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Educap, Inc v. Shadwin Williams

January 14, 2013

EDUCAP, INC., PLAINTIFF-APPELLANT,
v.
SHADWIN WILLIAMS, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-4158-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 18, 2012

Before Judges Yannotti and Harris.

Plaintiff Educap, Inc. appeals from an order entered by the Law Division on April 13, 2012, which denied its motion pursuant to N.J.S.A. 2A:17-64 to require defendant Shadwin Williams (Shadwin) to pay certain monies out of his income to satisfy a judgment. We reverse.

This appeal arises from the following facts. Plaintiff made a student loan to Jaycee Williams (Jaycee), which was co-signed by her parents, Shadwin and Annie Williams. When Jaycee defaulted on the loan, plaintiff brought suit and a final judgment was entered on March 30, 2010, against defendants in the amount of $28,774.16.

In January 2012, plaintiff filed a motion pursuant to N.J.S.A. 2A:17-50(a) for a wage execution against Jaycee. Jaycee opposed the application in part. In a letter to the court dated January 20, 2012, Jaycee stated that she had been unable to pay the amount of $320 per month that plaintiff had insisted upon. She asserted that she could only afford to pay $50 per week from her weekly salary. After Jaycee provided the court with additional information concerning her income and expenditures, the court entered an order dated March 7, 2012, allowing an execution upon Jaycee's wages in the amount of $50 per week.

On March 14, 2012, plaintiff filed a motion pursuant to N.J.S.A. 2A:17-64 for an order requiring Shadwin to pay monies out of his income to satisfy the judgment. According to the certification of plaintiff's attorney, Jeffrey H. Ward (Ward), $26,879.16 remained due and owing on the judgment. Ward said that Shadwin had completed an information subpoena, which indicated that he was employed in New York and was earning a gross weekly salary of $675. Plaintiff sought an order requiring Shadwin to pay $67.50 per week until the judgment was satisfied.

Shadwin opposed the motion. In a letter dated April 2, 2012, he stated that it was "unclear" what plaintiff was seeking, since Jaycee had already been ordered to pay $50 per week to satisfy the judgment. Shadwin said he did not understand the legal complexity of the matter. He asked for the court's "kind and timely intervention" in the matter since it was posing a "serious hardship" upon him and his family.

The court placed the reasons for the order on the record. The court acknowledged that defendants were jointly and severally liable for the judgment. The court noted that they resided together, and Jaycee was already paying $50 per month out of her income to satisfy the judgment. The court stated that it was "satisfied that the equities require" denial of plaintiff's motion. The court entered an order dated April 13, 2012, denying plaintiff's motion. This appeal followed.

Plaintiff argues that the trial court erred by refusing to order Shadwin to pay a portion of his earnings to satisfy the outstanding judgment. We agree.

"There are two ways that a judgment creditor can reach a debtor's wages to satisfy a judgment against the debtor. He may proceed by wage execution, N.J.S.A. 2A:17-50 to -56 or by an order for installment payment pursuant to N.J.S.A. 2A:17-64." Iqbal v. Mucci, 371 N.J. Super. 65, 68 (App. Div. 2004) (citing Household Fin. Corp. v. Clevenger, 141 N.J. Super. 53, 56 (App. Div. 1976)). An order for installment payments entered pursuant to N.J.S.A. 2A:17-64 is directed towards the debtor, whereas a wage execution order entered pursuant to N.J.S.A. 2A:17-50(a) is levied upon the debtor's employer. Ibid. (citing Clevenger, supra, 141 N.J. Super. at 56).

The wage execution statute permits a judgment creditor to apply to the court and, "where any wages . . . are due and owing to the judgment debtor . . . to the amount of $48 or more a week" then, "upon satisfactory proofs, by affidavit or otherwise, of such facts, the court shall grant an order directing that an execution issue against the wages . . . of the judgment debtor." N.J.S.A. 2A:17-50(a). Once the judgment creditor submits the required proofs, the trial court has no discretion and must issue the requested wage execution. Greate Bay Hotel & Casino v. Guido, 249 N.J. Super. 301, 304 (App. Div. 1991).

Here, however, plaintiff did not seek a wage execution under N.J.S.A. 2A:17-50(a), presumably because Shadwin was employed in New York. Plaintiff therefore sought an order pursuant to N.J.S.A. 2A:17-64, requiring Shadwin to pay the judgment debt in installments out of his earnings. N.J.S.A. 2A:17-64 provides that if a judgment debtor is entitled to an income or any property or money or things in action, or rights and credits, including such income as is derived from federal, state, county, municipal or other governmental sources, but not income or property as is recovered or exempt by law, the superior court may direct the judgment debtor to make ...


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