On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. DC-6722-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 26, 2012 -
Before Judges Grall and Skillman.
Defendant Peter DiPietro appeals from a judgment in favor of plaintiff Hann Financial Services Corp. in its action to collect a deficiency defendant allegedly owed on a retail installment contract for his purchase of a motor vehicle, and he challenges the dismissal of his counterclaims for damages and punitive damages on his allegations of breach of the peace, fraud and consumer fraud.*fn1 The judgment was entered on plaintiff's summary judgment motion, which had been adjourned to the trial date scheduled in the Special Civil Part. It awards plaintiff $14,463.01, which includes a $12,649.16 deficiency, $333.58 for costs of the repossession and sale, $120 for late charges and a title fee, and attorney's fees in the amount of $1360.27.
The evidence submitted on the motion is inadequate to establish an essential element of plaintiff's claim for deficiency - the commercial reasonableness of Hann's sale of the vehicle following its repossession. Accordingly, we reverse the grant of summary judgment and remand for further proceedings in conformity with this opinion. On remand, the court should clarify its dismissal of defendant's counterclaims, which was stated on the record but not referenced in the judgment.
In May 2006, defendant purchased a used 2003 Dodge RAM from Auto Lender's Liquidation Center for $20,649, and he financed the purchase with a retail installment contract. Pursuant to that contract, defendant was obligated to pay $424.16 monthly, making the total "sale price" $30,539.52. The contract stated that it would be "assigned (transferred) to Hann Financial Services Corp." and that payments were to be made to the assignee directly.
There is no dispute that defendant defaulted by failing to make a payment due. Upon the terms of the retail installment contract, this default gave the assignee the right to accelerate all sums due and owing, peaceably enter premises to take possession of the vehicle, treat personal property in the vehicle that is not claimed within seven days of the repossession as abandoned, and the "right, as provided by law," to retain the vehicle or sell it and collect the deficiency. It further authorizes the assignee to collect its costs and any attorney's fees incurred in a collection action.
"Early" one morning, plaintiff's agents appeared at defendant's home to repossess the vehicle and pounded on his front door. The agents "pressed" defendant and his wife to remove their personal items from the vehicle before towing it from their driveway. According to defendant, his family did not have adequate daylight to retrieve all of the personal property they had in the car, but the record does not include a list of items lost or any evidence that defendant advised the plaintiff of a claim for any item left in the vehicle in the week following the repossession.
Plaintiff sold the vehicle in July 2008 for $5200, when the balance due on the contract was $17,849.16. Plaintiff incurred $333.58 in connection with the repossession and sale and attorney's fees in the amount of $1360.27. Plaintiff charged defendant an additional $120 that includes a late charge and title fee. Apart from a certification prepared by plaintiff's paralegal, which asserts that the vehicle was "sold in a commercially reasonable manner" and references a charge incurred for publication of a notice in a newspaper, the record includes no information about the sale.*fn2 Defendant, relying on a used car guide published by the National Automobile Dealers Association, asserts that the value of the vehicle was about $7500 at the time of the repossession.
Defendant opposed plaintiff's motion for summary judgment. He presented no evidence other than that referenced above to raise an inference of fraud in the formation or performance of the contract precluding enforcement, or relevant to the commercial unreasonableness of the sale or to circumstances warranting an offset based on plaintiff's breach of the peace during the repossession.
On appeal defendant presents the ...