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Banc of America Leasing and Capital, LLC v. Fletcher-Thompson Inc.

Superior Court of New Jersey, Appellate Division

January 2, 2018

BANC OF AMERICA LEASING AND CAPITAL, LLC, Plaintiff-Respondent,
v.
FLETCHER-THOMPSON INC., MICHAEL MARCINECK and KURT BAUR, jointly and severally, Defendants-Appellants.

          Argued December 6, 2017

         On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. DJ-171959-15.

          Paul 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).

          Before Judges Fuentes, Koblitz and Manahan.

          KOBLITZ, J.A.D.

         Defendant Kurt Baur and his wife Kristi Baur[1] 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.[2] We reverse because the court did not require BOA to demonstrate that the funds levied belonged to Kurt alone.

         BOA 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.

         BOA 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 order.

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;

         Defendants 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 ...


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