On certification to the Superior Court, Appellate Division, whose opinion is reported at 142 N.J. Super. 304 (1976).
For affirmance -- Chief Justice Hughes and Justices Sullivan and Handler. For reversal -- Justices Pashman and Clifford. Pashman, J., dissenting. Justice Clifford joins in this opinion.
The judgment is affirmed substantially for the reasons expressed in the opinion of the Appellate Division.
PASHMAN, J., dissenting. I cannot agree with the majority's holding today that a bank's right of setoff can be exercised against an assignee for the benefit of creditors after the deed of assignment is made. There is no statutory authorization for permitting such an act by the bank. Absent specific legislative authorization of such special treatment for one particular creditor as against all other creditors, I find the command of N.J.S.A. 2A:19-2 that all creditors be treated alike to be dispositive.
Every general assignment made by a debtor residing in this state shall be made for the equal benefit of his creditors in proportion to their several demands, to the extent of the net amount that shall come to the hands of the assignee for distribution. All preferences attempted to be made in any such assignment of one creditor over another, or whereby any one creditor shall be first paid or have a greater proportion in respect of his claim than another, shall be deemed fraudulent and shall render the assignment void.
The facts may be briefly summarized. A loan of $75,000 to DPD, Inc. by the defendant bank was guaranteed individually by Messrs. Silverstein and Wolf, the principals of DPD and by a separate corporate entity, Scientific Restaurant Management Corp. (SRM). In addition to the guaranty, SRM executed a security agreement to the defendant bank in which it granted the bank a security interest in and right to setoff of any account SRM had with the bank. The bank did not perfect its security interest.
After the outstanding portion of the loan had been reduced to approximately $21,000, SRM, then insolvent, executed a general assignment for the benefit of all its creditors to the plaintiff. After the assignment was made Silverstein or Wolf called the defendant bank to advise it of the assignment. Shortly thereafter, the defendant bank seized the $21,590 in SRM's bank account. The plaintiff assignee commenced this action charging that the bank had no right to make any setoff after the general assignment because that would result in an unlawful preference in favor of the bank over SRM's other creditors.
The Appellate Division did not accord appropriate significance to the fact that the provisions permitting a priority to a creditor which had a right of setoff in the Bankruptcy Act, 11 U.S.C. § 108(a) and in the New Jersey Corporation Act, N.J.S.A. 14A:14-8(1), represented explicit legislative judgments that the normal rule requiring that all creditors be treated alike did not apply in certain specifically enumerated circumstances. No similar policy is discernible from the language of the Assignment for the Benefit of Creditors Act, N.J.S.A. 2A:19-1 et seq.
Under N.J.S.A. 2A:19-14 the assignee for the benefit of creditors has the same power to reach the assets of the assignor as one who was the holder of a judgment and to levy against the assignor and his property at the date of the assignment. Thus, even though the instant contractual provision between the guarantor and the bank provided that an assignment for the benefit of creditors constituted a default which made the guaranty immediately enforceable,*fn1 the effect of this provision could not antecede the operation of the assignment. The default could not have occurred until a point in time immediately after the assignment. N.J.S.A. 2A:19-14, fairly read, provides for the transfer of all the assets of the debtor instantaneously upon the execution of the assignment and also provides that as of that time the assignee has the status and rights of a judgment creditor who has levied against all the assets of the assignor. Thus, guarantor SRM's bank account had been legally assigned to and must be deemed to have been levied upon by its creditors as of the moment of the assignment. This lien attached before the bank became aware of the assignment and sought to exercise its right of setoff. Its decision to setoff came too late, as, by that time, there was no SRM property in the bank's hands upon which it could exercise the right of setoff which it concededly possessed as against SRM.
Our decision in Russell v. Fred G. Pohl Co., 7 N.J. 32 (1951), is relied on by defendant bank. However, its fact pattern does not support the bank's position. In 1945 Fred G. Pohl Co. had assigned all monies due and to become due from the American Type Founders to the Title Guarantee and Trust Company. In keeping with the assignment, American Type Founders paid funds to Title Guarantee and Trust Company in 1945, 1946 and 1947. Plaintiff Russell instituted a suit by attachment in March 1946 against Fred G. Pohl Company. Some five days later the Sheriff, acting under the writ, ...