On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Approved for Publication June 24, 1997. As Corrected June 30, 1997.
Before Judges Stern, Humphreys and Wecker. The opinion of the court was delivered by Humphreys, J.A.D.
The opinion of the court was delivered by: Humphreys
The opinion of the court was delivered by
At the request of the Borough of South Toms River, Joe's Precision towed and stored an abandoned car on April 27, 1995. Midlantic Bank held a perfected security interest in the car. Midlantic demanded that the car be turned over to it. Joe's Precision refused to release the car because there was an outstanding balance of $3,323.20 for the towing and storage.
In July 1995, Midlantic filed suit. On October 4, 1995, the parties agreed that Midlantic would pay the Borough $400 in order to permit a sale in accordance with the Uniform Commercial Code ("UCC"). The amount of $3,323.20 was to be taken from the proceeds of the sale and held in escrow while the parties sought a judicial determination as to the priority of their claims. A consent order was entered to that effect. Midlantic states that the car was sold on October 9, 1995 for $14,300 and that approximately $23,000 was then due Midlantic on its secured claim.
Midlantic moved for summary judgment. The Judge construed the relevant statutes to require Midlantic to pay Joe's Precision's reasonable storage fees which the Judge determined to be $1,320 for sixty days of storage. An order was entered requiring Midlantic to pay Joe's Precision that sum out of the escrowed funds.
Midlantic appeals, contending that its liability is limited to $400 under N.J.S.A. 40:48-2.50 and that the court erred in concluding that "payment should be compelled due to delay in Midlantic's exercise of its rights."
Joe's Precision cross-appeals, contending that the Judge should have awarded it one hundred forty days worth of storage charges plus a $65 tow charge and State sales tax.
We have thoroughly reviewed the record. We conclude that the security interest of the bank is superior to the lien claim of Joe's Precision. We reverse and remand on the appeal and affirm on the cross-appeal.
A garage keeper has a statutory lien upon a motor vehicle for, among other things, the cost of storing the motor vehicle. N.J.S.A. 2A:44-21. The statute provides that the lien is not superior to, nor shall it "affect" a prior perfected security interest. Ibid. ; see also N.J.S.A. 12A:9-310.
Joe's Precision relies on N.J.S.A. 39:10A-2 which provides that the owner or party entitled to reclaim possession of an abandoned automobile may do so "upon payment of the reasonable costs of removal and storage of the vehicle." Ibid. ; see generally N.J.S.A. 39:10A-1 to -20 (the Abandoned and Unclaimed Motor Vehicles Act). However, another section of the same statute, N.J.S.A. 39:10A-20, preserves the superiority of the secured creditor. This section provides that the Act is "an additional remedy" which "shall not be construed to supersede ...