NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DIANA KIEFFER & ROBERT KIEFFER,

Plaintiffs, 

v.

NEW CENTURY FINANCIAL SERVICES,

INC. and PRESSLER & PRESSLER, LLP,

Defendants.

:

:

:

:

:

:

:

:

:

:

:

Civil Action No. 10-3938 (SRC)

OPINION

CHESLER, District Judge

This matter comes before the Court on the parties’ cross-motions for summary judgment

[docket entries 53 & 54]. The motions have been fully briefed, and the Court proceeds to rule

on the motions without oral argument, pursuant to Federal Rule of Civil Procedure 78. It has

considered the papers filed by the parties, and for the reasons discussed below, will grant

Defendant’s summary judgment motion in part and accordingly deny Plaintiffs’ motion for

summary judgment in part.

I. BACKGROUND

This putative class action, which arises under the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692, et seq., challenges the practice of levying upon a bank account to

collect a debt where the account is held jointly by the subject debtor and at least one non-debtor. 

The Court recites the basic facts relating to this action.

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 1 of 20 PageID: 698
Plaintiffs Diana Kieffer and Robert Kieffer are married. At all relevant times, they jointly

maintained two accounts at the Ocean First Bank in Ocean County, New Jersey. On May 9,

2007, a default judgment in the amount of $6,051.12, plus post-judgment interest, had been

entered in the Superior Court of New Jersey against Diana Kieffer (hereinafter, “Mrs. Kieffer” or

the “Plaintiff-Debtor”) in a debt collection action filed by New Century Financial Services, Inc.

(“New Century”). The Court will refer to that action, captioned New Century Financial Services,

Inc. v. Diana L. Verderame a/k/a Diana Potenzone, simply as the “debt collection action.” In the 1

debt collection action, New Century sought to recover Mrs. Kieffer’s delinquent credit card debt,

which New Century had acquired from the original creditor, Providian Bank. Shortly after

obtaining the judgment, New Century, through its counsel, Pressler & Pressler (“Pressler”), filed

a writ of execution but was unsuccessful in attempts to levy upon Plaintiff-Debtor’s real and

personal property. Pressler served Mrs. Kieffer with an information subpoena, which, among

other things, requested disclosure of all bank accounts on which Plaintiff-Debtor’s name appears. 

Mrs. Kieffer’s response to that request was “N/A” and “NONE.” On July 22, 2009, a second

writ of execution (the “Second Writ”) was filed.

The Second Writ was sent to the Ocean County Sheriff’s Office (“OCSO”) for service. 

Pressler instructed the OCSO to levy upon any and all of Plaintiff-Debtor’s accounts at Ocean

First Bank. Although Plaintiff-Debtor had not disclosed any such accounts in her responses to

post-judgment discovery, Pressler had learned of one account through payments Mrs. Kieffer

made on other collection matters handled by the Pressler office. On August 17, 2009, the Second

 It is not disputed that the defendant named in the debt collection action is Diana Kieffer. 1

The other surnames used to identify her reflect her name before her marriage to Robert Kieffer.

2

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 2 of 20 PageID: 699
Writ was served on the Ocean First Bank and a levy was placed on accounts bearing PlaintiffDebtor’s name. The bank froze $2,359.23 in an account Plaintiff-Debtor held jointly with her

husband, Robert Kieffer (“Mr. Kieffer” or “Plaintiff-Husband”). On that same day, the OCSO

mailed Plaintiff-Debtor a notice, as required by New Jersey Court Rules, notifying her that a

specific account, identified by number “&/OR ANY & ALL OTHER in an amount not to exceed

$6,848.69 at the OCEAN FIRST (TOMS RIVER - RT 70) has been levied upon” to satisfy the

judgment in the debt collection action. (Williamson Cert., Ex. I.) Two days later, on August 19,

2009, Ocean First identified a second account bearing Plaintiff-Debtor’s name and froze

$4,490.46 in this second bank account pursuant to the Writ of Execution which had been served

on August 17, 2009. This account was also held jointly by Diana and Robert Kieffer. By letter

dated August 19, 2009, Ocean First Bank notified Plaintiff-Debtor that two accounts, identified

by number in the letter, had been levied upon, in the amount of $6,848.69, plus a bank levy fee. 

2

Mrs. Kieffer called Pressler at 11:51 a.m. on August 19, 2009 to discuss her other two

active collection matters. During that call, she broached the subject of the collection matter

related to the debt collection action. She agreed to make voluntary payments towards the debt

collection action account, and Pressler accordingly prepared a letter addressed to the OCSO

asking that all future executions be held in abeyance. Plaintiff-Debtor placed a second call to

Pressler minutes later, at approximately 12:24 p.m, in which she advised that the Sheriff had just

visited her house and informed her that a bank levy in the amount of $2,368.23 was placed on her

account. The Court notes that Plaintiff-Debtor does not maintain that, during this visit, the

 The Court notes a discrepancy of one dollar in the letter’s statement regarding the total 2

amount of funds frozen and various other documentation in the record. The other documents

indicate a total levied amount of $6,849.69.

3

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 3 of 20 PageID: 700
Sheriff served her with any documentation giving written notice of the levy, and the OCSO

records show that notice to Plaintiff-Debtor of the levy was served by mail. The Court further

notes that this version of how and when Plaintiff-Debtor learned of the levy conflicts with her

deposition testimony, in which Plaintiff-Debtor stated under oath that she had been informed of

the levy by the Ocean First bank manager on August 18, 2009, when she went to the bank in

person. During the 12:24 phone call to Pressler, Plaintiff-Debtor asked that the bank levy be

released because she needed the money to pay her mortgage. She was advised that the levy

would be released to the extent a payment was made toward the debt collection action judgment. 

At approximately 12:37 p.m., Mrs. Kieffer placed a third phone call to Pressler, now stating that

the amount levied was actually $6,848.69. She asserts that she asked the levy to be lifted because

she and Pressler had made payment arrangements but that Pressler refused. Finally, in a fourth

telephone call initiated by Plaintiff, Plaintiff-Debtor requested copies of the letters Pressler had

sent to the OCSO.

Following these various telephone conversations occurring over the course of roughly an

hour and a half on August 19, 2009, Pressler sent a letter to Plaintiff-Debtor memorializing their

payment plan agreement. The August 19, 2009 letter states: 

Confirming telephone conversation of 08/19/09, this office will expect

$30.00 by 09/15/09 and $30.00 on the 15 of every month thereafter. The th

above [default judgment] balance will be reduced by the amount of the

bank levy once the funds have been turned over to the Plaintiff’s attorney.

(Williamson Cert. at Ex. O; D. Kieffer Cert. at Ex. 6.) The next day, on August 20, 2009,

Pressler was advised by the OCSO that Ocean First Bank had frozen a second bank account

bearing Plaintiff-Debtor’s name as account holder, as set forth above. It was also on August 20,

4

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 4 of 20 PageID: 701
2009 that Mr. Kieffer advised Pressler that it was his view that the levied funds belonged to him,

not to Plaintiff-Debtor, and that they needed to be released so he could make his mortgage

payments. 

Thereafter, Plaintiffs and Pressler engaged in various communications in an attempt to

reach an agreement as to the release and turnover of the funds. According to Pressler, Pressler

and Mr. Kieffer orally agreed during a September 16, 2009 phone call that $1,000 of the levied

funds would be released, pursuant to the applicable statutory exemption from levy, and the

balance would be turned over to Pressler by consent. Plaintiffs did not, however, sign the

proposed consent order sent by Pressler. Instead, on September 18, 2009, Plaintiff-Debtor, acting

pro se, submitted a motion in the New Jersey Superior Court, Special Civil Part of Mercer

County, which was filed by the clerk as a motion to vacate the default judgment but appears

actually to have been an attempt by Plaintiffs to object to the levy. A few weeks later, after

Plaintiffs had secured counsel, they filed a motion to release the levy, supported by

documentation regarding the source and ownership of the funds in the frozen bank accounts. On

October 23, 2009 the Superior Court directed that the levied funds be released in their entirety, as

exempt and as belonging solely to Mr. Kieffer.

Plaintiffs thereafter filed this action in federal court on August 3, 2010. In addition to

the cause of action under the FDCPA, 15 U.S.C. § 1692, the First Amended Complaint

(“Complaint”) also asserted common law claims for conversion, intentional infliction of emotion

distress and negligent infliction of emotional distress. Upon Defendants’ Rule 12(b)(6) motion,

the Court dismissed Plaintiffs’ intentional infliction of emotional distress claim. Plaintiffs have

expressed their desire not to pursue their claim for negligent infliction of emotional distress.

5

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 5 of 20 PageID: 702
II. DISCUSSION

A. Legal Standard

The standard upon which a court must evaluate a summary judgment motion is wellestablished. Federal Rule of Civil Procedure 56(a) provides that summary judgment should be

granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202,

204 (3d Cir. 2000). In deciding a motion for summary judgment, a court must construe all facts

and inferences in the light most favorable to the nonmoving party. See Boyle v. County of

Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The moving party bears the burden

of establishing that no genuine issue of material fact remains. See Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986). 

In this case, both Plaintiffs and Defendants have moved for summary judgment. The

showing required of Plaintiffs and Defendants to establish that there is no genuine issue of

material fact differs based on which party bears the burden of proof at trial. Plaintiffs bear that

burden on the claims which remain active in this case. Thus, for Plaintiffs to obtain summary

judgment on their claims, they must show that, on all the essential elements of the case on which

they bear the burden of proof at trial, no reasonable jury could find for Defendants. In re

Bressman, 327 F.3d 229, 238 (3d Cir. 2003). In contrast, to prevail on their motion for summary

judgment, Defendants must point out to the district court “that there is an absence of evidence to

support the nonmoving party’s case.” Celotex, 477 U.S. at 325. 

6

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 6 of 20 PageID: 703
Once the moving party has properly supported that there is no triable issue of fact, the

nonmoving party “must do more than simply show that there is some metaphysical doubt as to

material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986). The party opposing the motion for summary judgment cannot rest on mere allegations

and instead must present actual evidence that creates a genuine issue as to a material fact for trial. 

Anderson, 477 U.S. at 248; see also Fed.R.Civ.P. 56(c) (setting forth types of evidence on which

nonmoving party must rely to support its assertion that genuine issues of material fact exist). 

“[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment.” 

Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). “A nonmoving party has

created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to

find in its favor at trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001). If

the nonmoving party has failed “to make a showing sufficient to establish the existence of an

element essential to that party’s case, and on which that party will bear the burden of proof at

trial, . . . there can be ‘no genuine issue of material fact,’ since a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,

477 U.S. at 322-23).

B. FDCPA Claim

Plaintiffs do not dispute the validity of the debt upon which the debt collection activity of

Defendant Pressler, on behalf of its client, Defendant New Century, is based. They concede that

Mrs. Kieffer is a judgment debtor by virtue of the default judgment entered against her in the

debt collection action and that New Century is the judgment creditor. Plaintiffs further clarify

7

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 7 of 20 PageID: 704
that this lawsuit does not challenge the general legality of levying against bank accounts held

jointly by a debtor and a non-debtor.3

The gravamen of the Complaint is that Pressler violated the FDCPA by causing a levy to

be placed upon the Ocean First Bank accounts jointly held by Diana and Robert Kieffer, the

debtor and non-debtor, respectively, without regard to whether the funds contained therein in fact

belonged to the debtor. Underlying this theory of wrongdoing is the manner in which ownership

of joint accounts is determined under New Jersey law. The New Jersey Multiple Party Deposit

Account Act (“NJMPDAA”), N.J.S.A. § 17:16I-1, et seq., which governs “multiple party deposit

accounts” (“MPDAs”), including joint bank accounts, provides in relevant part:

Unless a contrary intent is manifested by the terms of the contract, or the

deposit agreement, or there is other clear and convincing evidence of a

different intent at the time the account is created:

a. A joint account belongs, during the lifetime of all parties, to the parties

in proportion to the net contributions by each to the sums on deposit. In

the absence of proof of net contributions, the account belongs in equal

shares to all parties having present right of withdrawal. 

N.J.S.A. § 17:16I-4a. In other words, by statute, Plaintiff-Debtor owned only the share of each

joint account as determined by her net contributions proportionate to the amount on deposit in

the account. The statute further provides that there is a rebuttable presumption that each account

 The Court notes that a reasonable reading of the Complaint may lead to the 3

understanding that the Complaint does, in fact, allege that levying against joint accounts should

be prohibited under the FDCPA. Plaintiffs allege that the levy on the joint accounts was wrong

because the law did not prevent “Defendants from instructing the Sheriff to only levy bank

accounts solely held by Mrs. Kieffer.” (Compl., ¶ 49.) They also allege as follows: “Nothing in

New Jersey’s statutes or court rules prevents Defendants from instructing levying authorities to

only levy bank accounts solely held by the debtor or to refrain from levying jointly held bank

accounts.” (Id., ¶ 15.) Nevertheless, Plaintiffs’ briefing on these cross-motions makes it clear

that their FDCPA claim is not based on the theory that levying joint bank accounts is wrong in

and of itself. 

8

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 8 of 20 PageID: 705
holder owns an equal share of the funds, which in Plaintiff-Debtor’s case would be 50% of each

joint account she held at Ocean First Bank with Mr. Kieffer.

The Complaint alleges that rather than “deposing Mrs. Kieffer to ascertain whether and to

what extent money in Mrs. Kieffer’s joint bank accounts was actually Mrs. Kieffer’s money,”

Defendants instructed the Sheriff to levy all of Mrs. Kieffer’s accounts. (Compl., ¶ 50.) As a

result, Plaintiffs maintain, Defendants caused a levy to be imposed on two bank accounts “that

contained entirely or mostly money earned by, deposited by, and belonging to Robert Kieffer.” 

(Id., ¶ 51.) Alternatively, Plaintiffs argue, if Defendants lacked information about Mrs. Kieffer’s

actual ownership interest in the Ocean First Bank accounts, they could have instructed the Sheriff

to limit the levy upon any joint bank account to Mrs. Kieffer’s presumptive equal share of the

funds in the accounts. Plaintiffs additionally take issue with Defendants’ refusal to release the

funds even after they were advised by Robert Kieffer that the funds belonged to him. The

Complaint alleges that by causing Mr. Kieffer’s funds in the joint accounts to be levied,

Defendants engaged in abusive and unfair tactics intended to put pressure on Plaintiffs with

regard to satisfaction of the judgment against Diana Kieffer. 

Congress enacted the FDCPA “to eliminate abusive debt collection practices.” 15 U.S.C.

§ 1692(e). Persons aggrieved by a debt collector’s violation of any one or more of the statutory

requirements may seek legal redress pursuant to the private cause of action created by the statute. 

15 U.S.C. § 1692k. The Complaint pleads that the attachment of funds belonging to non-debtors

in a joint bank account runs afoul of the statute’s prohibition of “any conduct the natural

consequence of which is to harass, oppress, or abuse any person in connection with the collection

of a debt.” 15 U.S.C. § 1692d. It also claims that Defendants made misrepresentations in

9

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 9 of 20 PageID: 706
connection with the collection of the debt owed by Mrs. Kieffer, in violation of 15 U.S.C. §

1692e. Finally, Plaintiffs invoke the FDCPA’s catch-all provision barring any “unfair or

unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f.

To the extent that Plaintiffs’ FDCPA claim is based on the failure to ascertain the

Plaintiff-Debtor’s actual ownership interest in the joint bank accounts and limit the levy

accordingly, their claim cannot prevail as a matter of law. Plaintiffs do not protest that the levy

was accomplished in derogation of the procedures established by the New Jersey Court Rules for

execution of the default judgment New Century obtained against Diana Kieffer. See, generally,

4

N.J. Ct. R. 4:59 (setting forth process to enforce judgments). Instead, they take the position that

insufficient pre-levy discovery was taken by Defendants and that, prior to causing the OCSO to

levy Plaintiff-Debtor’s bank accounts, they should have taken her deposition and/or explored

other available discovery methods to ensure that she owned the funds held in any joint account

bearing her name. The result of this failure to investigate, Plaintiffs maintain, is the

unconscionable practice of attaching funds that belonged to a non-debtor as a means of collecting

the debt owed by the non-debtor’s fellow account holder. Plaintiffs, however, fail to ground their

FDCPA claim in any federal or state law that would require the extensive pre-levy discovery they

assert was required to tailor their levying instructions in a way that was not unfair and

oppressive. 

 Plaintiffs argue in their opposition to Defendants’ motion for summary judgment that 4

the collection activity was unfair because Robert Kieffer did not receive notice of the levy placed

on his accounts. Without comment on the validity of this argument, in light of the terms joint

account holders agree to pursuant to the operation of the NJMPDAA, N.J.S.A. § 17:16I-8, the

Court simply notes that it will not entertain this claim as it was not pled in the Complaint. See

Federico v. Home Depot, 507 F.3d 188, 201-02 (3d Cir. 2007) (holding that amendment of a

complaint through briefing submitted on dispositive motions is not permitted). 

10

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 10 of 20 PageID: 707
New Jersey law requires that a judgment creditor deliver a writ of execution to the sheriff

with instructions for levying. Borromeo v. DiFlorio, 409 N.J. Super. 124, 136-37 (App. Div.

2009). It is the judgment creditor’s responsibility to “conduct discovery to locate and identify the

property to be levied upon.” Id. at 137. The law places a duty on the creditor to make a good

faith effort to ascertain the location of the debtor’s personal property, and in this regard, the New

Jersey Court Rules make available permissive supplementary procedures authorizing postjudgment discovery to aid the judgment creditor in the execution. See id. (citing N.J. Ct. R.

4:59-1(e)). The law does not, however, require that a creditor exhaust all possible measures to

locate a debtor’s assets. Id. 

The record shows, in fact, that Defendants availed themselves of post-judgment discovery

authorized by New Jersey Court Rules, serving Plaintiff-Debtor with an information subpoena

pursuant to Rules 4:59-1(e) and 6:7-2(b). The record further shows that by reason of Mrs.

Kieffer’s failure to disclose the existence of her bank accounts in response to the subpoena’s

questionnaire, Pressler only learned that she maintained an account at Ocean First Bank based on

a check she drew on that account in payment of another collection matter being handled by

Pressler. In spite of Plaintiff-Debtor’s own failure to respond to post-judgment discovery

requests for bank account information, Plaintiffs now argue that Defendants were required to

conduct further discovery before initiating the allegedly unfair levy. Plaintiffs cite no legal basis

for this purported pre-levy discovery obligation, which would require additional discovery even

after the creditor identifies assets held in the name of the debtor. As discussed above, New

Jersey law certainly imposes no such requirement, and Plaintiffs cite to no provision of the

FDCPA which would require a judgment creditor to go beyond the execution and levy process

11

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 11 of 20 PageID: 708
established by applicable state law. Indeed, the FDCPA expressly states that, except for

inconsistencies between state law and the FDCPA, the statute should not be applied to alter the

rights and responsibilities of debt collection practice under state law. 15 U.S.C. § 1692n. The

Court further notes that the extensive discovery urged by Plaintiffs as necessary under the

FDCPA would place a creditor at a significant disadvantage in collecting on its judgment, as it

would provide the judgment debtor with the opportunity to transfer, hide and otherwise shield

assets from attachment. On this record, no reasonable jury could conclude that Defendants’

conduct in causing a levy to be placed on joint accounts, without limiting the levy to the portion

of the accounts actually owned by Plaintiff-Debtor, constituted abusive, harassing and/or

unconscionable means of collecting a debt. 

Plaintiffs’ alternate theory of how the subject levy on the Ocean First Bank accounts

violated the FDCPA similarly fails to establish a prima facie FDCPA claim as a matter of law. 

Plaintiffs, as the Court wrote above, argue that it was unconscionable to place a levy upon the

entirety of the joint account to collect the debt owed only by Mrs. Kieffer when, by statute,

Defendants could presume that she owned no more than an equal share of the joint accounts she

shared with non-debtor Mr. Kieffer. The impact, if any, of the NJMPDAA’s provision regarding

presumptive ownership of MPDAs on the legality of judgment execution activity appears to be a

matter of first impression. Plaintiffs cite to no binding authority that discusses the interplay

between New Jersey judgment execution procedure, the state law concerning MPDAs and the

FDCPA. The Court, for guidance, has consulted caselaw from other jurisdictions in which state

law has adopted a presumption that holders of joint bank accounts share equal ownership or has

otherwise regarded ownership of a multiparty account as a joint tenancy. The cases have focused

12

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 12 of 20 PageID: 709
on the issue of whether the presumption of equal ownership could be rebutted and, if so, which

party bears the burden of rebutting it. See, generally, Direct Merchants Credit Card Bank v.

Greenpoint Bank, No. 36242/02, 2003 WL 2004163, at *2 (Dist Ct. Nassau Co. Mar. 11, 2003);

Danielson v. Lazoski, 209 Mich.App. 623, 626 (Ct. App. Mich. 1995); Harvey v. Harvey, 841

P.2d 375, 378 (Colo. Ct. App. 1992); Lewis v. House, 232 Va. 28, 30-31 (1986); Walnut Valley

State Bank v. Stovall, 223 Kan. 459, 462 (1978); Musker v. Gil Haskins Auto Leasing, Inc., 18

Ariz. App. 104, 107 (Ct. App. 1972). This case, of course, does not concern allocation of the

burden of proof in an execution or garnishment proceeding, that is, after a debtor’s joint account

has been attached but, more fundamentally, whether the initial restraint of the entire contents of a

joint account is proper. None of the cases the Court consulted from “equal share presumption”

jurisdictions held that a judgment creditor was required to limit attachment of a jointly held

account to the debtor’s presumptive share, and Plaintiffs cite no cases that would restrict levy in

the manner Plaintiffs claim is required. Indeed, it appears that both in jurisdictions which have

adopted the presumption and as well as jurisdictions in which ownership of a joint account may

be determined solely according to each account holder’s net contributions, the view is that while

a creditor may ultimately obtain only the portion of the account owned by the debtor, the whole

of a joint account may be attached in the first instance. See, e.g., Savig v. First Nat’l Bank of

Omaha, 781 N.W.2d 335, 341 & 346-47 (Minn. 2010) (holding, in a jurisdiction without an

equal share presumption of ownership, that a judgment debtor may attach all funds in a joint

account to satisfy the debt of a debtor account holder, even though not all of the account holders

are judgment debtors, and the burden is on the account holders to prove their respective net

contributions to the account); Brown v. Commw. of Ky., 40 S.W.3d 873, 882 (Ky. Ct. App.

13

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 13 of 20 PageID: 710
1999) (holding, in a jurisdiction without an equal share presumption, that “a party to a joint

account may, for attachment and execution purposes, initially be presumed to own the entire joint

account. Upon notice and objection, however, the debtor or any third-party account [holder] may

rebut that presumption by proof of separate net contributions.”); Denton v. Grumbach, 2 A.D.2d

420, 422 (N.Y. S.Ct. App. Div. 1956) (holding that while presumption of equal share ownership

of joint bank account may later be rebutted by proof of other ownership allocation, attachment of

the whole account in the first instance is proper).

Defendants, in moving for summary judgment on the FDCPA claim, have carried their

Rule 56(a) burden of indicating to the Court the lack of any legal or factual support for Plaintiffs’

claim that the manner in which Defendants levied upon Plaintiffs’ joint bank accounts was

oppressive, abusive, or otherwise unconscionable. Plaintiffs, in turn, have failed to persuade the

Court that the NJMPDAA’s provision establishing an equal share ownership presumption with

respect to joint bank accounts has any effect on proper levy and execution procedures under New

Jersey law. It is hornbook law that a presumption is an evidentiary device that discharges the

burden of producing evidence as to a fact; it “has the effect of compelling a particular conclusion

in the absence of contrary evidence.” Shim v. Rutgers, 191 N.J. 374, 386 (2007). Plaintiffs do

not demonstrate that the NJMPDAA’s joint account ownership provision amounts to anything

more than an allocation of the burden of proof in disputes between account holders and their

creditors. See N.J.S.A. § 17:16I-3 (providing that provisions of NJMPDAA regarding ownership

relate only to controversies between account holders and their creditors, and do not affect power

of withdrawal as determined by account contract). Plaintiffs, in short, have failed to withstand

Defendants’ motion for summary judgment with any binding or persuasive authority that the

14

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 14 of 20 PageID: 711
NJMPDAA’s equal share ownership presumption may form the basis of an FDCPA claim against

a judgment creditor that fails to limit a levy upon a debtor’s joint bank account in conformity

with the presumption. 

Apart from the initial placement of the levy upon the entirety of the account, the

Complaint charges that it was wrongful for Defendants to refuse to release the levy after they

were advised, first telephonically by Mr. Kieffer and later through written documentation, that

the funds contained in the account were not the property of Mrs. Kieffer. Once again, Plaintiffs

fail to support this argument with any authority that the FDCPA would have required a creditor

to take such action outside of the established procedures under New Jersey law for challenging

the levy. Cf. 15 U.S.C. § 1692n. As Defendants point out, the state court rules provide for an

expedited process to file and resolve claims objecting to a levy, which requires the court to hold a

hearing within seven days after a claim is made. See Rule 4:59-1(g); see also Rule 6:7-1(c)

(making procedures prescribed by Rule 4:59-1(g) applicable to the process for enforcing

judgments of the Superior Court’s Special Civil Part). The notice of bank levy, mailed to the

Plaintiff-Debtor by the OCSO on the date the Second Writ was served on Ocean First Bank,

advised Plaintiff-Debtor of the process. It stated:

If the levy is against a bank account, the bank has already been notified to

place a hold on your account. However, the funds will not be taken from

your account until the Court so orders. You may claim your exemption by

notifying the Clerk of the Court and the person who ordered this levy of

your reasons why your property is exempt. This claim must be in writing

and if it is not mailed within 10 days of services [sic] of this notice, your

property is subject to further proceedings for execution.

(Williamson Cert., Ex. I.) Indeed, following Defendants’ voluntary release of $1,000 in levied

funds based on the statutory exemption, Plaintiff-Debtor did eventually file papers with the Court

15

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 15 of 20 PageID: 712
objecting to the levy. Ultimately, the entire levy was removed by the state court on grounds that

the funds belonged to non-debtor Mr. Kieffer. Plaintiffs cannot now use the FDCPA as a means

of essentially modifying the procedure a judgment creditor must follow to execute on a valid

state court judgment and, if needed, a judgment debtor must follow to secure the release of

inappropriately levied funds. See, e.g., Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480

F.3d 470, 474-75 (7 Cir. 2007) (affirming summary judgment on 15 U.S.C. § 1692f claim in th

favor of debt collector law firm that had levied on debtor’s bank account, which included exempt

funds, reasoning that state procedures had been followed, state rules provided for prompt postlevy hearing before transfer of any property to creditor and FDCPA’s “unfair or unconscionable”

language should not be read to allow federal courts to make new rules that change state laws

about how state court judgments may be collected).

Plaintiffs also contend that they are entitled to judgment on their FDCPA claim insofar as

it is based on the continuing levy on Plaintiff-Debtor’s bank accounts following what they

characterize as her settlement of the debt with Pressler. They argue that the attachment of the

second bank account at Ocean First was unconscionable and abusive, in violation of 15 U.S.C.

§§ 1692d and 1692f, as it contravened the August 19, 2009 agreement Pressler reached with

Plaintiff-Debtor to accept a payment of $30.00 a month in satisfaction of the default judgment. 

Plaintiffs also argue that Defendants misrepresented that the debt had been settled, as they failed

to release the levy after agreeing to the payment plan. This misrepresentation, they maintain,

violated the FDCPA’s provision banning a debt collector from using “any false, deceptive, or

misleading representation or means in connection with the collection of any debt.” 15 U.S.C. §

1692e.

16

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 16 of 20 PageID: 713
The trouble with Plaintiffs’ argument regarding the continuing levy, post-August 19,

2009 agreement is two-fold. First, Plaintiffs have proffered no evidence that Pressler represented

that it would discontinue the levy. To the contrary, the letter sent by Pressler to Plaintiff to

confirm the agreement reached states that the outstanding balance of the judgment debt “will be

reduced by the amount of the bank levy once the funds have been turned over to the Plaintiff’s

attorney [i.e., Pressler].” (Williamson Cert., Ex. O.) This statement clearly reflects an

understanding that the payment plan was not intended to and did not forego New Century’s right

to execute on its judgment to the extent that the execution had been accomplished through the

bank levy. Indeed, the funds levied, the Court notes, would be insufficient to satisfy the balance

of $6,977.76 existing as of the time of the August 19, 2009 agreement, further militating against

Plaintiffs’ interpretation that the payment plan superseded, rather than supplemented, the levy in

place at the time. Second, the argument appears to be based in part on a characterization of

Ocean First Bank’s freezing of funds in a second bank account located on August 19, 2009 as a

levy separate from the bank levy in place when the payment plan agreement was reached.

Plaintiffs’ argument is simply wrong. Apparently recognizing that the agreement to accept

monthly payments in satisfaction of the debt was in fact subject to the bank levy, Plaintiffs

maintain that the referenced levy pertains only to the account frozen prior to the agreement. 

According to Plaintiffs, Defendants engaged in unconscionable behavior by failing to put a halt

to the levy process, which resulted in the freezing of a second account by Ocean First Bank later

in the day on August 19, 2009. The existing bank levy, however, included the account that was

belatedly frozen by the bank. “In the case of personalty, the lien of a judgment becomes effective

upon the making of a levy by the Sheriff.” Vineland Sav. & Loan Ass’n v. Felmey, 12 N.J.

17

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 17 of 20 PageID: 714
Super. 384, 393 (App. Div. 1950). Moreover, the law has established that once made, the lien

“dates back to the delivery of the writ to [the Sheriff].” Id.; see also N.J.S.A. § 2A:17-10 (“No

writ of execution shall bind the property or the goods of the person against whom such writ is

sued forth, but from the time that such writ shall be delivered to the sheriff, under-sheriff,

coroner or other officer, his deputy or agent, to be executed.”). The levy upon Plaintiff-Debtor’s

bank accounts at Ocean First Bank was accomplished by service of the Second Writ by the

OCSO on Ocean First Bank on August 17, 2009, and under applicable New Jersey law, dates

back to delivery of the Second Writ to the OCSO. The Second Writ, by its terms, pertains to all 5

personal property of the Plaintiff-Debtor, and Pressler’s instructions to the OCSO regarding

execution as well as the OCSO’s Affidavit of Service expressly refer to the one Ocean First Bank

account Defendants were able to identify by number and any other accounts associated with

Plaintiff-Debtor’s social security number. In other words, the levy in effect prior to the August

19, 2009 agreement bound all of Plaintiff-Debtors’ bank accounts at Ocean First Bank. The fact

that the bank froze certain funds some hours after the payment plan agreement was reached is

simply irrelevant. In short, Plaintiffs point to no evidence that would support their claim that

Defendants continued to pursue levies in spite of their agreement with Plaintiff-Debtor and thus

violated the FDCPA.

C. Conversion Claim

In addition to the FDCPA claim asserted by both Plaintiffs, Mr. Kieffer pleads a claim for

“trover/conversion/trespass to chattels” based on the allegedly unlawful exercise of dominion

 Pressler mailed the Second Writ to the Sheriff under cover of letter dated August 5, 5

2009.

18

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 18 of 20 PageID: 715
over Mr. Kieffer’s money by Defendants. The Court will refer to this claim simply as a

“conversion” claim.

The cause of action for conversion is a state common law theory of relief. The Court has

supplemental jurisdiction over this claim pursuant to 28 U.S.C. § 1367 but, in its discretion,

declines to exercise it because the Court has dismissed all of the federal claims in this case. See 6

28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction 

. . . [once] the district court has dismissed all claims over which it has original jurisdiction”);

City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 172 (1997) (stating that supplemental

jurisdiction statute codifies principle “that pendent jurisdiction ‘is a doctrine of discretion, not of

plaintiff’s right,’ and that district courts can decline to exercise jurisdiction over pendent claims

for a number of valid reasons”) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 726

(1966)). The Third Circuit has explained that “once all federal claims have been dropped from a

case, the case simply does not belong in federal court.” New Rock Asset Partners, L.P. v.

Preferred Entity Advancements, 101 F.3d 1492, 1504 (3d Cir. 1996) (quoting Lovell Mfg. v.

Export-Import Bank, 843 F.2d 725, 734 (3d Cir. 1988)). This case does not present any

circumstances which would make the exercise of the Court’s discretion to retain supplemental

jurisdiction appropriate. See United Mine Workers, 383 U.S. at 726-27. Upon consideration of

concerns of judicial economy, convenience, fairness, and comity, Mellon Univ. v. Cohill, 484

U.S. 343, 357 (1988), the Court finds that because only a state law claim will remain in the case,

 The Complaint states that this Court’s subject matter jurisdiction is grounded in 28 6

U.S.C. § 1331, based on the existence of a claim arising under federal law. It does not assert that

this court has diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) or pursuant to 28 U.S.C. §

1332(d), the provision specifically applicable to putative class actions. 

19

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 19 of 20 PageID: 716
this case properly belongs in state court. Thus, the claim for conversion will be dismissed

without prejudice.

III. CONCLUSION

For the foregoing reasons, the Court grants Defendants’ motion for summary judgment as

to the FDCPA claim. Plaintiffs’ cross-motion for summary judgment will be denied in part

accordingly. Moreover, in light of Plaintiffs’ expressed wish to discontinue pursuit of the

negligent infliction of emotional distress claim, the Court will dismiss it pursuant to Federal Rule

of Civil Procedure 41(a)(2). The remaining claim for conversion will be dismissed without

prejudice, pursuant to 28 U.S.C. § 1367(c). 

An appropriate form of order will be filed.

 s/Stanley R. Chesler 

STANLEY R. CHESLER

United States District Judge

Dated: May 21, 2012

20

Case 2:10-cv-03938-SRC-MAS Document 63 Filed 05/21/12 Page 20 of 20 PageID: 717