On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-3136-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher, Nugent and Carchman.
In this appeal, defendant Charles Bonnici argues that the trial judge erred in granting summary judgment on plaintiff The Provident Bank's claim for a deficiency judgment resulting from defendant's default on a $165,000 loan used to purchase a boat for $206,250 in March 2007. Specifically, defendant argues that the trial judge should not have summarily decided that plaintiff disposed of the collateral in a commercially reasonable manner by selling it for $57,500 in August 2009. We find no merit in this argument and affirm in most respects, remanding only with respect to the attorney's fee component of the judgment under review.
The record on appeal demonstrates that, on March 5, 2007, defendant entered into a loan agreement with First Commercial Corporation of America (First Commercial) for $165,000; defendant agreed to repay the loan by making monthly payments of $1344.40, for the following twenty years, secured by a mortgage on the boat. The loan agreement provided that, in the event of a default: the entire unpaid balance, including principal and interest, would become due; the lender would have the right to take possession and sell the boat; and the lender would be entitled to recover costs, including reasonable attorney's fees, associated with an action to enforce the agreement.
First Commercial assigned the promissory note and its other rights to plaintiff. In November 2007, plaintiff advised defendant he was in default on his payments. Defendant claims that he attempted to sell the boat during the summer of 2008 but eventually turned it over to plaintiff, which ultimately sold it to a third party for $57,500, reducing the outstanding balance on the loan.
On December 14, 2009, plaintiff filed a complaint, seeking a deficiency judgment, together with fees and other consequential relief. Defendant filed a counterclaim, which alleged a violation of the Consumer Fraud Act, breach of contract, breach of the implied covenant of good faith and fair dealing, unjust enrichment and misrepresentation. After a period of discovery, plaintiff successfully moved for summary judgment. The trial judge entered judgment in favor of plaintiff and against defendant in the amount of $193,806.07, which consisted of the principal amount due on the loan of $154,402.01, together with attorney's fees in the amount of $38,600.50, and costs of $803.56.
Defendant appeals, arguing:
I. SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED AS A GENUINE ISSUE OF MATERIAL FACT EXISTED AS TO WHETHER THE YACHT WAS SOLD IN A COMMERCIALLY REASONABLE MANNER, AS THE UCC DEMANDS.
II. THE STATUTE OF FRAUDS DOES NOT BAR [DEFENDANT] FROM EITHER DEFENDING AGAINST [PLAINTIFF'S] BREACH OF CONTRACT CAUSE OF ACTION OR ASSERTING HIS OWN SUBSTANTIVE COUNTERCLAIMS; GENUINE ISSUES OF MATERIAL FACT ARE PRESENT AS TO ALL CAUSES OF ACTION ASSERTED IN [PLAINTIFF'S] COMPLAINT AND [DEFENDANT'S] COUNTERCLAIM.
III. THE AWARD OF ATTORNEYS' FEES TO [PLAINTIFF] SHOULD BE REVERSED.*fn1
We reject the first two points but agree, in considering the third, that the claim for attorney's fees should be ...