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T & C Leasing, Inc v. Wachovia Bank

July 8, 2011

T & C LEASING, INC., PLAINTIFF-APPELLANT,
v.
WACHOVIA BANK, N.A., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6442-09.

The opinion of the court was delivered by: Axelrad, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued: February 16, 2011

Before Judges Axelrad, Lihotz*fn1 and J.N. Harris.

The opinion of the court was delivered by AXELRAD, P.J.A.D.

At issue in this appeal is whether a post-judgment bank account levy creates an ongoing restraint in the creditor's favor under Article 7 of the State's execution statutes, N.J.S.A. 2A:17-50 to -56.66, requiring the bank to turn over to the creditor funds deposited into the debtor's account after service of the writ on the bank. The trial court held the bank had no such continuing obligation. We affirm.

The facts are undisputed. In September 2008, plaintiff T & C Leasing, Inc. (T & C) obtained a default judgment against International Entrees Corporation (IEC) and Frederick W. Braman, III (collectively the debtors) in the amount of $75,783.52. On October 6, 2008, T & C secured a writ of execution, containing a rider directing the Camden County Sheriff to levy first on personal property belonging to the debtors. Pursuant to the rider, the sheriff was directed to levy upon a variety of items of personalty, including "[a]ny and all bank accounts titled to or held by [the debtors], individually or collectively, at any bank or other financial institutions in your county . . . ."

An April 21, 2009 sheriff's affidavit reported the levy had been successfully served on April 20 on a local branch of defendant, Wachovia Bank (Wachovia), and $1,890.82 in funds contained in the IEC bank account were available to the creditor.*fn2 The affidavit, in part, also contained the following computer-generated statement: "I hereby levy upon: any and all bank accounts, including CD's and any other monies due or to become due . . . as of 4/15/2009, $82,752.02 including judgment, costs, interest, and sheriff's fees."

On April 29, 2009, the sheriff sent a notice to the debtors, with a copy to T & C pursuant to Rule 4:59-l(g). The notice stated that $1,890.82 had been levied upon at the bank at the instruction of T & C but the funds would not be taken from the account until ordered by the court.

On December 18, 2009, T & C obtained an order for turnover of funds directing Wachovia to pay the sheriff the $1,890.82 held in the IEC account pursuant to the writ of execution in partial satisfaction of the judgment. Wachovia did so on December 24, 2009.

T & C subsequently learned that $80,982.73 had been deposited into the IEC bank account from April 22 to May 29, 2009. It also ascertained that Braman had issued checks from this account payable to himself, cash, and others during this period.

On December 23, 2009, T & C filed suit against Wachovia, claiming it failed to honor the levy in violation of the execution statutes as it paid to the debtor or on its behalf funds subsequently deposited into the account. T & C sought a judgment pursuant to N.J.S.A. 2A:17-54 for the amount paid out by the bank in excess of the levy. T & C filed an answer.

On March 1, 2010, T & C moved for summary judgment. T & C posited that the execution had continuing effect and Wachovia was required to turn over any additional funds deposited into the account after the writ of execution was served until the underlying judgment was satisfied. T & C relied on N.J.S.A. 2A:17-50, authorizing execution against "wages, debts, earnings, salary, income from trust funds, or profits" that are "due and owing to the judgment debtor, or thereafter become due and owing to him . . ." and N.J.S.A. ...


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