GNOC T/A THE ATLANTIC CITY HILTON CASINO RESORT v. MICHAEL I. LAUTATO

 

+NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0448-04T2

GNOC T/A THE ATLANTIC CITY

HILTON CASINO RESORT,

Plaintiff-Appellant,

v.

MICHAEL I. LAUTATO,

Defendant-Respondent.

___________________________________________________

 

Argued February 8, 2006 - Decided March 15, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Atlantic County,

DJ-340399-97.

M. Richard Scheer argued the cause for appellants

(Craner, Satkin, & Scheer, P.A., attorneys; Mr.

Scheer on the brief).

Respondent did not file a brief.

PER CURIAM

Plaintiff GNOC t/a The Atlantic City Hilton Casino Resort, appeals from an order of August 6, 2004 denying its request for a turnover of funds by Washington Mutual Bank (the Bank), and an order of September 14, 2004 denying its motion for reconsideration. We reverse.

The facts are simple. Plaintiff obtained a default judgment against defendant Michael Lautato in the amount of $10,303.79. A writ of execution was issued by the Law Division on August 27, 2003, reciting a balance of $9309.61 due on the judgment, together with costs of $5.00, interest of $2981.44 and $54.48 for writ and mileage, for a grand total of $12,350.53. On September 5, 2003, the writ of execution was forwarded to the Middlesex County Sheriff with a request to levy on defendant's money on deposit with the Bank, specifically account #4442335265 and any other "accounts including but not limited to checking, savings, CDs, safe deposit or holiday club(s)."

On July 16, 2004, plaintiff moved for a turnover order, noticing both defendant and the Bank. In support of the motion, plaintiff's attorney certified to an annexed report from the Sheriff which showed that the writ had been served on an officer of the Bank on October 20, 2003, that a follow-up letter had been sent on December 29, 2003 (a copy being annexed) and that as of January 12, 2004, no response had been received from the Bank. On August 6, 2004, the return date of the motion, the motion judge entered an order on which the following notation was written: "[T]he request for turnover of funds is denied as no funds have been identified at this time to turn over."

Plaintiff moved for reconsideration, asserting in pertinent part:

5. A motion to turn over funds is forwarded to both the judgment debtor and the garnishee so that either party-in-interest may be heard as to any position it takes as to the rights to have funds turned over. After the levy, and upon notice to the parties-in-interest by motion, the burden to present evidence of payment or no funds upon which to levy becomes that of the defendant and garnishee.

6. Despite the fact that there was no objection to the Motion to Turn Over Funds, the Court's Order of August 6 indicates that "no funds have been identified at this time to turn over."

7. The plaintiff's levy notice served on October 20, 2003 and made part of Exhibit A indicates that a total of $12,355.01 was required to be levied and honored. There is no requirement that the Sheriff identify the source so levied, and the fact that the bank has failed to respond to the plaintiff's inquiry does not absolve the bank from the obligation to effectuate the levy, nor does its failure to respond indicate that no funds are identified as being on deposit and subject to the levy. Indeed, the contrary is the more likely since a lack of objection suggests the bank has no objection to the relief sought. The bank's opportunity to object to any turn over of the levied account is properly heard by the bank's objection, of which there was none, to the Motion to Turn Over Funds previously returnable August 6.

That motion, as well, was served on defendant and the Bank. The judge entered an order on September 13, 2004 denying the motion. In connection with that order, the judge filed a memorandum of decision which referred to the standard for granting reconsideration set forth in D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), and then stated:

In this case, plaintiff argues that the Sheriff is not required to identify the source levied. Further, plaintiff argues that a bank's failure to respond to the plaintiff's inquiry does not absolve the bank from the obligation to effectuate the levy. Plaintiff suggests that the Court "misconstrued the law with respect to the bank's obligation and the plaintiff's rights under a Motion to Turn Over Funds." However, plaintiff fails to cite any authority to support its argument or to show that the Court's initial order fell within the two enumerated guidelines set by the D'Atria court. Consequently, the Court will deny this motion.

We conclude that plaintiff's turnover motion should have been granted. We agree with plaintiff that there is no requirement that the judgment creditor identify specific funds that are or may be the subject of the order. In fact, the Sheriff's levy did identify at least one bank account and also informed the Bank that there might be a checking account in the name of Marianna Ferrar of which defendant was an authorized signatory. As noted, both defendant and the Bank were noticed of the turnover motion and neither objected. The failure of the Bank to respond to plaintiff's turnover application, of which it had notice, was "tantamount to an admission" that it had funds in its hands subject to the Sheriff's levy. Wildwood Trust Co. v. De Correvant, 20 N.J. Super. 559, 563, 564 (Ch. Div. 1952); Rasner v. Carney, 108 N.J.L. 426, 429 (Sup. Ct. 1932). See also N.J.S.A. 2A:17-63. If service is properly made and no objection is filed by the debtor or the garnishee, the turnover order should be granted as a matter of course. Morristown Mem. Hosp. v. Caldwell, 340 N.J. Super. 562, 564 (App. Div. 2001). The requirement that plaintiff identify specific funds subject to the levy was, in these circumstances, unwarranted.

Reversed with directions to enter the turnover order.

 

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A-0448-04T2

March 15, 2006