NEW CENTURY FINANCIAL SERVICES, INC. v. JACQUELINE C. ARELLANO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2071-05T52071-05T5

NEW CENTURY FINANCIAL SERVICES, INC.,

Plaintiff-Appellant,

v.

JACQUELINE C. ARELLANO, a/k/a

JACQUELINE C. BOBADILLA, a/k/a

JACQUELINE C. PATINO,

Defendant-Respondent.

____________________________________________________________

 

Submitted October 25, 2006 - Decided November 20, 2006

Before Judges Fuentes and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, DC-018771-03.

Pressler and Pressler, attorneys for appellant (Lawrence J. McDermott, Jr., on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff New Century Financial Services, Inc. appeals from an order entered by the Special Civil Part denying plaintiff judgment creditor the right to open the safe deposit box belonging to the defendant debtor. Plaintiff had obtained a default judgment against defendant in the amount of $1,164.19 on August 13, 2003, as a result of unpaid credit card debt. In an attempt to ascertain what assets defendant owned that would be available to satisfy the judgment, plaintiff served an information subpoena on the defendant, in accordance with Rule 6:7-2(b). Having received no response to the information subpoena, on November 12, 2003, plaintiff filed a motion to enforce litigant's rights, pursuant to Rule 6:7-2(e). When defendant failed to respond to that motion, the court granted it, issuing an arrest warrant for defendant's apprehension. The warrant was never executed.

On January 22, 2004, at plaintiff's request, a writ of execution was issued by the Essex County Superior Court, Special Civil Part, instructing a court officer to levy at any bank upon any and all accounts bearing defendant's social security number. On April 12, 2004, Essex County Court Officer Michael Lanzo executed the writ and levied upon a safety deposit box owned by the defendant at PNC Bank. Proper notice of such levy was sent to defendant, and was certified by Lanzo.

In an attempt to inventory items that could satisfy the judgment, plaintiff then filed a motion dated March 14, 2005, seeking leave to enter defendant's safe deposit box at PNC Bank. By order dated May 27, 2005, the court denied the motion noting only "no authority cited for requested relief."

Some three weeks after plaintiff had filed its notice of appeal, the motion judge issued an amended order, presumably pursuant to Rule 2:5-1(b), stating that "[p]laintiff has failed to provide authority for the relief requested. Plaintiff has failed to provide sufficient facts upon which said relief could be supported even if the relief could be authorized."

Plaintiff claims in the instant appeal that the levy was proper and that the court erred in not granting plaintiff's motion for leave to open the safe deposit box. We agree and reverse the order denying such requested relief.

We begin by noting that plaintiff has adhered to the requirements of each applicable court rule in seeking enforcement of its judgment. Plaintiff filed suit and received a default judgment when defendant failed to answer its complaint. Plaintiff properly served an information subpoena on defendant. Receiving no response from defendant, plaintiff made a motion to enforce its rights under the judgment. Subsequently, the court granted the motion and an arrest warrant for defendant was issued by the court. Plaintiff then filed a writ of execution with the court with instructions for the court officer to levy, among other things, safe deposit boxes in accordance with the judgment entered below.

The first issue, then, is whether safe deposit boxes are exempt from levy. N.J.S.A. 2A:17-19 specifies which property is exempt:

Goods and chattels, shares of stock or interests in any corporation and personal property of every kind, not exceeding in value, exclusive of wearing apparel, $1,000.00, and all wearing apparel, the property of a debtor shall be reserved, both before and after his death, for his use or that of his family or his estate, and shall not be liable to be seized or taken by virtue of any execution or civil process whatever, issued out of any court of this State.

[N.J.S.A. 2A:17-19.]

Other than N.J.S.A. 2A:17-19, there are no statutes or rules of court that exempt specific personal property. Nowhere in N.J.S.A. 2A:17-19 are safe deposit boxes or their contents made exempt.

Where the Legislature has specified certain items as exempt, but has failed to specify others, it can be assumed that had the Legislature intended to include the omitted items, it would have done so. GE v. Solid State v. Director, Division of Taxation, 132 N.J. 298, 308. Safe deposit boxes are not exempt under N.J.S.A. 2A:17-19; therefore, we hold that they are available for levy and inventory, subject to proper notice to the debtor.

Having decided that the levy on the safe deposit box was proper, we must decide whether forcibly opening the box to inventory its contents is permissible. Although, as plaintiff acknowledges, there is no New Jersey authority directly relating to the opening of safe deposit boxes, the use of force is permissible to gain entry to property for purposes of an inventory of its contents. Vitale v. Hotel California, Inc., 184 N.J. Super. 512, 522-524 (Law Div.) (sheriff liable to plaintiff judgment creditor for losses resulting from sheriff's failure to use force to enter debtor's property, a bar, to inventory contents), aff'd o.b., 187 N.J. Super. 464 (App. Div. 1982). In Vitale, we held that "an officer may force entry into any enclosure except the dwelling house of the judgment debtor in order to levy a [writ of execution] on the debtor's goods. . . ." Id. at 524. Such entry would be done for the purpose of an inventory of the goods inside.

Accordingly, the court below erred in denying plaintiff's motion to permit plaintiff, through the court officer or sheriff, to forcibly open the safe deposit box, and subsequently to inventory the items therein to determine what property was subject to levy.

Reversed and remanded for the entry of an order granting the requested relief.

 

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A-2071-05T5

November 20, 2006