then retained the Law Office of Daniel Gordon (Gordon) to collect the overdue balance of $4,692.16. Defendant did not dispute the obligation and accepted a repayment plan with Gordon, agreeing to remit $50 per month, with no additional accruing interest, until the debt was satisfied.
In 2008, defendant ceased making payments. After additional unsuccessful collection efforts, plaintiff initiated this action to collect the outstanding balance of $2,842.16. Plaintiff moved for summary judgment, which was opposed by defendant, who claimed further discovery was necessary as the basis and amount of the alleged debt were disputed. The court scheduled oral argument, but defendant did not appear. In a written opinion, the Special Civil Part judge granted summary judgment, awarding plaintiff $2,842.16 together with costs of suit.
When plaintiff sought to enforce its judgment through a wage execution, defendant moved "to vacate summary judgment," which was treated as a request for reconsideration. The judge denied reconsideration and entered an order for wage garnishment.
Defendant filed this appeal, which plaintiff asserts is untimely. We acknowledge defendant's appeal was filed more than forty-five days from the entry of judgment. R. 2:4-1(a). However, plaintiff's argument is not properly presented. Plaintiff neither filed a motion to dismiss, Rule 2:8-1, nor a cross appeal, Rule 2:5-6(b). Therefore, we elect to address the merits of defendant's challenge to the entry of summary judgment.
In conformity with well-established principles, we review the motion court's conclusions de novo because defendant's challenge on appeal strikes at the grant of summary judgment. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010). We view the established facts in a light most favorable to defendant, as the non-moving party, id. at 374; Estate of Komninos v. Bancroft Neurohealth, Inc., 417 N.J. Super. 309, 313 (App. Div. 2010), and afford no deference to the legal conclusions reached by the trial judge, which are the subject of our review, City of Atl. City v. Trupos, 201 N.J. 447, 463 (2010). Guided by Rule 4:46-2, we review the pleadings, depositions, answers to interrogatories and affidavits on file to discern whether there is a genuine issue of any material fact in dispute, and, if not, whether plaintiff, as the moving party, is entitled to judgment as a matter of law. Henry v. Dept. of Human Servs., 204 N.J. 320, 330 (2010); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 529 (1995).
Defendant suggests the trial court erred because there is a material dispute of whether he owes the debt to plaintiff. We disagree.
Defendant acknowledged the credit card obligation when he entered into the payment arrangement with Gordon. He offers no evidence to dispute the credit card statements provided by plaintiff in discovery or to attack the bill of sale transferring ownership of the debt from Providian to plaintiff. Consequently, plaintiff is entitled to a judgment for the balance due.
The amount to be awarded is the primary focus of defendant's arguments. Defendant maintains he paid Gordon $2,000, not $1,850 as plaintiff asserted. We agree.
The documents presented by plaintiff in support of the amount due show defendant made forty-three $50 payments; however, three payments were returned, as there were insufficient funds in defendant's account. Therefore, the total amount remitted was $2,000. Reducing the initial $4,692.16 balance by the $2,000 results in a remaining debt of $2,692.16 and not $2,842.16 as awarded by the trial judge. Accordingly, the judgment must be corrected.
Affirmed and remanded for correction of the judgment to reflect the amount awarded as $2,692.16 together with costs of suit.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION