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New Century Financial Services, Inc. v. Dharmaraj

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 8, 2009

NEW CENTURY FINANCIAL SERVICES, INC., PLAINTIFF-APPELLANT,
v.
KARUPPANNA DHARMARAJ, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-9289-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 27, 2009

Before Judges Reisner and Alvarez.

This is a collection action. Plaintiff New Century Financial Services, Inc. appeals from an August 29, 2008 order denying its motion for partial reconsideration of an earlier order dated July 3, 2008, which reduced by $109.60 the amount of defendant's seized funds to be turned over to plaintiff.

Defendant debtor, Karuppanna Dharmaraj, did not object to the turnover order and did not file any opposition to this appeal. We reverse and remand for entry of an order directing the Sheriff to turn over to plaintiff the amount of $999.10 instead of $889.50.

Based on the record presented to us in plaintiff's appendix, it appears that plaintiff filed an action to collect a consumer debt of $21,327.40. On February 21, 2001, the parties entered into a consent judgment in which judgment was entered in favor of plaintiff for $21,889.55, but plaintiff agreed to refrain from applying for a wage execution conditioned on defendant's paying off the debt at the rate of $400 per month. According to plaintiff's brief, defendant paid off most of the debt but missed one $400 payment when a check bounced. On December 4, 2006, plaintiff obtained a writ of execution for the remaining debt of $1,638.97. Although the endorsement on the writ did not explain how plaintiff calculated the interest on this debt and it appears from plaintiff's brief that at the time his check bounced defendant had paid more than the amount specified in the consent order, defendant did not object to the entry of the writ.

Plaintiff levied on defendant's bank account and obtained turnover orders for the levied sums of $687.80 and $61.67, for a total of $749.47. On March 27, 2008 the Sheriff seized an additional $999.10 from defendant's bank account and plaintiff sought an order for turnover of these funds. The application was supported by a certification that $1,032.65 remained on the debt. The application was initially denied based on plaintiff's failure to include a copy of the "judgment." Plaintiff filed a motion for reconsideration, on notice to defendant, enclosing a copy of the consent judgment of February 21, 2001.

By order dated July 3, 2008, the court entered an order granting reconsideration and ordering the turnover of $889.50. The order noted the court's calculation, subtracting the prior levy of $749.47 from $1,638.97. In a second motion for reconsideration, plaintiff explained that the additional sums it was seeking were comprised of $173.15 in additional filing fees, Sheriff's fees and additional accrued interest. Again, defendant did not object to this motion. The trial court denied the motion noting that plaintiff had not demonstrated that the original order was palpably incorrect.

After reviewing the record, we are compelled to note that it was plaintiff's burden to set forth its calculation of the amounts it sought; the court was not obligated to rubber stamp the application or to intuit that plaintiff was seeking an additional $173.15 in filing fees and interest. Since defendant obviously has no objection to paying these additional sums, we reverse and remand for entry of an order for turnover of an additional $109.60.

Reversed and remanded.

20090508

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