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Bank One, N.A., By and Through Its Servicing v. Kevin John Witasick and Whitney S. Witasick

May 27, 2011

BANK ONE, N.A., BY AND THROUGH ITS SERVICING AGENT, SYSTEMS & SERVICES TECHNOLOGIES, INC., PLAINTIFF-RESPONDENT,
v.
KEVIN JOHN WITASICK AND WHITNEY S. WITASICK,
DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-427-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2010

Before Judges Cuff, Fisher and Sapp-Peterson.

In this appeal defendants, Kevin and Whitney S. Witasick, challenge the trial court order granting summary judgment in favor of plaintiff, Bank One, N.A., by and through its servicing agent, Systems & Services Technologies, Inc. (SST), on its liability claim for breach of contract, conversion, and replevin and dismissing defendants' counterclaim alleging violations of the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20; the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§ 1692 to -1692p; and the Fair Credit Reporting Act (FCRA), 15 U.S.C.A. §§ 1681 to -1681x. We affirm.

Plaintiff entered into a financing agreement for defendants' purchase of a motor home in 2000. Defendants made regular payments for approximately eighteen months and thereafter commenced a pattern of late payments that sometimes resulted in their making double and triple payments on the loan. Notwithstanding this pattern, plaintiff continued to accept payments from defendants made on an irregular basis until August 2008. At that time, plaintiff accelerated the loan and attempted to repossess the motor home but was unsuccessful because defendants did not cooperate in turning over the vehicle.

In March 2009, SST filed a three-count complaint against defendants alleging breach of contract and conversion, and seeking damages and a writ of replevin. Plaintiff sought the entry of judgment in the amount of $71,013.14, which represented the balance due on the loan, plus interest at the rate of $18.49 per day from March 5, 2009, and attorney's fees and costs.

Default was entered against defendants on May 6, 2009, but later vacated. Defendants filed an answer denying the allegations and asserting a counterclaim alleging violations of the CFA, FDCPA and FCRA. Plaintiff filed an answer denying all of the allegations set forth in the counterclaim.

On September 1, 2009, SST moved for partial summary judgment on the issue of defendants' liability and also sought dismissal of defendants' FCRA claim. On October 9, the court issued an order granting plaintiff's motion, finding that defendants were in default on the loan. The court also dismissed defendants' FCRA claim. The order denied the entry of judgment as to damages, stating: "Exact amount of Judgment to be determined once def[endant] produces full acc[ounting] to Pl[aintiff] on or before 10-20-09, [and] deficiency, if any, is determined. Full accounting means a list of all payments, dates made [and] alleged balances." The order also granted full possession of the collateral to plaintiff and authorized the "Sheriff of whichever County the Vehicle may be located [in]" to seize it. Further, the order directed that defendants cooperate in the surrender of the vehicle and ordered defendants to report the location of the vehicle to plaintiff's attorney within seven days.

Plaintiff subsequently filed a second summary judgment motion seeking the entry of judgment on the balance of its claims and dismissal of the remaining counts of defendants' counterclaim. Plaintiff submitted a certification in support of the motion from its representative, Tammy Wilson, who asserted that defendants failed to comply with the court's October 9 order by providing an accounting. She also certified that the vehicle had been seized in late October and defendants were notified of their right to redemption, but as of the filing of the motion, had failed to do so. Finally, Wilson certified that the vehicle was pending sale but would not be sold "for two to three more months due in part to the upcoming holiday season being a very poor time of year to sell the Vehicle." Plaintiff additionally urged that it was entitled to summary judgment on the FDCPA and CFA counterclaims. Specifically, plaintiff argued that the FDCPA applies to debt collectors, not a holder of a loan, which in this case was Bank One. Likewise, the FDCPA does not apply to a loan servicer such as SST.

The court conducted oral argument on the motion on January 8, 2010. At that time, defense counsel represented to the court that the default entered in October 2009 was not "really the issue before the [c]court[.]" Defense counsel advised the court that defendants "don't dispute the payments and the dates of payments as recorded. The issue would be the interest that would be due[.]" Nonetheless, defense counsel raised three issues, two of which related to damages and one related to defendants' counterclaim.

First, defendants argued that plaintiff's motion was premature because the amount of the money judgment was not certain since the vehicle had not been sold, and if the vehicle was sold for less than $32,000, then defendants would be entitled to credits.

Second, defendants urged there were genuinely disputed issues of fact that plaintiff violated the CFA because plaintiff engaged in a course of conduct that acquiesced in defendants' underpayment and overpayment of the note for years, leading defendants to believe their method of payment was acceptable, and when finally there was payment made on August 28, 2008, that brought the note current, "there's a declaration of default, a demand for the accelerated amount due under the entire note, and a lawsuit filed shortly after that." Based upon these facts, defendants contended a jury could reasonably "find that there were false promises, false pretenses made here to secure certain funds. And, there was a type of bait and switch, not necessarily contemplated by the Consumer Fraud Act."

Third, defendants claimed establishing the exact amount due on the note was not their burden, and if there was a genuine question of fact in the court's mind related to credits ...


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