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Fox v. Mercedes-Benz Credit Corp.

May 22, 1995

HARRY M. FOX, PLAINTIFF-APPELLANT,
v.
MERCEDES-BENZ CREDIT CORPORATION, DEFENDANT-RESPONDENT.



On appeal from the Superior Court, Law Division, Bergen County.

Approved for Publication May 22, 1995.

Before Judges King, Muir, Jr, and Bilder. The opinion of the Court was delivered by Muir, Jr., J.A.D.

The opinion of the court was delivered by: Muir

MUIR, JR., J.A.D.

The complaint in this case alleges a cause of action for concealment of evidence. See Viviano v. CBS, Inc., 251 N.J. Super. 113, 597 A.2d 543 (App. Div. 1991), certif. denied, 127 N.J. 565 (1992). The factual predicate for the complaint is the belated production of evidence during pretrial discovery in a deficiency action defendant, Mercedes-Benz Credit Corporation (MBCC), brought under the Uniform Commercial Code (UCC) as a secured creditor after resale of collateral. The trial court granted summary judgment dismissing the complaint and at the same time denied Fox's motion to amend his complaint to include counts for fraud and consumer fraud (N.J.S.A. 56:8-2). Plaintiff appeals. We affirm.

I.

Events that transpired in discovery are the marrow of this appeal. Yet, that marrow cannot be properly comprehended without the inclusion of certain skeletal aspects of events that began with the underlying UCC transaction. In providing the skeleton, we rely on the record presented on this appeal and the records of two prior appeals in the deficiency action. The first appeal resulted in a reversal; the second, an affirmance of the judgment from the remand trial.

During a period from late July through August 1984, Fox, as a principal of a closely held corporation, Sherman Leasing, Inc., negotiated the latter's purchase of five cab-over diesel Freightliner Tractors (trucks) from Glasofer Motors. (Other trucks were purchased but only five are relevant here.) Fox gave a personal guarantee to satisfy any and all indebtedness existing, accrued to, or owing by Sherman Leasing. Glasofer Motors assigned the retail installment contracts to MBCC.

In January 1986 default on payment terms led to a revision of the installment contracts signed by Fox. The revisions basically rescheduled monthly payments. No payments were made under the revised agreements.

That default led to MBCC's demand for repossession for purposes of sale of the trucks. As Judge Stark in her opinion following the remand trial noted:

Fox described in detail the preliminary contacts leading to [MBCC's] repossession. . . . Throughout February, March and April of 1986 there were frequent contacts between and [employees under Fox's control] notifying him of [MBCC's] demand for immediate payment, and an untenable second default situation; namely, that after . . . the 1984 contract was revised to avoid forfeiture, . . . Fox signed[,] in 1986[,] writings that indicated there would be a revision as to the payoff of these in light of the default . . . and . . . that -- the only way to forestall the repossession that was included in the original contract and the consequences of same . . . a resale, was to pay . . . in accordance with the revised [agreement] . . . .

Mr. Fox . . . acknowledges his awareness of all details of these conversations . . . after stalling with promises of payment.

Now, Fox agreed to and [did] ultimately surrender the vehicles to [MBCC's] agent at [Fox's] . . . Passaic address [on September 5, 1986].

On September 9, 1986, as required by the UCC, see N.J.S.A. 12A:9-105, MBCC mailed written notice of a proposed private sale at Glasofer Mack in Edison, New Jersey, addressed to Fox at two addresses: 145 Dayton Avenue, Passaic, and 149 Lincoln Avenue, Hackensack. Notices of sale were also sent to Sherman Leasing at Oak Creek, Wisconsin. The notice set November 8, 1986, as the sale date. MBCC did not sell the trucks until February 22, 1989, when Camden Truck Parts bought them at about ...


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