February 8, 2011
ROBERT J. TRIFFIN, PLAINTIFF-APPELLANT,
GENIEVA BROADUS, DEFENDANT-RESPONDENT,
NEWARK PUBLIC SCHOOLS, RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-25717-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 31, 2011
Before Judges Reisner and Sabatino.
Plaintiff Robert J. Triffin appeals from a December 4, 2009 order of the Special Civil Part denying an order to show cause that he filed against the Newark Public Schools. We affirm.
Triffin is in the business of purchasing assignments of dishonored checks and attempting to collect on them. See Triffin v. Quality Urban Hous. Partners, 352 N.J. Super. 538, 540 (App. Div. 2002). Triffin obtained an assignment from Mordan Check Cashing, Inc. of a $2,759.55 check which Mordan had cashed for defendant Genieva Broadus, but which was later dishonored by the bank.
Triffin sued Broadus, alleging in his complaint that she had issued a counterfeit check. Although Triffin was an assignee of the check, he also sought treble damages under the Consumer Fraud Act, N.J.S.A. 56:8-19. See Levy v. Edmund Buick-Pontiac, Ltd., 270 N.J. Super. 563, 566 (Law Div. 1993)(holding "that an assignee lacks standing to sue under the Consumer Fraud Act"). In her answer, Broadus asserted that someone had mailed her the check, telling her that she won a sweepstakes but needed to deposit the check and send him the proceeds in order to receive her winnings. Apparently unrepresented by counsel, Broadus settled with Triffin at mediation, agreeing to pay $3840 in installments, or $13,741 if she failed to pay the installments. When she defaulted, Triffin sued to collect the $13,741 and obtained a wage execution, which he served on Broadus' then employer, the Newark Public Schools (School).
Upon receiving the wage garnishment order, the School notified the constable in writing on April 26, 2007 that Broadus was "a substitute and only works when called" and that "wage attachment deductions are sporadic and can only occur when the employee is entitled to receive a paycheck." The School remitted garnishment amounts through May 23, 2008. On November 5, 2009, Triffin filed an order to show cause (OSC) seeking to have the School held "in contempt" of the wage execution and seeking payment of any funds paid to Broadus in violation of the wage execution. See N.J.S.A. 2A:17-54. When asked at oral argument of this appeal whether, before he filed the OSC, he had contacted the School to find out if Broadus was still employed there, Triffin claimed no personal knowledge of whether "his office" had done so. Nonetheless, in support of his OSC, he filed a sworn certification attesting that "Newark Public Schools does not claim that Broadus is [no] longer employed by it."
On November 17, 2009, the School filed opposition, noting various deficiencies in Triffin's pleadings. The School also objected to Triffin's proceeding by order to show cause, because that expedited process gave the School inadequate time to collect evidence to defend itself. Although the OSC had requested oral argument if opposition was filed, Triffin failed to appear at the argument of his OSC on December 4, 2009. Rather than dismissing the OSC for lack of prosecution, the judge allowed the School, whose attorney had appeared, to present documentation in its defense. The School's documents established that Broadus no longer worked there, and that the School had garnished her wages on those intermittent occasions when she was employed there. Triffin had submitted no legally competent evidence to the contrary. The judge dismissed the OSC, finding that "Ms. Broadus [is] no longer employed" by the School and that the School had complied with the wage execution order.
On this appeal, Triffin contends that the trial court's findings of fact are not supported by the record. We disagree. While the School's initial brief in opposition to the OSC was not accompanied by supporting evidence, the School thereafter presented evidence at the oral argument hearing, a development of which Triffin would have been aware had he appeared. There is sufficient credible evidence in the record to support the judge's decision. R. 2:11-3(e)(1)(A).
Triffin further contends that, for reasons he does not articulate, the trial court did not conduct the OSC hearing properly. Triffin is correct that Snelling & Snelling v. Goyden, 181 N.J. Super. 479, 480 (App. Div. 1981), permits the holder of a wage execution order to proceed by OSC to enforce that order. However, in Snelling, the employer affirmatively refused to comply with the garnishment order and refused to explain its reasons to the constable or the plaintiff. Ibid. Here the School complied with the order, and put the constable on notice from the beginning that the garnishment would be sporadic because Broadus was only a per diem employee. Triffin's argument on this point is without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Finally, as noted earlier in this opinion, there is no proof in this record that Triffin made any preliminary effort to determine why the School had stopped garnishing Broadus' wages. Instead, he filed an OSC seeking to hold the School "in contempt" of a court order, without any supporting evidence that Broadus was still employed there or that the School had failed to respond to his inquiries. Cf. Snelling, supra, 181 N.J. Super. at 480. OSC filings should be supported by legally competent evidence of a good faith effort to determine whether the employee who is the subject of the garnishment order is still employed by the subject employer.
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