DEBORAH DIGIOVANNI VS. SAKER SHOP RITES, INC.,ET AL.(L-4465-11, MONMOUTH COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4370-14T2
ROBERT J. TRIFFIN,
Plaintiff-Appellant,
v.
MID POINT RECYCLING, LLC,
a/k/a MID PAST RECYCLING,
a/k/a NU WAY RECYCLING,
ALLEN E. HAIRSTON, II,
JULIAN PORTER and R.
VINCENT BOVE,
Defendants,
and
TD BANK, N.A.,
Garnishee-Respondent.
____________________________________
Argued January 24, 2017 – Decided February 14, 2017
Before Judges Messano and Espinosa.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket
No. DC-24700-13.
Robert J. Triffin, appellant, argued the
cause pro se.
Michael J. Watson argued the cause for
respondent (Brown & Connery, LLP, attorneys;
Mr. Watson and Jeffrey R. Johnson, on the
brief).
PER CURIAM
Plaintiff Robert J. Triffin purchased a dishonored check from
a check cashing agency drawn on Account Number 4250540535 1 in the
name of Mid Point Recycling LLC (Mid Point). He then sought to
collect that amount from Mid Point and obtained a default judgment
in the amount of $943.05. On April 7, 2014, a Writ of Execution
and levy was issued for service by a constable upon TD Bank, N.A.
The return on the levy, dated April 21, 2014, reflects TD Bank's
response of "no accounts" and a handwritten notation: "4250540535
copy of check."
Triffin appeals from an order entered on April 10, 2015, that
denied his motion for an order to show cause (OTSC) why TD Bank
should not be found in contempt "for its failure to fully disclose
the status of all accounts and all property and monies, TD Bank
owed to" Mid Point and why it should not be liable for the full
amount of a writ of execution entered against the judgment debtor.
In support of this motion, Triffin submitted a certification
in which he referred to the constable's report of April 2014 and
1
According to the record, this is not an "active financial account
number" and therefore is not confidential. R. 1:38-7(a).
2 A-4370-14T2
attached as exhibits email correspondence between his office and
one "Mev Kira" with an email address of mev@evictionsnj.com. In
one of those emails, Mev Kira stated the account was closed and
asked if Triffin had a Tax ID. Communications from Triffin and
Rita Genovese, his Director of Operations, to Kira state a second
dishonored check had been purchased that was drawn on a different
Mid Point account at TD Bank. The exhibits indicate that the
constable was copied on some of the emails referencing the account
for the second dishonored check. During the period from July 2014
through March 2015, there were repeated requests to Kira to
ascertain the status of the bank levy.
On March 11, 2015, approximately one year after the levy was
first served, Genovese sent an email directly to Jason Sbalcio,
Legal Processing Manager for TD Bank. The email states that a copy
of a dishonored check issued on July 18, 2014 drawn on a different
account number is attached and requests information on the status
of that account and the levy. The email represents that this
check was presented to the bank by the constable when he served
the levy. However, the date of the check reported in the email
indicates the check was issued three months after the levy was
served.
Sbalcio replied promptly by email the same day, informing
Triffin, "We only communicate with the Constable in these matters.
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Constable Bove's office can contact us at 856-380-2675 to receive
a status." Triffin filed the motion that is the subject of this
appeal five days later.
The motion did not seek any emergent or injunctive relief.
Triffin argued he had made five requests of the constable and "one
request of TD Bank's levy department manager, Jason Sbalcio, and
all to no avail, to resolve the status of Mid Point's referenced
unaccounted for second checking account." Characterizing TD
Bank's conduct as "egregious unclean hands in refusing to account
for Mid Point's missing second account," Triffin asked the court
to hold TD Bank liable for the full amount of the writ of execution
with levy.
In opposing the motion, TD Bank argued: service of the OTSC
upon TD Bank by email was ineffective; the OTSC was procedurally
deficient because it was not accompanied by a verified complaint
or affidavit as required by Rule 4:67-2(a); the claims asserted
and relief sought are not available through an OTSC or application
to proceed summarily pursuant to Rule 4:67; the motion to hold TD
Bank liable for the judgment lacks merit.
The trial judge denied Triffin's requests for relief and
issued a written statement of reasons. Citing Rules 4:52-1 and -
2, the judge found Triffin's failure to file a verified complaint
or affidavit as grounds for the denial of the motion.
4 A-4370-14T2
On appeal, Triffin argues that Rasner v. Carney, 108 N.J.L.
426 (Sup. Ct. 1932) created "a full and complete remedy at law to
redress a garnishee's failure to respond to a properly served and
substantively complete garnishment execution" and that the trial
court erred in failing to abide by that holding. He also argues
TD Bank waived: (1) any challenge to the efficacy and service of
the writ of execution with garnishment and (2) any argument that
the second checking account was not open or lacked sufficient
funds to satisfy the judgment. After reviewing these arguments
in light of the record and applicable principles of law, we
conclude they lack sufficient merit to warrant discussion beyond
the following brief comments. R. 2:11-3(e)(1)(E).
As we have noted, Triffin did not seek emergent or injunctive
relief. Therefore, the requirements of Rule 4:52-1 do not apply.
Still, because Triffin's motion was properly denied for other
reasons, we affirm. See Do-Wop Corp. v. City of Rahway, 168 N.J.
191, 199 (2001) ("[A]ppeals are taken from orders and judgments
and not from opinions, oral decisions, informal written decisions,
or reasons given for the ultimate conclusion."); Velazquez v.
Jiminez, 336 N.J. Super. 10, 43 (App. Div. 2000), aff’d, 172 N.J.
240 (2002).
The chronology of events as reported by Triffin reflects that
one request was made of TD Bank to inquire into a second Mid Point
5 A-4370-14T2
account; that the bank promptly replied it would discuss the matter
only with the constable and provided contact information; and that
five days later, the motion seeking a judgment against the bank
on equitable grounds was filed.
Rasner was the sole support provided for this demand. Triffin
argues that the court held a garnishee's failure to either deny
or admit that a garnishee owes a debt to a judgment debtor is
tantamount to a garnishee's conclusive admission that the
garnishee owes a debt to a judgment debtor for the amount levied
upon.2 Triffin's reliance is misplaced.
In Triffin's view, the garnishee was required to admit or
deny the debt owed by the judgment debtor and, failing to do so,
the garnishee became liable for the full amount of the judgment.
But neither the statute relied upon in Rasner nor N.J.S.A. 2A:17-
63, its current iteration, is designed to shift the obligation of
a judgment debtor to a garnishee who owes no debt to the judgment
creditor. Rasner recites the relevant statutory authority as
follows:
[A]fter levy shall have been made upon any
debt due from a third person to the judgment
2
The language in Rasner relied upon by Triffin to the effect
that a failure to admit or deny is tantamount to a conclusive
admission was explicitly rejected by the Court of Errors and
Appeals in Beninati v. Hinchliffe, 126 N.J.L. 587 (E. & A. 1941).
The Court made clear that an order under the relevant statute "may
be made only when the garnishee admits the debt." Id. at 590.
6 A-4370-14T2
debtor the court may make an order upon such
garnishee and the judgment debtor to show
cause why the said debt to an amount not
exceeding the sum necessary to satisfy the
execution shall not be paid to the officer
holding the same; and upon the hearing had on
the return of the order to show cause may
require the garnshishee to pay said debt if
he admits it, to the officer holding the
execution.
[Id. at 428-29 (emphasis added).]
The language, "if he admits it" relates to whether the
garnishee admits having a debt due to the judgment debtor. The
statute was therefore applicable in Rasner, where the levy was
upon rents due to the judgment debtor from her tenants. Id. at
427.
Triffin sought to levy upon an account owned by the judgment
debtor, not upon any debt TD Bank owed to the judgment debtor.
Therefore, neither Rasner nor N.J.S.A. 2A:17-63 provide any
authority for the relief sought in his motion.
Affirmed.
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