Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cederlund v. Hub Loan Co.

Decided: June 30, 1965.

LORAN F. CEDERLUND, PLAINTIFF,
v.
HUB LOAN COMPANY, A NEW JERSEY CORPORATION, DEFENDANT. ARTHUR L. DICKSON, RECEIVER OF HUB LOAN COMPANY, PLAINTIFF-APPELLANT, V. LORAN F. CEDERLUND AND FRANCES T. ZENKER, DEFENDANTS-RESPONDENTS. ANCHORAGE MORTGAGE CORPORATION, CLAIMANT-APPELLANT, V. ARTHUR L. DICKSON, RECEIVER OF HUB LOAN COMPANY, A NEW JERSEY CORPORATION, DEFENDANT-RESPONDENT



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Lewis, J.A.D.

Lewis

By order of this court the appeals in this matter were consolidated for argument. They respectively challenge the portions of a Chancery Division judgment that (1) sustained the determination of the court-appointed receiver for Hub Loan Company (herein Hub) in disallowing a $14,000 claim of Anchorage Mortgage Corporation (herein claimant or Anchorage) as a secured obligation, and (2) dismissed a summary action of the plaintiff receiver for a recovery of certain alleged preferential payments received by defendants Loran F. Cederlund and Frances T. Zenker, creditors of Hub.

Hub, a corporation licensed by the New Jersey Department of Banking and Insurance, had been in the business of making small loans. An order to show cause in a creditor's action was entered on July 27, 1960 which inter alia enjoined Hub from disposing of its assets. On November 17, 1960 the corporation was adjudged insolvent and Arthur L. Dickson was appointed statutory receiver for the company, "with all powers incident thereto."

Anchorage, a Florida corporation, filed its afore-mentioned claim, alleging that it was a pledgee by virtue of an assignment dated July 12, 1960 of the Hub corporation's reserves and holdback accounts with the Finance Company of America. After hearings conducted by the receiver, pursuant to R.S. 14:14-15, the claim was disallowed in its entirety as a secured or prior obligation. Claimant then appealed from

that decision to the Chancery Division. For convenience the trial court consolidated the appeal with a summary proceeding instituted by the receiver against defendants Cederlund and Zenker to recover alleged illegal preferential payments made to them by Hub while it was insolvent.

The trial court found specifically that (1) the alleged assignment to claimant of July 12, 1960 was "an attempt to fraudulently obtain a preferential position as a preferred creditor," and (2) the moneys which were forwarded by Anchorage to Hub or its attorney on and subsequent to August 15, 1960, for payments to Cederlund and Zenker, did not constitute preferred payments by Hub to those creditors. Accordingly, the trial court affirmed the receiver's disallowance of the secured claim asserted by Anchorage and dismissed the receiver's suit against Cederlund and Zenker, all of which gave rise to the appeals presently before this court.

It is unnecessary to review the facts in further detail. They, together with the legal conclusions drawn therefrom, are set forth in a comprehensive opinion rendered by the trial judge. We have studied the record and we are satisfied, substantially for the reasons stated in that opinion, that the evidence substantiates the factual findings and legal conclusions of the trial court and the ultimate judgment rendered thereon.

We note, however, a procedural error raised by Anchorage which merits comment. In advance of trial of the appeal from the receiver's disallowance of its claim, Anchorage applied to the court for an order to permit an examination of the testimony taken before the receiver. That application was denied on the authority of Conover v. West Jersey Mortgage Co., 87 N.J. Eq. 16 (Ch. 1916). During the trial, however, selected portions thereof were permitted to be used by adverse parties in the cross-examination of claimant's witnesses. A denial of such pretrial discovery in proceedings where the hearings conducted by the receiver were quasi -judicial in nature and subject to appeal de novo, and where the testimony sought bore directly on the claim of the creditor

requesting it, is inconsistent with the liberal spirit of R.R. 4:16-2. Concealment and surprise at trial are no longer tolerated. The search for truth in aid of justice is the paramount criterion. As stated in Lang v. Morgan's Home Equipment Corp., 6 N.J. 333 (1951):

"Our rules for discovery * * * are designed to insure that the outcome of litigation in this State shall depend on its merits in the light of all of the available facts, rather than on the craftiness of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.