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Urdang v. Muse

Decided: March 30, 1971.


Yanoff, P.J.D.C.


This case involves the enforceability of an acceleration provision in a retail installment contract in the light of Uniform Commercial Code provisions, N.J.S. 12A:1-203 and 12A:2-302, and the equitable powers declared applicable to County district courts in Vineland Shopping Center, Inc. v. DeMarco , 35 N.J. 459 (1961), and Carteret Properties v. Variety Donuts, Inc. , 49 N.J. 116 (1967).

The procedural aspects of the case merit comment. Plaintiff, appearing pro se , claimed a balance of $771.25 after sale of the security, an automobile, under a retail installment sales contract. Default was entered on August 25, 1970. The case was set down for proof on September 30, 1970, when defendant appeared. The case was then adjourned to October 7, 1970. The result of the hearing was that the default was opened and the case adjourned.

On December 18, 1970 I wrote a letter to the parties fixing a date for taking of testimony as to the balance at time of default, tender made by defendant after default, and the commercial setting pursuant to N.J.S. 12A:2-302 of the transaction, for the purpose of aiding the court in ascertaining whether the results in the case would be unconscionable. Thereafter counsel appeared for plaintiff and a hearing was held in which plaintiff was represented by counsel. Defendant still appeared pro se.

At the hearing a representative of the finance company testified. Defendant also testified and was subject to cross-examination.

I find the following facts from the testimony before me:

Under date of April 17, 1968 defendant (buyer) entered into a retail installment sales contract with Monarch Chrysler Plymouth Inc., for the purchase of an automobile. The time sales price was $4245.14, with a down payment of $1103.54,

leaving a balance of $3141.60, payable in 30 monthly installments of $104.72. Seller assigned to Chrysler Credit Corporation by an assignment which is an integral part of the agreement. Plaintiff obtained the contract by assignment, for the sum of $160. The contract contains a default clause which reads in part:

In the event Buyer defaults in any payment * * * Seller shall have the right at its election to declare the unpaid portion of the Time Balance under said contract to be immediately due and payable. * * * Waiver by Seller of any default shall not be deemed a waiver of any other default. * * *

December 16, 1969, when the 20th installment fell due, defendant defaulted under the contract. At about that date he took the motor vehicle to Washington, D.C., for the purpose of finding employment there, and did not return until the end of March 1970. The finance company attempted unsuccessfully to find him and had reason to believe that he was out of the State with the motor vehicle. The repossession occurred when defendant returned to New Jersey. His wife at all times remained in the State.

Defendant's testimony was that after repossession he made a loan from a small loan company and offered to pay Chrysler Credit Corporation $900. In corroboration he produced a note dated April 2, 1970 evidencing a loan of $1000. The finance company employee testified that on April 3, 1970 he received a telephone call from defendant and quoted him a pay-off figure of $1180.71. He stated he could not deny that defendant had offered the $900. He testified also that as of that date the defaulted installments amounted to $266.39, and that repossession costs amounted to $52.77, making a total of $319.16. I find as a fact that defendant offered to pay $900 on account to the finance company to obtain repossession of the vehicle.

The representative of the finance company testified that one of the reasons he refused the tender of $900 was that defendant had been out of the State and that he had difficulty

in locating him. He testified also as to a record of late payments prior to January 1970, ranging up to a period of ten days in the most extreme occasions.

The contract provides that removal from the state in which delivery was made for a period of 30 days or more without the seller's consent constituted an event of default. The contract contains no provision to the effect that the seller may repossess if he feels insecure. I find as a fact that defendant committed a breach of contract in removing the property from the State for a period in excess of 30 days. The finance company ...

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