Banc of Am. Leasing & Capital, LLC v. Fletcher-Thompson Inc.
179 A.3d 1058
N.J. Super. Ct. App. Div.2018Background
- BOA obtained a Michigan default judgment against Fletcher-Thompson, Kurt Baur, and Michael Marcineck, then domesticated it in New Jersey.
- A writ of execution led to a PNC Bank levy freezing $20,523.83 in a joint Kurt–Kristi Baur account.
- Kristi (not a judgment debtor) certified the levied funds came from her pension, wages, and reimbursements and claimed statutory exemption.
- BOA and the Baurs entered a consent order providing for replacement funds and payment obligations; defendants defaulted on that agreement.
- The motion court denied the Baurs’ motion to vacate the levy and granted BOA’s turnover motion without determining whether the funds belonged to Kurt or were exempt.
- The Appellate Division reversed, holding BOA bore the burden to prove the levied funds were Kurt’s individual property before turnover.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may order turnover of funds from a joint account without proof funds belong to judgment debtor | Consent order/default justified enforcement and turnover | Funds are Kristi’s sole property and exempt; Kristi did not consent or sign the consent order | Reversed: BOA must show the funds are Kurt’s property before turnover |
| Whether Kristi (non‑party) waived rights by consent order signed by defense counsel | BOA: consent order resolved avoidance of turnover; enforcement appropriate after breach | Kristi not a party/signatory and did not waive rights to claim ownership/exemption | Kristi did not forfeit right to assert ownership/exemption; waiver not established |
| Whether pension funds in joint account are subject to levy | BOA: levy valid once consent order breached | Kristi: pension and certain payments are statutorily exempt from seizure | Court required BOA to prove funds were not exempt before turnover |
| Adequacy of motion court’s reasoning (procedural) | BOA: breach of settlement alone permits turnover | Defendants: court failed to adjudicate ownership/exemption and denied oral argument | Court's orders reversed and remanded for findings on ownership/exemption |
Key Cases Cited
- Esposito v. Palovick, 29 N.J. Super. 3, 101 A.2d 568 (App. Div.) (joint-account levy requires creditor to prove funds are debtor's individual property)
- Winchell v. Clayton, 133 N.J.L. 168, 43 A.2d 267 (Sup. Ct.) (same principle regarding presumption against creation of joint tenancy by mere deposit)
- C.P. by J.P. v. Twp. of Piscataway Bd. of Educ., 293 N.J. Super. 421, 681 A.2d 105 (App. Div.) (recognition that certain pension payments may be exempt from levy)