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Family Finance Corp. v. Jenkins

November 20, 1974

FAMILY FINANCE CORPORATION, PLAINTIFF,
v.
WILLIAM JENKINS, ET AL., DEFENDANTS. AVCO FINANCIAL SERVICES, PLAINTIFF, V. WILLIAM S. JENKINS, ET AL., DEFENDANTS



Albano, J.d.c.

Albano

Family Finance Corporation (Family), by notice of motion, asks to have the priorities of two wage executions determined. It would appear, however, that the relief sought is not so much the settling of priorities as it is the postponement of a wage execution secured by Avco Financial Services (Avco) to one secured by Family.

On or about April 9, 1970 William S. Jenkins and Lillian Lowe executed a promissory note to Seaboard Finance Company, a predecessor of Avco. The parties defaulted in the payment of the note and an action was brought in this court. Personal service of process was effected on William S. Jenkins and service on Lillian Lowe was effected by service on

said William S. Jenkins. Default was entered and judgment recovered on April 18, 1972. Thereafter, on May 17, 1972, the amount of the debt being $972.36, orders for wage executions were issued to Constable Joseph V. Esposito, in Essex County, against wages of William S. Jenkins, and to Constable Alan Higgs, in Union County, against wages of Lillian Lowe. Shortly before the motion here, approximately $700 had been collected on the wage execution against the wages of Lillian Lowe, and there is no dispute with regard to this wage execution.

The problem lies with the wage execution issued against the wages of William S. Jenkins and the subsequent wage execution of Family. By letter of December 13, 1973 counsel for Avco informed the employer of William S. Jenkins of an agreement for the making of voluntary weekly payments and authorized the employer to withhold the making of deductions from wages until further notice. This letter contained also, the following:

The writ of execution is to remain on file in your office and retain its priority until the judgment is paid in full, at which time we will notify you to that effect. If in the meantime you are served with another wage execution against the same employee, this suspension is to be cancelled and the aforesaid writ of execution is to be automatically reinstated so that it does not lose its position.

A copy of this letter was sent to Constable Esposito.

On or about December 26, 1962 William Jenkins and Jessie Caldwell Jenkins executed a promissory note to Family. The parties defaulted in the payment of the note and an action was brought in this court. Personal service of process was effected on William Jenkins and service on Jessie Caldwell Jenkins was effected by service on said William Jenkins. Default was entered and judgment recovered on March 14, 1974. Thereafter, on April 5, 1974, the amount of the debt being $607, an order for wage execution was issued to the same Constable Esposito against the wages of William Jenkins. For a period of time moneys were collected under this

second wage execution, and then stopped. Family's objective, now, is to have its wage execution honored by Jenkins' employer and to have deductions made for its benefit. The question of any defense to the earlier promissory note to Family, being collateral, is not before the court -- only the consequent judgments and wage executors are to be considered.

In its memorandum of law Family argues that the December 13, 1973 letter suspending deductions under Avco's wage execution amounted to a modification of a court order, in violation of N.J.S.A. 2A:17-55; was done without the consent or knowledge of the court; was an interference with a court order and, without such interference, the first judgment would have been satisfied, so that the result of Avco's act has been prejudicial to Family's interests, and, therefore, Family's wage execution is entitled to priority even though junior in point of time. No cases are cited in support of Family's position.

Avco, in its memorandum of law, argues that it has been common practice to modify wage executions, by letters similar to that of December 13, 1973, to avoid hardship on a defendant or to avoid the possibility of employment termination where a second wage execution is ...


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