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Portfolio Recovery Associates, LLC v. Avrette

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 16, 2007

PORTFOLIO RECOVERY ASSOCIATES, LLC, PLAINTIFF-APPELLANT,
v.
GEORGENE AVRETTE, DEFENDANT-RESPONDENT.
CENTRAL JERSEY OB-GYN ASSOCIATES, P.A., PLAINTIFF-APPELLANT,
v.
ANDREA COOPER, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket Nos. DJ-138211-06 and DJ-31726-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 7, 2007

Before Judges S.L. Reisner and Lyons.

In this case, which has been consolidated for purposes of this opinion, appellants, Portfolio Recovery Associates, LLC, (Portfolio Recovery) and Central Jersey OB-GYN Associates, P.A. (Central Jersey), are judgment-creditors of respondents, Georgene Avrette (Avrette) and Andrea Cooper (Cooper), respectively. The judgment-creditors appeal from the denial of their respective applications for an order for wage execution and certification.

The facts in these matters are as follows. Portfolio Recovery filed suit in Superior Court, Law Division, Special Civil Part, Somerset County, on or about August 9, 2005. Default judgment was entered against Avrette on December 8, 2005, in the sum of $6,008.57, plus costs. This judgment was then docketed in the Law Division on June 2, 2006. A notice of application for wage execution was mailed to Avrette on July 12, 2006. When no objection to that application was received, Portfolio Recovery's counsel submitted its form of order for wage execution to the court. The motion judge denied the application by order dated August 29, 2006. The judge referred to a rider which explained he was denying the order for writ of wage execution because it failed to contain the following information: "instruction to employer to immediately give copy of order to debtor and instruction to debtor that debtor at any time may notify clerk and creditor in writing of reasons why the levy should be reduced or discount issued." Portfolio Recovery's counsel wrote to the judge requesting reconsideration, although not in the form of a formal motion. The judge responded, by way of order dated September 19, 2006, again denying the order for wage execution for the same reasons indicated in his earlier order. Notice of appeal was filed thereafter and the motion judge supplemented his original opinion by a letter opinion dated November 17, 2006.

In the Central Jersey matter, suit was also filed in Superior Court, Law Division, Special Civil Part, Somerset County, on or about September 27, 1999. Summary judgment was entered against Cooper on December 23, 1999 in the sum of $5,649.80, plus costs, and that judgment was then docketed in the Law Division on February 5, 2002. The same counsel who represented Portfolio Recovery in its application for a wage execution also mailed the notice of application for wage execution in connection with the Central Jersey matter to the court and Cooper on August 28, 2006. When no objection to that application was received, Central Jersey's counsel submitted its form of order for wage execution to the court on September 8, 2006. The same motion judge who heard the Portfolio Recovery matter, heard the Central Jersey matter as well and denied the application for an order for wage execution for the same reasons stated in the Portfolio Recovery matter on September 19, 2006. Central Jersey's counsel also wrote to the judge seeking reconsideration, again not in the form of a formal motion. The judge again denied the relief for the same reasons set forth in the Portfolio Recovery matter. Notice of appeal in the Central Jersey matter was filed on November 1, 2006, and the motion judge also supplemented his original opinion by letter opinion on November 17, 2006.

In the motion judge's written decision, he refers to the language of Rule 4:59-1(d), which addresses wage executions. The motion judge stated that, in pertinent part, Rule 4:59-1(d) provides:

[t]he writ shall include a provision directing the employer immediately to give the judgment-debtor a copy thereof and it shall also include a provision that the judgment-debtor may, at any time, notify the clerk and the judgment-creditor in writing of reasons why the levy should be reduced or discontinued.

The motion judge opined that the quoted language must be included in the "writ or order of execution."

Appellants' counsel argues that Rule 4:59-1(d) requires that only the writ, and not the order authorizing the writ, must include the provisions required by Rule 4:59-1(d). Appellants' counsel submits that the Supreme Court Committee on Civil Practice, in its 2004 proposed amendments to Rule 4:59-1(d), recommended that the order for wage execution shall include a provision directing the employer to immediately give the judgment-debtor a copy of the wage execution order and shall include a provision that the judgment-debtor at any time may notify the clerk and the judgment-creditor in writing of reasons why the levy should be reduced or discontinued. Appellants' counsel points out that the final rule, as adopted after comment on the proposal, did not include the proposed language requiring the employer to give respondent a copy of the order, but rather required employer to immediately give the judgment-debtor a copy of the writ, which writ was required to contain the language notifying the judgment-debtor of his or her right to further object to the garnishment. Counsel for appellants further supports their arguments by referring to Appendix XII-E, Writ of Wage Execution, which contains the language required by Rule 4:59-1(d) as amended, effective September 1, 2004.

Central to our examination of these appeals is Rule 4:59-1 and the process to enforce judgments in the Law Division, as well as the Special Civil Part. After a Special Civil Part judgment has been docketed in the Law Division, if a judgment-creditor seeks execution against the judgment-debtor's wages, it must proceed by filing in the Law Division a notice of wage execution containing the requirements set forth in Rule 4:59-1(d). That notice must be served on the judgment-debtor in accordance with the rules. A judgment-debtor is accorded ten days after service of the notice to file reasons why the order should not be entered. R. 4:59-1(d)(3). If the judgment-debtor does not give notice within that time frame, the order will be entered accordingly. R. 4:59-1(d)(4). If a judgment-creditor's attorney has received no objection within the required time frame, an order for wage execution is forwarded to the court for signature. The order authorizes execution against the judgment-debtor's wages, but does not serve as the writ of execution. Assuming the order is in proper form, the motion judge signs the order and returns it to counsel. Counsel then forwards a writ of wage execution to the office of the court clerk for execution. See R. 4:59-1(d); Pressler, Current New Jersey Court Rules, Appendix XII-E to R. 4:59-1 at 2374 (2007). Upon return of the writ, after execution by the clerk, the judgment-creditor's counsel proceeds to execute on the wages by delivering the writ to the sheriff.

In the Special Civil Part, the procedure is the same as that under Rule 4:59-1(d) except that the order, certification and execution against earnings are combined into one form. See Pressler, Current New Jersey Court Rules, Appendix XI-J to R. 4:59-1 at 2344 (2007). That form, entitled "Wage Execution," includes the writ provisions required by Rule 4:59-1(d), as the order also acts as the writ of execution.

It appears to us that the denial by the motion judge of appellants' counsel's application arises from this difference. We note that the submitted order for wage execution language ordered, "that execution issue against the earnings" of the judgment-debtor, whereas the language in Appendix XI-J states that, "the employer is ordered to deduct from the earnings" of the judgment-debtor's specified amounts. In the Law Division, the additional step of obtaining a writ of wage execution is necessary. Therefore, in the Law Division, the order and the writ are two separate documents and counsel's argument that the language, which must be required to be included in the writ pursuant to Rule 4:59-1(d), is not required to be included in the order is technically correct.

However, we note that under the process outlined above regarding judgments docketed in the Law Division, a motion judge presented with the writ for his or her signature would never be in a position to make sure that the notice requirements of Rule 4:59-1(d), which must be included in a writ of wage execution, are, in fact, included. We note that comment 3 to Rule 4:42-1, which deals with resolving the form of orders, states that a court is free to enter an order without a hearing and despite objections if, for example, it is satisfied that the form comports with its directives and a court may also amend a form of order submitted. See Pressler, Current N.J. Court Rules, comment 3 to R. 4:42-1 (2007). That comment, together with a judge's inherent power to enter orders that properly reflect its directives would, subject to the abuse of discretion standard, permit the motion judge in this case to require that the Law Division order for wage execution include in it a requirement that the writ to be issued pursuant to the order contain the required language set forth in Rule 4:59-1(d).

Therefore, while we agree with appellants' counsel that the order itself need not contain language which directs the employer to immediately give the judgment-debtor a copy of the order and a provision that the judgment-debtor may at any time notify the clerk and the judgment-creditor in writing of the reasons why the levy should be reduced or discontinued, a judge may, in his or her discretion, require the order for wage execution to include a provision that the writ to be issued contain such language.*fn2 In that fashion, the motion judge can be assured that counsel, in drafting the writ, will include the language required by Rule 4:59-1(d).*fn3

We note that it is unfortunate that appellants' counsel did not file a formal motion for reconsideration and request oral argument so that this issue could have been discussed at length between the motion judge and counsel and resolved. However, as that was not the case, we reverse the motion judge's denial of the order and remand the matter for reconsideration.

Reversed and remanded.


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