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Monmouth Internet Corp. v. ASCH Webhosting

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 16, 2010

MONMOUTH INTERNET CORPORATION, PLAINTIFF-RESPONDENT,
v.
ASCH WEBHOSTING, INC. AND MORTON SCHNEIDER A/K/A MORTON SCHNEIDER, JSA, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1620-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 20, 2010

Before Judges Gilroy and Sapp-Peterson.

In this appeal, Asch Webhosting, Inc. and Morton Schneider (collectively defendants), appeal from the June 12, 2009, order directing Sovereign Bank (Sovereign) to turn over funds from defendant Morton Schneider's joint bank account he holds with his spouse, Dr. Barbara Schneider, in the amount of $534.76 as partial satisfaction of a judgment entered against the defendants on April 20, 2007. The court ordered that Sovereign release to the account holders $4861.49, the balance of the previously levied funds held by the Bank. We affirm.

The dispute arises out of a complaint brought to recover the price of goods or services, or both, sold to defendants. Plaintiff's complaint sought to recover $30,118 on the account, $1355.31 in service charges, and $7529.50 in counsel fees, for a total judgment in the amount of $39,002.81, together with taxed costs. Defendants failed to answer or otherwise plead, and the court entered default judgment against them in the amount of $39,002.81 on September 27, 2005. Shortly thereafter, a writ of execution was issued. However, by order dated February 24, 2006, the court vacated the default judgment and granted defendants leave to answer or otherwise plead.

The matter ultimately proceeded to trial on plaintiff's demand, at that time, to recover damages in the amount of $228,000. The jury returned a verdict in favor of plaintiff and awarded $9000. In a separate proceeding, the court awarded prejudgment interest in the amount of $3275, $9000 in counsel fees, and $1075.40 in costs, for a total judgment of $22,450.40.

Sometime in late July or early August 2007, defendants paid $9750 towards satisfaction of the judgment. On August 13, 2007, plaintiff obtained a writ of execution, and on October 1, 2007, the Ocean County Sheriff levied on the Schneiders' joint account at Commerce Bank in the amount of $4278.24. The levy was followed by plaintiff's notice of motion seeking a turnover in the amount of the full judgment without credit for the sums that had already been paid. This motion was withdrawn and then refiled. Once again, the turnover amount sought did not reflect sums previously paid towards satisfaction of the judgment. On November 16, 2007, the court granted the motion as unopposed and ordered that Commerce Bank turn over $4278.24 in partial satisfaction of the judgment. On January 9, 2008, Commerce Bank turned over $4278 in partial satisfaction of the judgment, leaving a balance due on the judgment of $8422.16, exclusive of interest. Defendants subsequently filed a motion to vacate the writ of attachment and levy pursuant to Rule 4:60-11, which apparently was later withdrawn.

Plaintiff located an account of defendant Morton Schneider at Sovereign Bank and, on October 14, 2008, levied on this account for $4861.49. Defendants challenged the levy and provided the court with documentation from which the court found that Morton Schneider had deposited eleven percent of the funds into the account. The court conducted oral argument on the motion on May 21, 2009 and, during the course of the proceeding, offered to "take testimony and... look at evidence about what was withdrawn and what was deposited." Both attorneys agreed to forgo the hearing. The court directed both sides to "submit papers on this" and advised that it would decide the matter on the papers by June 12, 2009. On that date, the court orally rendered its decision. The court was satisfied the proofs submitted demonstrated the history of the deposits into the Sovereign account and concluded the evidence reflected that eleven percent of the total deposits in the account were from Morton Schneider and that the remaining eighty-nine percent of the deposited funds were from Barbara Schneider. The court granted the motion for the turnover of funds, but limited the amount of the turnover to $534.76 which is approximately eleven percent of the levied funds, and otherwise vacated the levy on the account. The present appeal followed.

On appeal defendants raise the following points for our consideration:

POINT I

THE LAW DIVISION COMMITTED REVERSIBLE ERROR IN APPLYING N.J.[S.A.] 17:16I-4 TO THE ABOVE-CAPTIONED MATTER.

POINT II

THE LAW DIVISION COMMITTED REVERSIBLE ERROR IN DETERMINING THAT IT POSSESSED THE JURISDICTION TO WRIT, LEVY AND ULTIMATELY TURN OVER FUNDS FROM THE "JOINT BANK ACCOUNT" OF... DEFENDANT-APPELLANT MORTON SCHNEIDER AND DR. BARBARA SCHNEIDER.

POINT III

THE LAW DIVISION COMMITTED REVERSIBLE ERROR IN DETERMIN[IN]G THAT THE LEVY WAS LEGAL AND ENFORCEABLE, AS THE LEVY FAILED TO ACCURATELY STATE THE SUM CERTAIN ALLEGED TO BE DUE [AND] OWING.

POINT IV

THE LAW DIVISION COMMITTED REVERSIBLE ERROR IN FAILING TO ADDRESS AND OTHERWISE TREAT THE "JOINT BANK ACCOUNT" AT COMMERCE BANK IN THE SAME MANNER IT TREATED THE SUBJECT MATTER SOVEREIGN BANK ACCOUNT.

We have considered the points raised in light of the record and applicable legal principles and are satisfied the arguments advanced are without sufficient merit to warrant discussion in a written opinion. Rule 2:11-3(e)(1)(E). We add only the following brief comments.

Although defendants' arguments challenge plaintiff's actions seeking to collect upon the judgment from the time it was entered in 2007, the notice of appeal relates to a single order, namely, the June 12, 2009 order. That order was limited to the October 14, 2008 levy that Barbara Schneider subsequently challenged in her February 6, 2009 motion. The court afforded the parties an opportunity for a hearing during oral argument on the motion in May 2009 and both parties declined that offer. The submissions to the court included Barbara Schneider's certification that "my husband's interest in the [Sovereign] account is severely limited. The large majority of funds deposited into our Sovereign Bank account are obtained from my earnings." In our view, the court's finding that only eleven percent of the funds on deposit with Sovereign are attributable to Morton Schneider is supported by the record and we discern no basis to disturb those findings.

Affirmed.

20100916

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