MARINA DISTRICT DEVELOPMENT CO. LLC v. RONALD LENOWITZ

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1116-19

MARINA DISTRICT
DEVELOPMENT CO. LLC
T/A BORGATA

          Plaintiff-Respondent,

v.

RONALD LENOWITZ,

          Defendant-Appellant,

and

JPMORGAN CHASE BANK, N.A.1,

     Respondent.
______________________________

                   Submitted February 3, 2021 – Decided March 2, 2021

                   Before Judges Geiger and Mitterhoff.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Atlantic County, Docket No. L-0133-
                   19.


1
    Improperly pled as JP Morgan Chase Bank, N.A.
           Ronald Lenowitz, appellant pro se.

           Josiah Knapp, attorney for respondent Marina District
           Development Co. LLC.

           Stagg Wabnik Law Group LLP, attorneys for
           respondent JPMorgan Chase Bank (Michelle E.
           Tarson on the brief).

PER CURIAM

     Defendant Ronald Lenowitz appeals an October 11, 2019 order requiring

JPMorgan Chase Bank, N.A. (Chase), to turnover monies in defendant's bank

account that were levied upon by plaintiff Marina District Development Co.,

LLC, trading as the Borgata. We vacate the order and remand for further

proceedings.

     We discern the following facts from the record. In 2018, defendant

issued checks to plaintiff, drawn on defendant's checking account, that were

dishonored by the bank upon which they were drawn. On January 21, 2019,

plaintiff filed a Law Division collection action against defendant. Defendant

was served with process on April 5, 2019. Defendant did not file a responsive

pleading. On June 13, 2019, a default judgment was entered against defendant

in the amount of $18,410.41 plus costs of $290. Post-judgment interest in the

amount of $159.59 accrued through September 10, 2019.



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        A writ of execution issued by the court was served on Chase by the

Mercer County Sheriff on July 23, 2019. Although more than $6000 was on

deposit in defendant's bank account, Chase only put a levy hold on $2101.19.

        The Sheriff sent a levy notice to plaintiff and defendant on September 4,

2019. One week later, plaintiff filed a motion to turnover funds, returnable on

October 11, 2019. Defendant filed and served opposing papers on October 9,

2019.    The judge did not see the opposing papers by the return date and

considered the motion unopposed.

        In his pro se opposing papers, defendant claimed that the court did not

have personal jurisdiction over him due to defective service of process.

However, defendant did not appeal the judgment or file a motion to vacate it

under Rule 4:50-1. He also argued that the funds on deposit in the account

were exempt from levy or execution because they consisted of Social Security

benefits and proceeds from a Citibank, N.A., retirement account that were

directly deposited into his Chase account. Defendant relied on 26 U.S.C. §

6334(d) as to the Social Security benefits and New York Civil Practice Law

and Rules (CPLR) § 5205(d)(1)(C) as to the retirement account funds. Other

than his own self-serving affidavit, defendant did not provide verification that the funds




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on deposit fell within any of these specific exemptions in his opposing papers or to this

court; his assertions were unsupported.

      On October 11, 2019, the Law Division judge granted plaintiff's turnover

motion. This appeal followed.

      Defendant raises the following points for our consideration:

             I. THE TRIAL COURT ERRED IN GRANTING
             PLAINTIFF’S MOTION FOR TURNOVER ORDER
             OF    BANK   ACCOUNT    WITHOUT   ANY
             CONSIDERATION       OF     DEFENDANT’S
             OPPOSITION PAPERS.

             II. THE TRIAL COURT ERRED IN GRANTING
             PLAINTIFF’S MOTION FOR TURN-OVER ORDER
             OF BANK ACCOUNT IN VIOLATION OF
             INTERNAL REVENUE CODE [26 U.S.C. § 6334(d)]
             WITH    RESPECT  TO   EXEMP[T]     SOCIAL
             SECURITY FUNDS.

             III. THE TRIAL COURT ERRED IN GRANTING
             PLAINTIFF’S MOTION FOR TURN-OVER ORDER
             OF BANK ACCOUNT IN VIOLATION OF
             SECTION 20 C.F.R. § 404. 970 SSR 79-4 AND THE
             SOCIAL SECURITY ACT SECTION 207.

             IV. THE TRIAL COURT ERRED IN GRANTING
             PLAINTIFF’S MOTION FOR TURN OVER ORDER
             IN VIOLATION OF NEW YORK CIVIL PRACTICE
             LAW AND RULES SECTION(S) 5202 and
             5205(d)(1)(C). ("NEW YORK EXEMPT INCOME
             PROTECTION ACT").




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      A judgment creditor may obtain a writ of execution and levy on a defendant's

bank account. Morristown Mem. Hosp. v. Caldwell,  340 N.J. Super. 562, 566 (App.

Div. 2001) (citing R. 4:59-1(a); R. 6:7-1(a)). The judgment creditor may then move for

a turnover order of the funds levied upon. See id. at 565, 567;  N.J.S.A. 2A:17-63. The

defendant may oppose turnover on a claim that the funds on account are exempt from

levy. See R. 4:59-1(h). The court must then determine whether the funds are exempt

from levy. Ibid.

      The exemptions available to a judgment debtor in New Jersey include: (a)

$1000 in personal property of any kind,  N.J.S.A. 2A:17-19; (b) Social Security benefits,

42 U.S.C. § 407; (c) pension benefits, 29 U.S.C. § 1056(d)(1),  N.J.S.A. 25:2-1 and

 N.J.S.A. 43:15A-53; and (d) annuity contracts up to $500 per month,  N.J.S.A. 17B:24-

7. In addition, Rule 4:59-1(b)(1) excludes "electronic deposits, made on a recurring

basis," from levy if "deposit[ed] into the account during the [ninety] days immediately

prior to service of the writ." Defendant argues that New York has more expansive

exemptions for retirement benefits under qualified retirement plans. He claims the

electronically deposited funds in the Chase account were exempt from levy under

Federal, New Jersey, and New York law.

      Plaintiff contends the funds levied upon were not Social Security benefits or

funds from a qualifying trust. Based on bank account records, it claims the account did


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not contain any Social Security benefits that were deposited within sixty days prior to

the levy. Rather, the funds on deposit were derived from defendant's professional work.

It further claims that defendant deposited over $78,000 into the Chase account in the

ninety days preceding the levy.

       Plaintiff also argues that the levy and turnover are subject to New Jersey law

because the underlying transaction took place here, the judgment was entered in New

Jersey, the bank account was in New Jersey, and the levy was made in New Jersey. In

addition, the credit application for the transaction leading to the debt contained a forum

selection clause that provided the contract would be governed by New Jersey law.

Plaintiff also argues that defendant waived any challenge to personal jurisdiction by not

contesting the action before the trial court.

       The record on appeal consists of the papers on file in the court below. R. 2:5-

4(a). The documents supporting defendant's contention that the funds on deposit were

not exempt were not part of the record before the trial court. Defendant did not move to

supplement the record. Therefore, we do not consider them. See Pressler & Verniero,

Current N.J. Court Rules, cmt 1 on R. 2:5-5(a) (2021) ("if no supplementation motion is

made, the court will not ordinarily consider materials outside the record").

       We do not reach the merits of the exemptions claimed by defendant. Our rules

provide a mandatory procedure to be followed when a judgment debtor claims that


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funds are exempt from levy: "If the clerk or the court receives a claim of exemption,

whether formal or informal, it shall hold a hearing thereon within [seven] days after the

claim is made." R. 4:59-1(h).

       Here, defendant submitted an exemption claim on October 9, 2019, two days

before the return date of the turnover motion. A hearing should have been held within

seven days. It was not. Instead, the court granted the motion as unopposed without

considering the merits of the exemption claim. We are thus constrained to vacate the

turnover order and remand to the trial court for a hearing on the exemption objection

raised by defendant.2 In so ruling, we express no opinion on the merit of defendant's

exemption arguments.

       Vacated and remanded for further proceedings consistent with this opinion. We

do not retain jurisdiction.




2
  We do not fault the judge since he was unaware of defendant's exemption claim
when he granted the turnover motion as unopposed.
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