BANC OF AMERICA LEASING AND CAPITAL, LLC, Plaintiff-Respondent,
FLETCHER-THOMPSON INC., MICHAEL MARCINECK and KURT BAUR, jointly and severally, Defendants-Appellants.
December 6, 2017
appeal from Superior Court of New Jersey, Law Division,
Mercer County, Docket No. DJ-171959-15.
F. Campano argued the cause for appellants (Curcio Mirzaian
Sirot, LLC, attorneys; Paul F. Campano, of counsel; Jessica
A. Tracy, on the brief).
Michael Korik argued the cause for respondent (Law Offices of
Charles A. Gruen, attorneys; Charles A. Gruen, of counsel and
on the brief; Michael Korik, on the brief).
Judges Fuentes, Koblitz and Manahan.
Kurt Baur and his wife Kristi Baur appeal from a September 16,
2016 order denying Kurt and Kristi's motion to vacate a
bank levy and from a September 26, 2016 order granting
plaintiff Banc of America Leasing & Capital, LLC's
(BOA) motion to turn over the funds in a joint account in the
names of Kurt and Kristi. Kristi is neither a judgment debtor
nor a party to the underlying debt. We reverse because the court
did not require BOA to demonstrate that the funds levied
belonged to Kurt alone.
obtained a default judgment in the State of Michigan on July
15, 2015, in the sum of $361, 093.47, plus interest, against
defendants Fletcher-Thompson Inc. (F-T), Kurt, and Michael
Marcineck pursuant to a lease between BOA and F-T, guaranteed
by Kurt and Marcineck. BOA domesticated and registered the
Michigan judgment in New Jersey in September 2015. A writ of
execution for a bank levy was issued to the Mercer County
Sheriff, who served it on PNC Bank. The levy froze the funds
of a joint account held in both Kurt and Kristi's names
in the amount of $20, 523.83 in January 2016. Kristi claims
that the funds in the joint account are her personal property
derived primarily from her pension, as well as her earnings
and tax refunds.
filed a motion for turnover of the levied funds, which both
Kurt and Kristi opposed. Before the motion court ruled on the
motion, however, BOA and defendants entered into a consent
The consent order states in pertinent part:
1. The funds levied from the bank account of the Defendant,
Kurt Baur, at PNC Bank, in the amount of $20, 523.83, shall
be replaced by the Defendants, with other funds of the
Defendants in the same amount ("replacement
funds"), within thirty (30) days from the date hereof,
by wire transfer .... Upon receipt of the wire transfer, the
levied funds shall be released by Plaintiff's counsel
back to the Defendants. The levied funds shall remain frozen
until Plaintiff's counsel has confirmed that the wire
transfer of the replacement funds has been received ....
2. Defendants shall remit the sum of $25, 000 per quarter ...
by wire transfer . . . until Plaintiff's Judgment is paid
in full; and
3. The Defendants shall also remit the sum of $6, 00 0 per
month, by wire transfer . . . commencing on May 1, 2016, also
until Plaintiff's Judgment is paid in full;
defaulted on their agreement to make payments and BOA filed a
new motion for turnover of the levied funds. Kurt and Kristi
once again opposed the motion and filed a motion to vacate
the levy, again claiming that the funds held in the joint