DAIMLER CHRYSLER FINANCIAL SERVICES AMERICAS, LLC v. CLIFTON BEALE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1699-06T21699-06T2

DAIMLER CHRYSLER FINANCIAL

SERVICES AMERICAS, LLC,

Plaintiff-Respondent,

v.

BRIAN T. BEALE,

Defendant,

and

CLIFTON BEALE,

Defendant-Appellant.

______________________________________________________________

 

Submitted June 6, 2007 - Decided July 5, 2007

Before Judges Yannotti and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-11275-06.

Clifton Beale, appellant pro se.

Rubin & Rothman, attorneys for respondent (Diana K. Zollner, of counsel and on the brief).

PER CURIAM

Defendant Clifton Beale appeals from two orders entered on November 1, 2006 -- the first granting summary judgment to plaintiff, Daimler Chrysler Financial Services Americas, LLC, in the amount of $6604.89 and dismissing defendant's counterclaim; the second denying defendant's motion seeking dismissal of plaintiff's complaint and summary judgment in his favor.

Plaintiff filed its complaint in the Special Civil Part against defendant and his son, Brian T. Beale, alleging that both defendants had defaulted on a retail installment contract for a motor vehicle. In his answer, defendant admitted that he "co-signed [the] agreement," that plaintiff "had made repeated calls . . . for late payments," and that plaintiff had repossessed the vehicle, a 1986 Ford Expedition as a result. Defendant, however, disputed the amount of the debt and in his counterclaim asserted various causes of action under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. 1692. Defendant then moved for summary judgment and plaintiff cross-moved for summary judgment. After argument, the motion judge rendered an oral decision in which he concluded that defendant "[did not] even dispute" that after the vehicle was sold at auction, defendant owed plaintiff the amount of the deficiency pursuant to the contract. The judge further noted defendant's claims under the FDCPA were directed at plaintiff's counsel, not at plaintiff, and since the law firm was not a party to the suit, the claim had to be dismissed.

On appeal, defendant essentially presses the same issues raised in his motions. He contends that plaintiff's proofs were inadequate, plaintiff failed to adequately respond to his demands for documents, plaintiff violated provisions of the Internal Revenue Code, and plaintiff's counsel failed to comply with the FDCPA. We have carefully considered these contentions in light of the record and applicable legal standards and we affirm substantially for the reasons set forth by the motion judge. R. 2:11-3(e)(1)(A). We add only these comments.

In reviewing a grant of summary judgment, we use the same standard employed by the trial court. Atlantic Mutual Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230 (App. Div. 2006). We decide first whether there was a genuine issue of material fact; if not, we then decide whether the motion judge's application of the law was correct. Id. at 230-31.

Here, the judge appropriately found that defendant "admitted entering into the contract" with plaintiff, "admit[ted] the breach of the contract," "admit[ted] the property was repossessed," and admitted the debt. All of these findings were amply supported by the record. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). There was no material factual dispute and plaintiff was entitled to judgment as a matter of law.

In addition, defendant's counterclaim was appropriately dismissed because plaintiff is a "creditor" as that term is defined in 15 U.S.C.A. 1692a(4). Pursuant to 15 U.S.C.A. 1692a(6)(A), officers and employees of the creditor are not "debt collectors" under the FDCPA and therefore do not fall within the statute's purview.

Plaintiff acknowledges that attorneys can be "debt collectors" under the terms of the FDCPA. See Hodges v. Sasil Corp., 189 N.J. 210, 225 (2007) (holding attorneys who regularly attempt to collect debts are subject to the FDCPA). However, we agree with the motion judge and plaintiff that defendant's allegations regarding violations of the FDCPA were claims made against plaintiff's attorneys who were never named as parties in the suit.

The other arguments raised by defendant do not merit discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

 

Brian T. Beale defaulted and did not participate in the proceedings.

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A-1699-06T2

July 5, 2007