Stein, J.c.c., Temporarily Assigned.
The novel question presented by this case is whether a creditor under a retail installment contract can collect the entire unpaid contract balance from the defaulting debtor in the absence of an acceleration clause.
Alternatively, the creditor contends that the individual guarantors to this retail installment agreement have an obligation broader in scope and greater than that imposed upon the original contracting debtor.
This is a suit for a claimed deficiency following default under a lease-purchase agreement. The chattel which is the
subject matter of the lease-purchase agreement is a 1973 Mack Tandem Axle dump truck.
When this case was assigned for trial, counsel for the parties stipulated that there was no substantial question of material fact and that the matter should be treated as if cross-motions for summary judgment had been filed.*fn1
The lease-purchase agreement was entered into on or about March 23, 1973, between defendant James P. Castiglione, t/a Carste Leasing (Carste), and plaintiff General Electric Credit Corporation (GECC). Under this agreement, entitled "Lease Agreement -- Vehicle and (Retail Installment Contract -- Lease)," Carste agreed to pay the sum of $45,813.15*fn2 to plaintiff in 45 equal monthly installments of $1,018.07 with the final payment due on March 23, 1978.*fn3 After making the 45th payment, Carste had the option to purchase the dump truck for the sum of $1.
On the same date individual guarantees were executed by defendants James Castoro (Castoro) and Castiglione individually, and South Brunswick Asphalt, a New Jersey corporation.
In March 1974 Carste was two monthly payments in arrears and plaintiff declared the lease in default. Thereafter, on November 1, 1974, plaintiff obtained the truck by writ of replevin. Plaintiff then expended $882 in repairing the vehicle and an additional $175 in an unsuccessful attempt to
auction the truck. Plaintiff then sold the dump truck for $17,000, an amount stipulated as $1,000 in excess of its fair market value. Additionally, plaintiff had received two months' advance rental, or $2,036.14, at the time the lease was entered into and which, of course, it retained after Carste's default.
Plaintiff claims that the net amount of $17,097.14 received after sale of the truck does not satisfy Carste's obligation under this lease agreement. What plaintiff claims as due and owing is $25,317.18*fn4 broken down as follows:
$34,614.38 balance of time rental balance at time of default
(original amount: $45,813.15)
less 17,000.00 sales price
less 277.08 seller's participation costs