On appeal from the Superior Court, Law Division, Essex County, whose opinion is reported at 184 N.J. Super. 194 (1981).
Bischoff, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant Margaret Schneider appeals by leave granted (R. 2:2-4) from an interlocutory order which denied her motion to dismiss the complaint because of the failure of plaintiff Bank Leumi Trust Company of New York (bank) to comply with the Corporate Business Activities Reporting Act, N.J.S.A. 14A:13-14 et seq.
The facts relevant to the appeal are undisputed. On May 10, 1978 Schneider entered into a home improvement contract with Delco Applicators Corp. for certain work to be done at 30 Woodland Avenue, West Orange, New Jersey. Schneider executed a $6,135.36 note payable to Delco Applicators Corp. in 84 consecutive monthly installments of $73.04 each. The note was assigned to The Dartmouth Plan, Inc., a New York corporation authorized to do business in New Jersey, and on June 13 Schneider executed a mortgage to The Dartmouth Plan in the amount of $6,437.36. The Dartmouth Plan assigned the note and mortgage to the bank on June 19. Both the mortgage and its assignment were recorded. Schneider allegedly defaulted on the note and the bank filed this suit to recover the balance due. In addition to her general denials of the allegations of the bank's complaint, Schneider asserted the following separate defenses:
Since plaintiff is a foreign corporation transacting business in New Jersey without a Certificate of Authority, plaintiff is barred from using the Courts of this State and there is an absence of subject matter jurisdiction.
Since plaintiff is a foreign corporation transacting business in New Jersey without having filed a Notice of Business Activities Report, plaintiff is barred from using the Courts of this State and there is an absence of subject matter jurisdiction.
Discovery disclosed that the bank, incorporated in New York, had no certificate of authority to transact business in New Jersey. N.J.S.A. 14A:13-3; N.J.S.A. 17:9A-318. Nor had the bank ever filed a notice of business activities report under the Corporation Business Activities Reporting Act, N.J.S.A. 14A:13-14 et seq. The bank acknowledged, however, that between 1977 and September 1981 it had engaged in 216 transactions with The Dartmouth Plan involving New Jersey residents and had approximate earnings from New Jersey residents totalling $389,876.64.
Schneider moved to dismiss the complaint on the ground that the bank "is barred from maintaining this action in any Court in the State of New Jersey by N.J.S.A. 14A:13-14 et seq. and by N.J.S.A. 14A:13-11." In his formal opinion (184 N.J. Super. 194 (Law Div.1981)), the trial judge addressed only the issue of "whether a foreign bank purchasing mortgages and receiving monthly payments thereon must comply with the Corporation Business Activities Reporting Act." He found "a conflict" between the Reporting Act and § 9A-331(3) of the Banking Act of 1948, N.J.S.A. 17:9A-1 et seq., and concluded that N.J.S.A. 17:9A-331(3) is "controlling" and the Reporting Act "do[es] not apply under the facts of this case." 184 N.J. Super. at 197. Schneider appeals from the January 13, 1982 order which was thereupon entered denying her motion to dismiss.
N.J.S.A. 14A:13-15 requires a notice of business activities report to be filed by every foreign corporation
"Activities or property maintenance in this State" is defined in the same section to include
e. receiving payments from persons residing in this State, or businesses located in this State, aggregating in excess of $25,000.00 regardless of ...