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BRITTON v. HOWARD SAV. BANK

March 23, 1983

JOHN F. BRITTON, Plaintiff
v.
THE HOWARD SAVINGS BANK and AGENTS AUTO RECOVERY SERVICE, Defendants



The opinion of the court was delivered by: BIUNNO

 BIUNNO, Senior District Judge.

 This case began with filing on December 2, 1982 as a suit to recover a Mercedes-Benz car and for damages against the Howard Bank, and an organization engaged by it to repossess the car. There is evidently a complex history in respect to the title and a dispute about the lien.

 Britton sought an order to show cause for immediate delivery of possession. By memorandum of December 3, 1982, the court explained why he could not by the method he chose.

 On January 11th, before the hearing date, the court issued a memorandum asking that specified questions be answered at argument, and noted that the original summons and proof of service were not filed. It was eventually filed on January 13th, showing service only on Howard Bank. The court's memo, mailed to Agents Auto Recovery Service was returned undelivered on January 17, 1983, see Memorandum of that date.

 The two motions were heard January 24th as shown by the docket sheet. Britton's motion was denied. The Howard Bank's motion was granted. There was extended colloquy and articulation on the record, but no party has ordered a transcript.

 The order reflecting those rulings was signed January 25, 1983 and filed the same date. It reflects the court's concern over the existence of subject-matter jurisdiction; no one knew what "Agent's Auto Recovery Service" is or where it is a citizen. The court's recollection is that it felt the Superior Court suit should proceed, and not this one. The record of the transcript would be more reliable. [NOTE: The January 24th. transcript, later produced, showed that the court reserved ruling on the Howard Bank's motion for stay, and ordered instead a limited stay for discovery on the question of Agents Auto's citizenship since diversity jurisdiction did not appear.]

 On March 22, 1983, Howard Bank's and Britton's attorneys appeared. Howard wanted the court to lift the stay, allow it to file a "cross-claim" against Agents Auto Recovery Service, and as well against Joseph Rascio and Mary Lou Rascio, a/k/a Mary Lou De Iesso.

 The papers submitted were returned at the close of the hearing, which ended with a ruling that the stay would not be lifted, and counsel were asked to return to the court a duplicate set so they could be appended to a memorandum and made part of the record. They have not been received at this writing and the court is left to articulate its reasons without them.

 The decisions in Shaffer v. Heitner, 433 U.S. 186, 53 L. Ed. 2d 683, 97 S. Ct. 2569 (1977), and in Finberg v. Sullivan, 634 F.2d 50 (CA-3, 1980, en banc) raise serious doubts of the validity of New Jersey's attachment statutes. There is no federal law providing for attachment as process. At most, F.R.Civ.P. 4(e) draws in State law for that purpose.

 But the attachment statute, N.J.S.A. 2A:16-1, et seq. was drawn on the jurisdictional principles of Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1874). While parts of Pennoyer are no doubt still good law, others are not.

 After Fuentes v. Shevin, 407 U.S. 67, 32 L. Ed. 2d 556, 92 S. Ct. 1983 (1972) the Supreme Court of New Jersey amended its rules of practice to conform to the requirements of that decision. No changes have been made since Shaffer, probably because the source of attachment is entirely statutory, see Tanner v. Ciraldo, 33 N.J. 51, 161 A.2d 725 (1960).

 Due to its grave doubts that issuance of a writ of attachment could validly issue under the circumstances of this case, as well as the open question of subject-matter jurisdiction, the ...


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