GMAC, INC. v. CLYDE O. FRASER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-00

GMAC, INC., n/k/a ALLY

FINANCIAL, INC.,

Plaintiff-Respondent,

v.

CLYDE O. FRASER,

Defendant-Appellant.

________________________________

October 30, 2013

 

Submitted June 25, 2013 - Decided

 

Before Judges Sapp-Peterson and Sabatino.

 

On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket No.

L-2977-10.

 

Clyde O. Fraser, appellant pro se.

 

Psak & Associates, attorneys for respondent

(Andrew S. Turkish and Ellen Yang, on the brief).

 

PER CURIAM

Defendant appeals from the September 21, 2010 order to show cause (OTSC) directing him to show cause why an order should not be entered for: (1)"[i]mmediate disclosure of a 2007 Cadillac Escalade, VIN #1GYFK66827R223290"; (2)"[i]mmediate surrender of the vehicle"; (3) "[i]ssuance of a writ of replevin"; and (4) "[g]ranting such other relief as the court deems equitable and just." We affirm.

The September 21 OTSC arose out of plaintiff's efforts to repossess its vehicle leased to defendant, who defaulted on his obligations under the lease, namely, to return the vehicle at the expiration of the lease or exercise a purchase option. Defendant filed an answer to the OTSC. By order dated October 29, 2010, the trial court granted plaintiff's application for the immediate surrender and disclosure of the vehicle's location for issuance of the Writ of Replevin. Subsequently, the trial court entered the January 4, 2012 order granting to plaintiff a judgment by default against defendant in the amount of $51,411.09, inclusive of attorney's fees and costs.

On October 19, 2010, while the OTSC was pending, defendant filed a Notice of Appeal of the September 21 order. Although plaintiff received a Notice of Docketing from the Clerk, Appellate Division on January 24, 2011, it did not receive a copy of the Notice of Appeal and Civil Appeal Case Information Statement until February 16, 2011. By order of this court, dated November 30, 2012, rather than dismissing the appeal as interlocutory at the time it was filed, we limited the appeal to the trial court's September 21, 2010 interlocutory order.

The gist of defendant's argument on appeal is that the trial court erred in directing the disclosure of the whereabouts and surrender of the vehicle because the vehicle was an integral part of a then pending federal proceeding and that the trial court violated his Fifth Amendment rights by taking his property without a "full and fair hearing on the issues at the federal level." We disagree.

On January 2, 2007, defendant entered into a lease agreement with Royal Cadillac of Florham Park. Royal Cadillac subsequently assigned its rights under the lease to plaintiff. Under the terms of the lease agreement, defendant was required to surrender the vehicle at the expiration of the lease term, April 1, 2010 or exercise the purchase option provided in the lease. The April 1, 2010 surrender date was extended to June 1, 2010. At that time, defendant failed to surrender the vehicle and also failed to exercise the purchase option. As a result, plaintiff initiated the OTSC seeking a Writ of Replevin and other relief.

In opposing the OTSC, defendant did not dispute he entered into the lease agreement and was bound by its terms. Rather, defendant claimed that he and his spouse were the victims of fraud committed by GMAC in connection with an unrelated matter, the refinancing of their home, which funds from the anticipated refinancing they had hoped to use to purchase the leased vehicle. They commenced an action in federal court related to their mortgage refinancing fraud claims and believed their leased vehicle was an "integral part of the federal case." Because defendant does not dispute the terms of the lease, does not claim any fraud in connection with the lease agreement, and acknowledged that he did not have the funds, for whatever reason, to exercise the purchase option, his arguments on appeal are without sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).