NEW CENTURY FINANCIAL SERVICES, INC. v. Patricia O. Venner

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1633-04T11633-04T1

NEW CENTURY FINANCIAL

SERVICES, INC.,

Plaintiff-Respondent,

v.

PATRICIA O. VENNER,

Defendant-Appellant.

__________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Axelrad and Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, DC-6228-04.

Patricia O. Venner, appellant pro se.

Pressler and Pressler, attorneys for respondent (Steven P. McCabe and Lawrence J. McDermott, Jr., on the brief).

PER CURIAM

Defendant Patricia O. Venner contends on appeal that the trial court erred when it entered judgment in favor of plaintiff New Century Financial Services, Inc., rejecting her claim that she had effected a settlement with New Century's assignor. We affirm.

Where the trial court has had an opportunity to evaluate the credibility of the witnesses and has made findings of fact, those findings are entitled to deference on appeal if supported by substantial, credible evidence in the record. Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). "[W]e do not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Fagliarone v. Twp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963).

At the conclusion of all of the evidence, the trial court found that there was no dispute that Venner applied for and was issued a Chase Mastercard and that as of May 30, 2000, the balance due was $6,294.71. The court also found that the account was ultimately assigned to New Century. With interest, the balance at the time of the trial was $7,066.26.

Venner interposed the affirmative defense of settlement, as to which she had the burden of proof. Cavanaugh v. Skil Corp., 164 N.J. 1, 4-5 (2000). On January 3, 2001, Chase wrote to Venner introducing its Chase Customer Assistance Team and explaining the programs that were available to address her financial situation, such as reduced payment programs and settlements. On April 13, 2001, Venner wrote to Chase and applied for a settlement up to fifty percent of the balance of the account because she could not qualify for any of the other programs. The response from Chase on May 5, 2001, informed her that it had closed the account due to her financial situation and invited her to call a Chase representative. On July 13, 2001, she received a collection letter demanding a minimum payment of $462. She paid only $110 on July 24, 2001. On February 28, 2002, Venner spoke with Brian Illopila, a Chase representation. Venner contends that she made an oral agreement to settle for a sum certain. However, she admitted at trial that when she asked for a receipt, Brian disconnected the call. Additionally, Venner never made the payment she contends was the settlement amount.

 
A settlement agreement will not be enforced where there is doubt as to the mutuality of agreement. Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 475-76 (App. Div. 1997). Here, there was substantial doubt that a settlement had been made by Chase. This is not a case where the settlement monies had been paid and the creditor then sued for the balance. The trial court concluded that no settlement had been effected, a conclusion that is supported by substantial credible evidence.

Affirmed.

(continued)

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A-1633-04T1

December 12, 2005