On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-1929-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, R. B. Coleman and J. N. Harris.
Defendant Sharon Calandra appeals, on behalf of herself and a class of similarly situated consumers, from an order entered by the Law Division on a motion for reconsideration, which granted summary judgment in favor of defendant, Ford Motor Credit Company, LLC (Ford) and dismissed Calandra's counterclaims with prejudice, and also denied Calandra's motion for class certification. We affirm.
I. Ford filed a Special Civil Part complaint against Calandra on December 26, 2007, seeking to recover $9198.04 for breach of her automobile lease agreement. Calandra filed an answer and class action counterclaim, asserting violations of the Consumer Leasing Act (CLA), 15 U.S.C.A. §§ 1667a and 1667b (Count I); the Uniform Commercial Code (UCC), N.J.S.A. 12A:2A-504 (Count II); the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20 (Count III); the New Jersey Truth-In-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18 (Count IV); and the New Jersey Plain Language Act (PLA), N.J.S.A. 56:12-1 to -13 (Count V). On March 11, 2008, the matter was transferred to the Law Division. Discovery proceeded through 2009.
Calandra filed a motion for class certification in March 2010. While the motion was pending, Ford moved for summary judgment on its claim for the amount due on the debt and for dismissal of Calandra's counterclaims. On or about April 19, 2010, Calandra filed opposition and moved for partial summary judgment on the issue of Ford's liability for the statutory violations asserted in her counterclaims. Following oral argument, Judge James Hyland rendered an oral decision on June 22, 2010, memorialized in an order of that date, granting Ford's motion for summary judgment dismissing the second count of Calandra's counterclaim (the UCC claim) only, and denying Calandra's motion for partial summary judgment. By another order of the same date, the judge certified the matter as a class action with a specified subclass and designated Calandra as the representative on behalf of the class and subclass.
Ford moved for reconsideration. Calandra filed opposition and a cross-motion to compel discovery. Judge Hyland heard oral argument on August 30, 2010. On September 27, 2010, he issued a written opinion and entered an order granting Ford's motion for reconsideration, granting Ford's motion for summary judgment in its entirety and dismissing all of Calandra's counterclaims with prejudice, and entering judgment for Ford in the amount of $8125.35, plus interest and attorney's fees. This appeal ensued.
II. The underlying facts are undisputed and are derived from the pleadings and submissions filed with the motions. These included the certification of Steve Groene, Ford's Remarketing, Sales, Planning, and Distribution Manager; and the deposition testimony of Calandra, Robert Ragusa, an employee of Repossession Specialists, Inc. (RSI), Scott Gillen, the general manager of Open Road Mazda, Damisa Anderson, former team leader for Ford's repossession processes department, and David Nicosia, another Ford representative.*fn1
On May 12, 2006, Calandra leased a new 2006 MazdaSpeed6 (the vehicle) from Ryan Motors, d/b/a Open Road Mazda, a dealership in East Brunswick. The lease valued the vehicle at $30,557.08, and the adjusted capitalized cost was listed at $29,517.08. Calandra agreed to make twenty-four monthly payments of $435.00. The lease contained the following default provision in paragraph eleven:
DEFAULT You will be in default if (a) You fail to make any payment when due . . . or (e) You fail to keep any other agreement in this lease.
If you are in default, and do not cure the default where allowed by law, Mazda Credit may cancel this lease, take back the Vehicle and sell it at a public or private sale. You also give Mazda Credit the right to go on Your property to peacefully retake the Vehicle. Even if Mazda Credit retakes the Vehicle, You must still pay at once: (a) the difference, if any, between the Unpaid Adjusted Capitalized Cost and the value which could be realized at the sale of the Vehicle; plus (b) all other amounts then due under this lease. The value which could be realized at the sale of the Vehicle at your option will be: (a) the amount received by Mazda Credit upon the sale of the Vehicle at wholesale; or (b) as determined by a professional appraiser obtained at Your expense within 10 days from default, from an independent third party agreeable to Mazda Credit. You must also pay all expenses, including reasonable attorney's fees, payable by Mazda Credit to obtain, hold and sell the Vehicle, collect amounts due and enforce the Holder's rights under this lease. You authorize Mazda Credit to cancel Your insurance and apply any proceeds to your obligation. [(Emphasis added).]
Ryan Motors assigned its rights under the lease to Ford and sold the vehicle to it.
Calandra missed several payments within the first six months of the lease and in March 2007, she returned the vehicle to the dealership. By that time, Calandra had missed four monthly payments; she should have made eleven monthly payments for a total of $4785, but had only paid $3045, and was thus in default under her lease.
Ford hired RSI, a company that contracts with banks and finance companies, to transport the vehicle from the dealership to National Automobile Dealers Exchange (NADE) in Bordentown, an auction location for Manheim Auctions, Inc. (Manheim), where the vehicle was to be sold. Manheim is one of the independent auction houses nationwide with whom Ford contracts for the storing, repairing, appearance reconditioning, safeguarding, and auction sale of used vehicles owned by Ford. RSI charged Ford $175 for transporting the vehicle, which was a standard rate they negotiated for repossessions in which the lessee voluntarily surrendered the vehicle, as opposed to a higher rate for "involuntary" repossessions.
Ford authorized NADE to repair a dent in the right rear door of the vehicle for $45; put two gallons of gas in the vehicle so it could be driven around the auction floor and from the auction premises after sale, costing $7; and perform an "appearance reconditioning" of the vehicle to maximize its sales price, consisting of a complete detail, including steam cleaning of the engine, degreasing, shampooing the carpets, cleaning the interior, and polishing and waxing, at the standard negotiated rate of $72.50. NADE also charged Ford the standard negotiated rate of $85 for selling the vehicle at open auction. The expenses Ford incurred to transport, recondition and sell the vehicle at auction totaled $384.50. The vehicle ...