SINGER ASSET FINANCE COMPANY L.L.C v. BRIAN S. PATTERSON, SR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3136-07T23136-07T2

SINGER ASSET FINANCE COMPANY,

L.L.C.,

Plaintiff-Respondent,

v.

BRIAN S. PATTERSON, SR.,

and TINA S. PATTERSON, a/k/a

TINA WALLER,

Defendants-Appellants,

and

TRANSAMERICA ANNUITY SERVICE

CORPORATION and TRANSAMERICA

OCCIDENTAL LIFE INSURANCE COMPANY,

Defendants.

_______________________________________

 

Argued January 20, 2009 - Decided

Before Judges Reisner, Sapp-Peterson and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-8834-04.

Brian S. Patterson, Sr., appellant, argued the cause pro se (Mr. Patterson and Tina Patterson, on the brief).

Adam Zoldessy, P.C., argued the cause for respondent.

PER CURIAM

Defendants Brian and Tina Patterson appeal from a January 14, 2008 order of the Law Division denying reconsideration of a November 30, 2007 order (amended on February 29, 2008 to correct a scrivener's error), granting summary judgment to plaintiff Singer Asset Finance Company (Singer or plaintiff). We affirm.

I

The Pattersons first became involved with Singer when they assigned to Singer some of the annuity payments to which they were entitled under a structured settlement. The Pattersons assigned these periodic payments in exchange for a lump sum payment from Singer. Between 1997 and 1998, defendants signed three more assignment agreements by which they obtained additional sums from Singer.

In February 2004, Singer stopped receiving periodic payments after the Pattersons, without notice to Singer, directed the annuity company, Transamerica, to send the payments to them instead of to plaintiff. As a result, in 2004, Singer sued the Pattersons for breach of contract. Following a series of dismissals and reinstatements, the matter was listed for trial on August 6, 2007, and the parties filed cross-motions for summary judgment. As discussed in greater detail in Section II below, these motions were initially rejected by the court for procedural defects, but were nonetheless heard prior to trial, resulting in summary judgment for Singer. The Pattersons' subsequent motion for reconsideration was denied.

II

In their brief-in-chief, the Pattersons raise the following issues:

POINT I: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT ENTERTAINED BARRED MOTIONS THAT WERE PREVIOUSLY RULED OUT OF TIME AND WITHDRAWN BY THE COURTS.

POINT II: PLAINTIFF'S LACK OF CANDOR TO THE TRIAL COURT PREJUDICED THE MANAGEMENT OF LITIGATION.

POINT III: PLAINTIFF'S LACK OF CANDOR TO DEFENDANTS' PREJUDICED THEIR ABILITY TO DEFEND THEIR CASE, WAS SERIOUSLY IMPAIRED.

POINT IV: THE COURT MUST REVERSE THE TRIAL COURT'S DECISION AND REMAND THE MATTER TO THE CHANCERY DIVISION FOR TRIAL.

In their reply brief, they address the same issues, but also improperly raise new issues for the first time. They present the following points:

POINT I: THE CHAPTER 13 BANKRUPTCY HAD AN EFFECT ON PLAINTIFF JUDGMENT, BECAUSE PLAINTIFF KNOWINGLY CONDUCTED DEPOSITION, AFTER HE LEARNED THAT DEFENDANTS WERE CURRENTLY UNDER BANKRUPTCY PROTECTION WHICH IS A CLEAR VIOLATION OF THE AUTOMATIC STAY.

POINT II: PLAINTIFF'S ATTORNEY IS TRYING TO CLOUD THE ISSUES ON APPEAL, PLAINTIFF HAS RAISED ISSUES THAT IS NOT GERMANE TO THE ISSUES ON APPEAL.

POINT III: PLAINTIFF ATTORNEY THROUGH HIS LACK OF CANDOR INTERFERED IN THE PROCESS OF LITIGATION, AND DENIED DEFENDANTS THEIR RIGHT, AND A FAIR OPPORTUNITY TO BE HEARD.

POINT IV: THE PURCHASE AGREEMENTS IN THIS CASE STATES IN PLAIN LANGUAGE THAT FOR ANY REASON THE CONDITIONS PRECEDENT ARE NOT SATISFIED, THE DEFENDANTS MAY AT ANYTIME DEEM THE CONTRACTS UNPERFORMABLE.

POINT V: THE PURCHASE AGREEMENTS TOGETHER WITH THE RELATED DOCUMENTS ARE GROSSLY MISREPRESENTED, MISLEADING AND THE INFORMATION CONTAIN WITHIN IS DESIGNED TO MISLEAD THE AVERAGE CONSUMER.

Having reviewed the record, we conclude that all of the Pattersons' contentions are without merit and, except to the extent addressed below, they do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

On this appeal, the Pattersons do not address the merits of the summary judgment motions in any detail. Nor do they specify what, if any, material facts were in dispute making summary judgment inappropriate. Rather, they focus on procedural issues surrounding the hearing of the motions.

Because the case was old, having been filed in 2004, the presiding civil judge issued an order on May 21, 2007, setting a peremptory trial date of August 6, 2007, and a deadline for the filing of summary judgment motions. Defendants filed a timely motion, but it was rejected for procedural deficiencies. Plaintiff, not realizing that defendants' motion had been rejected, filed opposition and a cross-motion for summary judgment. The matter did not go to trial on August 6, and when the parties appeared before the presiding judge on August 10, 2007, he informed them that defendants' motion would not be heard because it was deficient, and plaintiff's cross-motion would not be heard because it was not timely filed. He directed that the matter be immediately sent to a judge for trial. However, he indicated that the assigned trial judge might consider the motions "in limine."

On the afternoon of August 10, 2007, the parties appeared before Judge Paley, the assigned trial judge. After conferring with the parties concerning their schedules and his own trial schedule, the judge determined, with the agreement of all parties, that the trial would be adjourned to September 18, 2007. At the end of the August 10 proceedings on the record, plaintiff's counsel mentioned the possibility of the judge hearing the parties' motions as in limine motions. The judge responded that counsel should address that issue in a letter to the court.

Accordingly, on August 13, 2007, plaintiff's counsel sent the judge a letter, with a copy to defendants, confirming that the trial was scheduled for September 18, 2007, asking the judge to decide the parties' summary judgment motions, and offering to send the court copies of the motions. Defendants did not object to this letter. Subsequently, on August 22, 2007, plaintiff's counsel sent the judge another letter, again with a "cc" to defendants, enclosing copies of the summary judgment motions:

Per direction of Chambers, and prior requests made at the last conference in this matter, please find enclosed Cross-Motions for Summary Judgment previously filed by Singer and Brian and Tina Patterson. We respectfully request, as all parties did at the last conference, that these Motions be heard prior to trial.

Defendants did not object to the contents of this letter or contend that they wanted to file any additional motion papers.

On September 14, 2007, Judge Paley heard oral argument on the summary judgment motions. Defendants did not object to the hearing. They did not claim that they were unaware of the scheduled hearing and did not contend that they wanted to file any additional papers. Defendants claimed that they received "unfair consideration" for the assignment of their right to the annuity payments, and that plaintiff took advantage of them when they were grieving their son's death. Defendants also contended that plaintiff did not get paid because plaintiff did not send a proper "notice of directional payment" to the annuity company, Transamerica. They further contended that they had gone through bankruptcy and plaintiff was not a secured creditor.

Plaintiff argued that there was no proof of unconscionability, that defendants entered into four separate assignment transactions over period of a year, and that defendants acted voluntarily and for business reasons. Plaintiff also asserted that there was no defect in the notice; Transamerica had been sending payments to plaintiff for six years, until defendants sent Transamerica a request to start sending them the money and to stop sending the payments to plaintiff.

In deciding the motions, the judge declined to consider the amount of consideration plaintiff paid defendants for the assignment:

The Patterson's made a deal. They are required to live up to their obligations under the deal. . . . If they think that the underlying transaction was unfair, and they may do it in retrospect, they are no different in my judgment from anybody who makes a bad deal about selling a car . . . or buying a house.

He also concluded that the proofs could not support a finding that the Pattersons lacked capacity when they entered into the agreements, because the transactions at issue did not take place near the time of the son's death in March 31, 1997: "[I]n this particular case, the transactions that are remaining open were done over a ten month period, from December 16th, 1997 to October 9th, 1998 . . . . So, I don't see how the Pattersons can really argue a lack of capacity . . . that they were so overcome by grief that they would have signed anything." They presented no other proof of lack of capacity.

The Pattersons filed a motion for reconsideration, contending that the summary judgment motions should not have been heard, because the presiding judge had previously ruled that they were procedurally barred. They also contended that plaintiff's counsel did not advise them that the court would hear oral argument of the motions on September 14, 2007, and they were not prepared to argue the motions when they appeared before the court on that day. They did not deny receiving the letters from plaintiff's counsel transmitting the motion papers to the court and asking the court to hear the motions. The trial judge denied the reconsideration motion, concluding that the Pattersons had not demonstrated any viable defense to Singer's claim.

We find no abuse of discretion in the trial judge's decision to hear the summary judgment motion and cross-motion, or in his decisions to grant summary judgment and deny reconsideration. Rule 4:46-1, setting deadlines for the filing of summary judgment motions, was intended to prevent the filing of such motions on the eve of trial. Here, however, Judge Paley adjourned the trial for more than thirty days, and defendants had ample notice of plaintiff's request that the motions be heard. They did not object to that request. Nor did they provide legally competent evidence to support their contention that they did not receive notice of the oral argument.

Considering the entire record de novo, as we are required to do, we also agree with Judge Paley that there were no material facts in dispute and that plaintiff was entitled to summary judgment. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Plaintiff presented legally competent evidence of the defendants' assignment and the amount of the debt owed to plaintiff. Defendants did not present any evidence of the net present value of the annuity payments they assigned to plaintiff, as compared to the funds they received. Nor did they present any other legally competent evidence to support their defenses, including their claims of unconscionability or lack of capacity.

Affirmed.

 

Tina Patterson is sometimes referred to as Tina Waller.

The settlement, which was executed in 1996, was based on medical injury to defendants' son Brian Patterson, Jr. Defendants began assigning their rights to the settlement payments after their son died in 1997.

After the lawsuit was filed, Transamerica ceased making payments to either party, and eventually filed an interpleader motion and paid the remaining disputed funds into court.

In deciding the motions, the judge did not rely on defendants' depositions, which defendants claimed were taken in violation of an automatic stay resulting from their bankruptcy filing. Shortly after taking the depositions, plaintiff obtained an order lifting the stay, and the bankruptcy petition was later dismissed by the Bankruptcy Court.

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A-3136-07T2

February 9, 2009