2010 REPORT OF THE SUPREME COURT COMMITTEE ON SPECIAL CIVIL PART PRACTICE

2010 REPORT
OF THE SUPREME COURT COMMITTEE
ON SPECIAL CIVIL PART PRACTICE
JANUARY 21, 2010
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TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION .......................1
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process
in Tenancy Actions ........................................................................................1
B. Proposed Amendment to Appendix XI-B – Return of Service on
Tenancy Summons ........................................................................................4
C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds
From Levy......................................................................................................7
D. Proposed Amendments to Appendix XI-H to Protect Exempt
Funds From Levy – Execution Against Goods and Chattels ..................11
E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor
With the Clerk .............................................................................................13
II. RULE AMENDMENTS CONSIDERED AND REJECTED............................16
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase .............16
B. Proposed Amendment to Appendix XI-X – Verified Tenancy
Complaint.....................................................................................................19
C. Proposed Amendments to Appendix XI-J – Wage Execution ................20
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to
Judgment Creditors of Applications for Post-Judgment Relief
From Levies..................................................................................................21
E. Proposed Amendment to R. 6:7-2(a) – Elimination of
Requirement to Show Good Cause for Issuance of Order to Take
Post Judgment Discovery............................................................................22
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and
XI-O - “Shall” vs. “May”...........................................................................23
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III. OTHER RECOMMENDATIONS - NONE........................................................26
IV. LEGISLATION - NONE ......................................................................................27
V. MATTERS HELD FOR CONSIDERATION ....................................................28
A. Use of Credit Cards to Pay Fees and Post Deposits .................................28
B. “Shotgun” Bank Levies...............................................................................29
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement
of Serving Defendant With Information Subpoena Before Serving
Banks ............................................................................................................30
VI. CONCLUSION......................................................................................................31
APPENDIX – Excerpts From 1992 Report of the Special Civil Part Practice
Committee to the Supreme Court (Pages 51-59 and 101-122)…………………... 32
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I. RULE AMENDMENTS RECOMMENDED FOR ADOPTION
A. Proposed Amendment to R. 6:2-3(b) – Service of Original Process in Tenancy
Actions
During the 2006-2008 Committee term a member had proposed to amend R. 6:2-3(b) so
as to resolve a perceived discrepancy between the statute and the rule regarding service in
tenancy actions. N.J.S.A. 2A:18-54 provides for service of the summons and complaint by
posting in those situations where admission to the subject premises is refused or no person above
the age of 14 is present. Rule 6:2-3(b), on the other hand, requires service by mail and by either
personal delivery or posting. In other words, there is no requirement in the rule that the Special
Civil Part Officer first attempt personal service before posting. The Committee decided, by a
vote of 16-4, to recommend amending the rule so as to require personal service, but permit
attachment to the door of the defendant’s unit if the Officer is unable to personally deliver it to
the defendant or a member of the defendant’s household over the age of 14 years. Note that, if
adopted, this rule change will require a modification of the Officer’s return of service on the
summons and this is addressed in the next section of the Report. The text of the proposed
amendment to the rule follows.
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6:2-3. Service of Process
(a) By Whom Served. ... no change.
(b) Manner of Service. Service of process within this State shall be made in accordance
with R. 6:2-3(d) or as otherwise provided by court order consistent with due process of law, or in
accordance with R. 4:4-5. Substituted service within this State shall be made pursuant to R. 6:2-
3(d). Substituted or constructive service outside this State may be made pursuant to the
applicable provisions in R. 4:4-4 or R. 4:4-5.
In summary actions for the recovery of premises [landlord and tenant actions], service of
process shall be by ordinary mail and by [either] delivery personally pursuant to R. 4:4-4. When
the person serving process is unable to effectuate service by delivering process personally,
service may be effectuated [or] by affixing a copy of the summons and complaint on the door of
the unit occupied by the defendant [subject premises]. When the plaintiff-landlord has reason to
believe that service may not be made at the subject premises, the landlord shall also request
service at an address, by certified and regular mail addressed to the tenant, where the landlord
believes that service will be effectuated. The landlord shall furnish to the clerk two additional
copies of the summons and complaint for each defendant for this purpose.
(c) Notice of Service. ... no change.
(d) Service by Mail Program. ... no change.
(e) General Appearance; Acknowledgement of Service. ... no change.
Note: Source--R.R. 7:4-6(a)(b) (first three sentences), 7:4-7. Paragraph (a) amended July 7,
1971 effective September 13, 1971; paragraph (a) amended July 14, 1972 to be effective
September 5, 1972; paragraph (b) amended November 27, 1974 to be effective April 1, 1975;
paragraphs (a)(b) amended July 17, 1975 to be effective September 8, 1975; paragraph (a)
amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 21, 1980
to be effective September 8, 1980; paragraph (b) amended July 16, 1981 to be effective
September 14, 1981; paragraphs (a) and (b) amended and paragraph (d) adopted November 5,
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1986 to be effective January 1, 1987; paragraph (c) amended November 7, 1988 to be effective
January 2, 1989; paragraphs (b) and (d) amended June 29, 1990 to be effective September 4,
1990; paragraph (d) amended July 17, 1991 to be effective immediately; paragraph (e) adopted
July 14, 1992 to be effective September 1, 1992; paragraphs (a) and (e) amended July 13, 1994
to be effective September 1, 1994; paragraph (d)(4) amended July 5, 2000 to be effective
September 5, 2000; paragraphs (a), (b), (d), (d)(2), and (e) amended July 12, 2002 to be effective
September 3, 2002; paragraphs (b), d(4) and (5) amended July 28, 2004 to be effective
September 1, 2004; paragraph (b) amended__________, 2010 to be effective___________,2010.
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B. Proposed Amendment to Appendix XI-B – Return of Service on Tenancy
Summons
Having agreed to recommend amending R. 6:2-1, as described above in Section I.A. of
this Report, the Committee turned its attention to the Special Civil Part Officer’s return of
service on the summons, which is a mandated form set forth in Appendix XI-B to the court rules.
Members of the Committee debated the degree of detail that should be required if the officer is
unsuccessful in making personal service. Concerns ranged from fear of imposing unreasonable
requirements on the officers when they are unable to gain access to the door of the tenant’s unit
in a large apartment building, on the one hand, to a need for specifics when service of process is
challenged by the defendant, on the other. Included was the thought that the court officers
should have a clear understanding of what is expected of them by the court. Ultimately, the
Committee decided (by a vote of 9 in favor and 7 opposed) to recommend amending the return
of service on the summons by adding a line for the court officer to describe the efforts made to
personally serve the defendant, if that effort was unsuccessful, and to retain the current line for
the officer to describe the premises when the summons has been posted. It will be up to the
judge to determine the adequacy of service if that issue is raised in the litigation. The proposed
amendments to Appendix XI-B follow.
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APPENDIX XI-B. TENANCY SUMMONS
AND RETURN OF SERVICE (R. 6:2-1)
Plaintiff or Plaintiff’s Attorney Information: Superior Court of New Jersey
Name: _____________________________ Law Division, Special Civil Part
Address: ___________________________ __________________ County
___________________________________ ___________________________
Phone: (___)_________________________ ___________________________
(____)______________________
______________________________, Plaintiff(s) Docket Number: LT - _____________
(to be provided by the court)
versus
Civil Action
______________________________, Defendant(s) SUMMONS
LANDLORD/TENANT
Defendant Information:
Name: __________________________ ___Nonpayment
Address: _________________________ ___Other
_________________________________
Phone:(___)_______________________
NOTICE TO TENANT: The purpose of the attached complaint is to permanently remove you and your
belongings from the premises. If you want the court to hear your side of the case you must appear in
court on this date and time: _____________ at ________ a.m./p.m., or the court may rule against you.
REPORT TO: ___________________________________
If you cannot afford to pay for a lawyer, free legal advice may be available by contacting Legal Services at
________________. If you can afford to pay a lawyer but do not know one, you may call the Lawyer Referral
Services of your local county Bar Association at _______________.
You may be eligible for housing assistance. To determine your eligibility, you must immediately contact the
welfare agency in your county at __________________, telephone number ____________________.
If you need an interpreter or an accommodation for a disability, you must notify the court immediately.
Si Ud. no tiene dinero para pagar a un abogado, es posible que pueda recibir consejos legales gratuitos si se
comunica con Servicios Legales (Legal Services) al ____________. Si tiene dinero para pagar a un abogado
pero no conoce ninguno puede llamar a Servicios de Recomendación de Abogados (Lawyer Referral Services)
del Colegio de Abogados (Bar Association) de su condado local al_________________.
Es posible que pueda recibir asistencia con la vivienda si se comunica con la agencia de asistencia publica
(welfare agency) de su condado al _____________________________________, telefono ___________.
Si necesita un interprete o alguna acomodación para un impedimento fisico, tiene que notificárselo
inmediatamente al tribunal.
Date: ___________________ _________________________________________
Clerk of the Special Civil Part
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COURT OFFICER’S RETURN OF SERVICE (FOR COURT USE ONLY)
Docket Number: ________________________Date: __________________Time: ______________
WM ___ WF ___ BM ___ BF OTHER _____ HT ____ WT _____ AGE ___ MUSTACHE ___ BEARD ___ GLASSES___ NAME:
____________________________RELATIONSHIP: __________
Efforts Made to Personally Serve __________________________________________________________________________
_____________________________________________________________________________________________________
Description of Premises if Posted __________________________________________________________________________
_____________________________________________________________________________________________________
I hereby certify the above to be true and accurate: _________________________________________________________
Special Civil Part Officer
[Note: Former Appendix XI-B, consisting of model tenancy complaint and summons forms, deleted, and new tenancy
summons and return of service form adopted July 12, 2002 to be effective September 3, 2002; amended July 27, 2006 to be
effective September 1, 2006: amended_____________, 2010 to be effective___________, 2010.]
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C. Proposed Amendments to R. 6:7-1 – Protection of Exempt Funds From Levy
The Committee stated in its 2008 report to the Supreme Court that it was holding for
further consideration the idea of going beyond the provision of a speedy remedy when bank
accounts are levied upon that contain funds that are exempt from levy under federal or state law
to find a mechanism that can prevent it from happening in the first place. The funds in question
come from a variety of sources, such as Social Security, S.S.I., V.A., unemployment, workers’
compensation, welfare and child support payments. The Committee noted that in 2006 the
Supreme Court accepted the its recommendation to provide a speedy mechanism in the court
rules for recipients of exempt funds to seek their release from levy (see, R. 6:6-6(a)), but
concluded that more should be done to prevent such levies in the first place because it is often
difficult to undo the damage they cause to those members of society least able to afford it. These
consequences include bank fees for checks that have bounced, bank fees for freezing the debtor’s
account pursuant to the levy, evictions for nonpayment of rent and deprivation of life’s
necessities.
The Committee was well aware of the danger of intruding on the legislative realm if it
sought to create new substantive rights, but it became clear that the rights in question had already
been defined in both federal and state legislation and the question is one of how best to
implement those legislative determinations in the judicial context. The mechanism
recommended by the Committee consists of limiting the scope of any levy on bank accounts so
that it conforms to established law and so that it can be easily implemented by the third-party
garnishee banks. The Committee was informed that several large banks are already doing this
voluntarily and that other jurisdictions have pursued similar efforts along these lines.
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The easiest scenario to address is one in which the deposits into a judgment-debtor’s
account have been made electronically on a recurring basis and have come exclusively from an
exempt source. This is not difficult for banks to discern from their electronic records. Some
accounts, however, have been in existence for many years and it could be difficult to determine
which funds are exempt when they have been commingled with non-exempt funds if the bank
has to look at the entire deposit history of an account. As a practical matter the Committee
concluded, as most judges have when called upon to rule in these matters, that if nothing but
exempt funds have been electronically deposited into an account for 90 days, the account almost
certainly consists exclusively of those exempt funds and the entire amount should be protected
from levy. It is also the period of time that is of most interest to judgment-creditors, as reflected
in Question #11 in the mandatory form for the Information Subpoena contained in Appendix XIL
to the court rules. Question #11 asks the judgment-debtor for copies of the three most recent
bank statements for any accounts containing funds from seven exempt sources.
With regard to situations where funds from exempt and non-exempt sources have been
commingled within the 90 days preceding the levy, the Committee concluded that funds
deposited electronically on a recurring basis by exempt sources within the last 45 days should be
presumed by the garnishee bank to be exempt from levy. Again, this should be easily
discernable by the bank from its electronic records.
These recommendations have been incorporated into proposed amendments to R. 6:7-1,
as set forth infra. They will comprise a new paragraph (b), divided into two parts that address
the situations described above. The implementation of the rule amendments would be
accomplished by corresponding modifications to the form of the writ of execution against goods
and chattels contained in Appendix XI-H to the rules (see Section I.D. of this Report, below).
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Note that the addition of a new paragraph (b) will require the redesignation of the current (b), (c),
and (d) as paragraphs (c), (d) and (e), respectively.
It should be noted that the Committee was divided on the question of whether to include
the statutory $1,000 exemption (regardless of source) in the rule amendments. Some members
felt that doing so would effectively preclude the judgment-debtor from choosing to exempt
$1,000 worth of tangible property or cash from levy rather than the $1,000 in the bank account
when the debtor might prefer to use the money in the account to pay the judgment. Others
thought that funds necessary to meet immediate basic needs (an amount at least equal to the
$1000 general exemption) can and must be protected from judicial restraint in all consumers’
bank accounts in order to achieve a minimum level of basic fairness --- and protection from
extreme hardship --- for low-income New Jerseyans. Ultimately the Committee decided to leave
to the debtor the choice of which funds to protect by using the statutory $1,000 exemption and
focus instead on protecting the funds that are exempt by statute in their entirety. The proposed
amendments follow.
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6:7-1. Requests for Issuance of Writs of Execution; Contents of Writs of Execution and Other
Process for the Enforcement of Judgments; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement
in Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Contents of Writs of Execution and Other Process for the Enforcement of
Judgments. All writs of execution and other process for the enforcement of judgments shall
provide that any levy pursuant thereto shall exclude:
(1) all funds in an account of the debtor with a bank or other financial institution, if all
deposits into the account during the 90 days immediately prior to service of the writ were
electronic deposits, made on a recurring basis, of funds identifiable by the bank or other financial
institution as exempt from execution, levy or attachment under New Jersey or federal law, and
(2) all funds deposited electronically in an account of the debtor with a bank or other
financial institution during the 45 days immediately prior to service of the writ that are
identifiable by the bank or other financial institution as exempt from execution, levy or
attachment under New Jersey or federal law.
(c) [ (b) ] Notice to Debtor. ... no change to text.
(d) [ (c) ] Warrant of Removal; Issuance, Execution. ... no change to text.
(e) [ (d) ] Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change to text.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b) adopted and caption
amended July 16, 1981 to be effective September 14, 1981; paragraph (b) amended November 1, 1985 to be
effective January 2, 1986; caption amended and paragraph (c) adopted November 7, 1988 to be effective January 2,
1989; paragraphs (b) and (c) amended July 14, 1992 to be effective September 1, 1992; caption and paragraph (c),
caption and text, amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text amended
June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d) adopted July 18, 2001 to be
effective November 1, 2001; paragraph (c) amended September 14, 2004 to be effective immediately; paragraph (a)
amended July 27, 2006 to be effective September 1, 2006; paragraph (b) adopted and former paragraphs (b), (c), and
(d) redesignated as (c), (d), and (e) respectively ______________, 2010 to be effective____________, 2010.
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D. Proposed Amendments to Appendix XI-H to Protect Exempt Funds From
Levy – Execution Against Goods and Chattels
To effectuate the protection of exempt funds from levy as set forth in the proposed
amendments to R. 6:7-1 in Section I.C. of this Report, above, the Committee recommends that
the form for the writ of execution against goods and chattels set forth in Appendix XI-H to the
court rules be amended accordingly. All the writs issued by the Special Civil Part statewide will
contain these provisions since the form is generated by the Automated Case Management System
(ACMS). It is important for the garnishee bank to know that the levy pursuant to the writ should
not include those funds in the judgment-debtor’s account that the bank can identify as being
exempt under federal or state law and so the amended form of the writ would be explicit in this
regard. As noted in the previous section of this Report, several banks are already doing this
voluntarily, utilizing their electronic record keeping capability to identify the exempt funds. The
proposed amendments to Appendix XI-H follow.
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APPENDIX XI-H EXECUTION AGAINST GOODS AND CHATTELS
DOCKET NO.: ___ DC-______-__ SUPERIOR COURT OF NEW JERSEY
JUDGMENT NO.: ___ VJ-_______-__ SPECIAL CIVIL PART
WRIT NUMBER: ____ _______________ COUNTY
STATE OF NEW JERSEY
EXECUTION AGAINST GOODS AND CHATTELS
PLAINTIFF(S)
VS.
DEBTORS: __________________________
DEFENDANT(S) __________________________
ADDRESS OF FIRST DEBTOR:
STREET ADDRESS
CITY NJ ZIP
TO: ___________________________________________
COURT OFFICER OF THE SPECIAL CIVIL PART
YOU ARE ORDERED to levy on the property of any of the debtors designated herein; your actions may include,
but are not limited to, taking into possession any motor vehicle(s) owned by any of the debtors, taking possession of
any inventory and/or machinery, cash, bank accounts, jewelry, electronic devices, fur coats, musical instruments,
stock certificates, securities, notes, rents, accounts receivable, or any item(s) which may be sold pursuant to statute
to satisfy this execution in full or in part. Any levy pursuant to this writ shall exclude (1) all funds in an account of
the debtor with a bank or other financial institution, if all deposits into the account during the 90 days immediately
prior to service of the writ were electronic deposits, made on a recurring basis, of funds identifiable by the bank or
other financial institution as exempt from execution, levy or attachment under New Jersey or federal law, and (2) all
funds deposited electronically in an account of the debtor with a bank or other financial institution during the 45
days immediately prior to service of the writ that are identifiable by the bank or other financial institution as exempt
from execution, levy or attachment under New Jersey or federal law. All proceeds are to be paid to the court officer
who shall pay them to the creditor or the attorney for the creditor, or, if this is not possible, to the court. This order
for execution shall be valid for two years from this date.
Local police departments are authorized and requested to provide assistance, if needed, to the officer executing
this writ. This does not authorize entry to a residence by force unless specifically directed by court order.
Judgment Date _________ Date: ________________
Judgment Amount................................................. $________
Costs and Atty. Fees .............................................$________ _________________________________
Subsequent Costs ..................................................$________ Judge
Total......................................................................$________
Credits, if any .......................................................$________
Subtotal A.............................................................$________ _________________________________
Interest .................................................................. $________ Clerk of the Special Civil Part
Execution costs and mileage................................. $________
Subtotal B ............................................................. $________ I RETURN this execution to the Court
Court officer fee....................................................$________
Total due this date................................................. $________ ( ) Unsatisfied ___________________
Date: ________________.................................... ( ) Satisfied ( ) Partly Satisfied
Property to be Levied Amount Collected. . ____________
Upon and Location of Same:
Fee Deducted. . . . . . ____________
Amount Paid to Atty.____________
CITY ST ZIP
CREDITOR’S ATTORNEY AND ADDRESS: Date: ______________
______________________________________
______________________________________
______________________________________ ______________________________
CITY NJ ZIP Court Officer
Telephone: ___-__________
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E. Proposed Amendment to R. 6:7-1(b) – Filing Notice to Debtor With the Clerk
Rule 4:59-1(g) requires a levying officer (Sheriff’s Officer for writs emanating from the
Civil Part of the Law Division; Special Civil Part Officer for writs issued by the Special Civil
Part of the Law Division) to mail copies of the Notice to Debtor (as set forth in Appendix VI to
the rules) to the judgment-debtor and judgment-creditor and to file a copy with the clerk. Rule
6:7-1(b) makes R. 4:59-1(g) applicable to actions in the Special Civil Part. The vast majority of
the 140,000 writs of execution against goods and chattels issued by the Special Civil Part each
year are used to levy against bank accounts owned by judgment-debtors and the clerks thus
receive two separate copies of the Notice to Debtor: the first one from the levying officer and
the second with the supporting papers submitted by the judgment-creditor when moving for a
turnover order. A member of the Committee explained, on behalf of the Civil Division
Managers and Assistant Managers, that the volume of these documents has become impossible to
keep up with and the Conference of Civil Division Managers thus recommended in its Report on
Workload Reduction Through Operational Efficiencies that the rule be amended to eliminate the
requirement that the officer file a copy when making a bank levy since the creditor is required to
submit a copy with the motion for a turnover order.
The provision in question was adopted by the Supreme Court in 1985 on the joint
recommendation of the Civil and Special Civil Part Practice Committees. The rationale for
requiring the Court Officer to file a copy of the Notice to Debtor with the clerk, however, was
not discussed in either committee's 1985 report to the Supreme Court.
This Committee decided to recommend an amendment to R. 6:7-1(b) that would require
filing of a copy of the Notice to Debtor by the Special Civil Part Officer only in cases involving
a levy on tangible physical property; a copy of the Notice would still be required with the
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judgment-creditor’s motion for a turnover order in cases involving a bank levy. The purpose of
the amendment is to eliminate the duplicative filings in connection with executions on bank
accounts. The Committee proposes that R. 6:7-1(b) be amended, rather than R. 4:59-1(g),
because the number of bank levies is so much greater in the Special Civil Part and the
Committee is not aware of a comparable problem in Civil Part actions. The text of the proposed
rule amendment follows. Please note that paragraph (b) will become paragraph (c) if the
Supreme Court approves the amendment to the rule for the purpose of protecting exempt funds
from levy, as proposed in section I.C. of this Report, above.
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6:7-1. Requests for Issuance of Writs of Execution; Notice to Debtor; Claim for Exemption;
Warrant of Removal; Enforcement of Consent Judgments and Stipulations of Settlement in
Tenancy Actions
(a) Requests for Issuance; Intention to Return. ... no change.
(b) Notice to Debtor. The provisions of R. 4:59-1(g) respecting notice to debtor,
exemption claims and deferment of turnover and sales of assets shall apply to all writs of
execution issued by the Law Division, Special Civil Part, except that a copy of the Notice to
Debtor shall not be filed by the levying officer with the clerk of the court after a levy on a bank
account. The notice to debtor shall be in the form prescribed by Appendix VI to these rules.
(c) Warrant of Removal; Issuance, Execution. ... no change.
(d) Enforcement of Consent Judgments and Stipulations of Settlement in Tenancy
Actions. ... no change.
Note: Source – R.R. 7:11 1; former rule redesignated as paragraph (a) and paragraph (b)
adopted and caption amended July 16, 1981 to be effective September 14, 1981; paragraph (b)
amended November 1, 1985 to be effective January 2, 1986; caption amended and paragraph (c)
adopted November 7, 1988 to be effective January 2, 1989; paragraphs (b) and (c) amended July
14, 1992 to be effective September 1, 1992; caption and paragraph (c), caption and text,
amended July 13, 1994 to be effective September 1, 1994; paragraph (a) caption and text
amended June 28, 1996 to be effective September 1, 1996; caption amended and paragraph (d)
adopted July 18, 2001 to be effective November 1, 2001; paragraph (c) amended September 14,
2004 to be effective immediately; paragraph (a) amended July 27, 2006 to be effective
September 1, 2006; paragraph (b) amended__________, 2010 to be effective________, 2010.
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II. RULE AMENDMENTS CONSIDERED AND REJECTED
A. Proposed Amendment to R. 6:1-2 – Monetary Limits Increase
During the 2006-2008 term, the Committee discussed the possibility of raising the
monetary limits for small claims and regular Special Civil Part cases. At the request of the
Chair, staff had researched the effect of inflation on those limits and reported back to the
Committee. The results of that research are set forth below in an excerpt taken from the
Committee’s 2008 Report to the Supreme Court (pages 40-41). In 2008 the Committee
concluded that there should be no increase in the limits at that time because of the recent large
increases in the volume of collection cases and the fact that the current monetary limits were still
within the boundaries set in 1994 when adjusted for inflation.
Those two factors retain their validity today. In fact, contract filings increased from
Court Year 2007 to 2008 by an even greater margin than had been predicted in the Committee’s
2008 Report; the projection was for a 20% increase, from 299,438 to 361,647, while the actual
number of filings for 2008 turned out to be 383,154, which represents an increase of 28% over
2007. The number of contract filings in Court Year 2009 came to 378,068, which is 1% less
than 2008, but still a 26% increase over 2007. This indicates that the higher level of contract
filings will be sustained and was not a one-time phenomenon. After a lengthy discussion this
Committee decided, by a vote of 14-5, with one abstention, not to recommend any increase in the
current monetary limits. The excerpt from the Committee’s 2008 Report follows.
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EXCERPT FROM 2008 REPORT OF THE SPECIAL CIVIL PART PRACTICE
COMMITTEE TO THE SUPREME COURT – PAGES 40-41
The Committee discussed the possibility of raising the monetary limits for small claims
and regular Special Civil Part cases. The Chair asked staff to research the effect of inflation on
those limits and report back to the Committee.
A history of the Special Civil Part monetary limits over the last quarter century shows the
following progression:
Year Regular SCP Limit Small Claims Limit
1981 $5,000.00 $1,000.00
1992 $7,500.00 $1,500.00
1994 $10,000.00 $2,000.00
2002 $15,000.00 $3,000.00
Note that the ratio of the two limits has always been maintained at 5 to 1.
Taking into account changes in the Consumer Price Index for Urban Wage Earners and
Clerical Workers, published by U.S. Department of Labor’s Bureau of Labor Statistics for New
York City and Northeastern New Jersey, the cost of living increased by 17.8% between
September 2002 (the last time the Special Civil Part monetary limits were raised) and September
2007. This would appear to justify an increase in the monetary limits from $15,000.00 to
$17,600.00 and from $3,000.00 to $3,534.00 for regular Special Civil Part cases and small
claims, respectively.
Taking a look at inflation from a longer perspective, however, raises the question of
whether such a change would be appropriate at this time. The value of the 1994 limits
($10,000.00 and $2,000.00) was $12, 030.00 and $2,406.00 in 2002, and those values projected
to September 2007 come out at $14,171.00 and $2874.00, respectively. This indicates that we
have not yet exceeded the 1994 limits when they are adjusted for inflation.
An examination of changes in the contracts caseload since 2002 suggests a need for
caution when considering another increase in the monetary limits. The chart below indicates that
the contracts caseload increased by 20% in Court year 2003, which is when the last monetary
limit increase took effect. Between Court Year 2003 and Court Year 2007 there was another
20% increase in the caseload, despite a 12% decline in 2005. For Court Year 2008 the AOC has
figures for the first 5 months and when they are projected for the entire year we can expect
another 20% increase in the contacts caseload. Note: When that 5 month period is compared to
the same period in Court Year 2006, we see an increase of almost 27%.
The most recent contract caseload increase may be due to the confluence of an economic
slowdown and changes in the bankruptcy laws that preclude discharge of the debts that now
appear in the contracts caseload. Whatever the cause, we know from past experience that an
increase in the Special Civil Part monetary limits results in a significant increase in the caseload.
18
This, coupled with the fact that we have not yet exceeded the 1994 monetary limits (when
adjusted for inflation) suggests that this would not be a good time to raise the monetary limits
again. Note that while the volume of tenancy actions and small claims has remained relatively
static over the years, these cases and the greatly increased number of contract cases are being
handled by 30% fewer staff than the Special Civil Part had in 1994. During the next Term, the
Committee plans to explore the possibility of raising the limits for collection actions and small
claims, neither of which involves the extent of discovery required for tort actions.
Court Year Contract Filings % Increase
2002 208,259 ---
2003 249,934 20%
2004 269,989 8%
2005 236,670 -12%
2006 270,692 14%
2007 299,438 11%
2008 361,647* 20%*
*Projections based on contract filings during the first 5 months of Court Year 2008
19
B. Proposed Amendment to Appendix XI-X – Verified Tenancy Complaint
The Committee considered correspondence between AOC Staff and an attorney regarding
the clarity (or asserted lack thereof) in paragraph 9A and a problem with paragraph 9B of the
Verified Complaint – Non payment of Rent form contained in Appendix XI-X to the Rules. It
was noted during the discussion of this item that the language of the Verified Complaint had
been crafted through a lengthy process of discussion that included this Committee, the
Committee of Special Civil Part Supervising Judges and the Special Civil Part Management
Committee. It was also noted that the request for more clarity was not specific as to what
changes should be made to achieve that goal. The Committee decided to take no further action
on the matter.
20
C. Proposed Amendments to Appendix XI-J – Wage Execution
The Committee considered correspondence between the Acting Administrative Director
of the Courts, and an attorney who proposed amending the model Wage Execution form, set
forth in Appendix XI-J to the Rules, to make clear that the judge has discretion to order that an
amount less than 10% be withheld from the judgment-debtor’s earnings. In his view, the current
form implies that the court has no discretion to order an amount less than 10% and he pointed out
that there is no such provision in N.J.S.A. 2A:17-56, the statute that authorizes wage withholding
to satisfy civil judgments. In discussing the question, the Committee had before it copies of the
Wage Execution form and the statute. Some members favored the proposal, while others
opposed it. Ultimately the Committee decided to recommend no further action, principally
because both the Notice of Application for Wage Execution and the Execution itself make clear
that the judgment-debtor has a continuing right to object to the execution and request a reduction,
even after the judge has signed the order. Moreover, there simply was no basis to conclude that
the judges who handle these matters are not familiar with the law that governs them.
21
D. Proposed Amendment to R. 6:6-6 - Provision of Notice to Judgment
Creditors of Applications for Post-Judgment Relief From Levies
A member of the Committee complained that judgment-creditors often do not get
adequate notice of applications for relief from levies to be able to appear and protect their
clients’ rights. The attorney suggested that there should be a requirement of 48 hours notice or
that a hearing be held on the judgment-debtor’s application at 3:00 p.m. on the date of
application. This would require an amendment to R. 6:6-6 which governs post-judgment
applications for relief in tenancy actions and to claims of exemption from levy in other Special
Civil Part actions. Because applications brought pursuant to the rule are emergent in nature, the
Committee felt that there should be no time barrier to immediate relief, assuming that the rights
of all parties to the litigation are protected, and decided to refer the matter to the Committee of
Special Civil Part Supervising Judges for further discussion.
22
E. Proposed Amendment to R. 6:7-2(a) – Elimination of Requirement to Show
Good Cause for Issuance of Order to Take Post Judgment Discovery
The Committee considered a request from a member of the Civil Practice Committee for
an amendment to R. 6:7-2(a) that would either remove any "good cause" requirement from the
rule or set forth in the rule that the existence of an unpaid judgment is sufficient "good cause" for
the court to order supplementary proceedings to discover assets that could be used to satisfy a
judgment. The Committee concluded that it is up to the judge to decide on a case by case basis
what set of circumstances constitute good cause to warrant entry of an order for supplementary
proceedings and thus rejected the proposed amendments.
23
F. Proposed Amendments to Rule 6:7-2 and Appendices XI-M and XI-O -
“Shall” vs. “May”
This Committee considered correspondence from one of its mambers and a member of
the Supreme Court Civil Practice Committee on behalf of the New Jersey Creditors Bar
Association, complaining that some judges routinely modify orders to enforce litigant’s rights by
changing the word “shall” to “may,” in reference to the issuance of a warrant for arrest if the
target of a post-judgment information subpoena fails to obey the court’s order. They pointed out
that R. 6:7-2(f) mandates the use of the form of order set forth in Appendix XI-O and that the
form uses the term “shall.” The end result, they said, is the development of local practices and
they proposed the addition of a paragraph (j) to the rule that would make the relaxation rule (R.
1:1-2) inapplicable to R. 6:7-2(d) through (i) and the forms set forth in Appendices XI-M
through XI-Q.
This Committee was advised that the Civil Practice Committee had tentatively approved
proposed amendments to Appendices XI-M (Notice of Motion for Order Enforcing Litigant’s
Rights) and XI-O (Order to Enforce Litigant’s Rights) that would change the word “shall” to
“may” in reference to whether a warrant will issue and attorney’s fees be awarded if the
respondent fails to comply with the order. The Civil Practice Committee was waiting for advice
from this Committee before deciding whether to recommend the changes to the Supreme Court.
This Committee had before it copies of the proposed amendments being considered by the Civil
Practice Committee.
During this Committee’s discussion it was pointed out that while the form of the order set
forth in Appendix XI-O uses the word “shall,” and while use of the form is mandatory under R.
6:7-2(f), there are occasions on which a judge would, in the exercise of his or her discretion,
substitute the word “may” for “shall” as, for example, when the target of the order is known to be
24
an 85-year old with a heart condition. It was thus clear that the rule should not be modified so as
to preclude the court’s ability to relax the rule pursuant to R. 1:1-2. On the other hand, it was
also apparent to the Committee that such a change to the form of the order in every case or on a
regular and routine basis would both (1) weaken the perception of the court’s determination to
compel answers to the questions in the information subpoena and (2) lead to inconsistent
practices from county to county. It should also be clear that the use of the word “shall” in the
prescribed form of the Notice of Motion for Order Enforcing Litigant’s Rights (Appendix XI-M)
simply tells the judgment-debtor what relief the creditor is seeking. The Order to Enforce
Litigant’s Rights (Appendix XI-O) tells the judgment-debtor what ultimately will happen if s/he
continues to defy the subpoena and the court’s order to comply with it. In no way does use of
the word “shall” in the two Appendices impair the discretion of the judge to refuse to sign the
arrest warrant when asked to do so.
One of the members of this Committee, who is a judge, stated that in the past he had
often substituted the word “may” for the imperative “shall,” but stopped the practice after
carefully re-reading the rule and the forms provided for its enforcement in the Appendices to the
Rules, the use of which is mandated by the Supreme Court. Considering the text of R. 6:7-2 and
the implementing Appendices in their entirety, he concluded that the protections built into the
mechanism for the judgment-debtor were so extensive that by the time the arrest warrant is
actually issued it is indeed the last resort to force compliance with the information subpoena and
the court’s order to enforce it. These protections include:
(1) A statement in the required form of the Information Subpoena itself (Appendix XI-L)
warning the judgment-debtor that failure to comply with it “may result in your arrest and
incarceration.”
(2) A requirement in R. 6:7-2(c) that the Information Subpoena be served personally or
simultaneously by regular and certified mail return-receipt-requested.
25
(3) Requirements in R. 6:7-2(e) that the notice of motion to enforce litigant’s rights (a) be in
the form set forth in Appendix XI-M, (b) warn the debtor that s/he may be arrested and held until
s/he has complied with the Information Subpoena, (c) state that a court appearance can be
avoided by compliance with the Information Subpoena and (d) be served either personally or
simultaneously by regular and certified mail return-receipt-requested.
(4) Requirements in R. 6:7-2(f) that the order to enforce litigant’s rights be in the form set
forth in Appendix XI-O, be served personally or simultaneously by regular and certified mail
return-receipt-requested and warn the debtor that upon failure to comply with the Information
Subpoena within 10 days, “the court will issue an arrest warrant.”
(5) Requirements in R. 6:7-2(g) that in order to get an arrest warrant the judgment-creditor
must certify that the debtor has not complied with the order to enforce litigant’s rights, that the
warrant be executed only between the hours of 7:30 a.m. and 3:00 p.m. on a day when court is in
session, that if the debtor was served with the notice of motion and order by mail the warrant
must be executed only at the address to which they were sent and that the debtor be brought
before a judge forthwith and released immediately upon completion of the Information
Subpoena.
For these reasons the Committee member who had originally suggested the modification
to circumscribe the court’s discretion moved to recommend that the rule and forms be left as they
are. The motion was seconded by a representative of Legal Services of New Jersey (LSNJ) and
the motion was adopted by a vote of 19 in favor and one abstention.
It should be noted that the reasoning of the Special Civil Part Practice Committee in
originally proposing this enforcement mechanism is explained in the Committee’s 1992 Report
to the Supreme Court at pages 51 – 59 and 101-122. An excerpt containing those pages is
attached as an appendix to this Report.
26
III. OTHER RECOMMENDATIONS - NONE
27
IV. LEGISLATION - NONE
28
V. MATTERS HELD FOR CONSIDERATION
A. Use of Credit Cards to Pay Fees and Post Deposits
The Committee endorses the idea of permitting the payment of filing fees and posting of
deposits by credit card but recognizes that formulation of the language for the rule change should
await completion of the AOC’s work on this project. Staff informed the Committee that the
Information Technology Office, Office of Management Services and the Civil Practice Division
of the Office of Trial Court Services are already deeply involved in this project.
29
B. “Shotgun” Bank Levies
The Committee discussed the practice of some Special Civil Part Officers using a
“shotgun” approach by serving copies of writs of execution on a number of banks, not knowing
whether the judgment-debtor in fact has an account at any of them. The Committee asked for
advice from the Conference of Civil Division Managers, the Special Civil Part Management
Committee (composed of the Assistant Civil Division Managers responsible for running the
clerks’ offices in the counties) and the Committee of Special Civil Part Supervising Judges as to
the extent of the practice and the problems, if any, that it raises. The Supervising Judges will
discuss the matter at their February meeting and this Committee will then transmit its
recommendations to the Supreme Court in the form of a supplemental report.
30
C. Proposed Amendment to R. 6:7-2(b)(2) - Eliminate Requirement of Serving
Defendant With Information Subpoena Before Serving Banks
A member of the Committee, has proposed an amendment to R. 6:7-2(b)(2) that would
eliminate the requirement, presently in the rule, of serving a judgment debtor with an information
subpoena and getting no response, before the judgment-creditor can serve an information
subpoena on a bank to find out if the debtor has an account there. The Committee will report on
this proposal in its supplemental report to the Supreme Court.
31
VI. CONCLUSION
The members of the Supreme Court Committee on Special Civil Part Practice appreciate
the opportunity to have served the Supreme Court in this capacity.
Respectfully submitted,
Hon. Joseph R. Rosa, J.S.C., Chair
Mary Braunschweiger, Civ. Div. Mgr.
Felipe Chavana, Esq.
I. Mark Cohen, Esq.
Gregory G. Diebold, Esq.
JoAnn Ezze, Asst. Civ. Div. Mgr.
Gerard J. Felt, Esq.
Eric H. Fields, Court Officer
Lloyd Garner, Esq., Asst. Civ. Div. Mgr.
Joanne Gottesman
Linda G. Hampton, Esq.
Hon. John E. Harrington, J.S.C.
Kennon Jenkins
Hon. Fred H. Kumpf, J.S.C.
Adolfo L. Lopez, Esq.
David G. McMillin, Esq.
Jonathan Mehl, Esq.
Raymond F. Meisenbacher, Jr., Esq.
Hon. David W. Morgan, J.S.C.
Anshu Pathak, Esq.
W. Peter Ragan, Sr., Esq.
Daniel I. Rubin, Esq.
Stephen E. Smith, Esq.
Hon. Jerome M. St. John, J.S.C.
William A. Thompon, II, Esq.
Andrew R. Wolf, Esq.
Robert J. Piscopo, AOC Staff
Robert D. Pitt, Esq., AOC Staff
APPENDIX – Excerpts From 1992 Report of the Special Civil Part
Practice Committee to the Supreme Court (Pages 51-59 and 101-122)
32
51
M. Proposed Amendments to R. 6:7-2--Administration of
Oath During Post-Judgment Discovery Proceedings;
Enforcement of Discovery Orders and Information
Subpoenas
The Committee proposes two kinds of amendments to
R. 6:7-2, which deals with post-judgment orders for discovery
and information subpoenas. The first is a simple amendment to
R. 6:7-2(a) that will make clear that the attorney for the
judgment-creditor can administer the oath to the judgmentdebtor
who has been ordered to appear for post-judgment
discovery. The second category of amendments deals with the
enforcement of discovery orders and information subpoenas,
which the Committee has found to be increasingly troublesome.
Enforcement problems may be increasing because more creditors,
including those who proceed pro se, are using post-judgment
discovery since the information subpoena became available in
1990. Whatever the cause, the Committee proposes a comprehensive
overhaul and codification of the enforcement procedures.
Rule 6:7-2(c) provides, in pertinent part, that "...the
failure to comply with an information subpoena shall be
treated as a failure to comply with an order for discovery
entered in accordance with paragraph (a) of this rule." The
question then arises as to whether the judgment creditor
should seek to enforce litigant's rights pursuant to R. 1:10-5
by way of order to show cause or motion. Papers submitted to
52
the Committee by one attorney, who is a member, indicated that
he uses the motion procedure. The Special Civil Part Clerk's
office in Atlantic County, on the other hand, supplies a form
petition for an order to show cause, together with a form of
order, to the litigant whose information subpoena has been
unanswered. In a letter and memorandum to the Committee,
another member contended that the proper procedure is by way
of motion. Others use the order to show cause.
The Committee concluded that either procedure is permitted
by the applicable court rule, Supreme Court opinion and
according to other published authorities on the subject.
Rule 1:6-2 states that "[a]n application to the court for an
order shall be by motion, or in special cases, by order to
show cause." The Supreme Court stated, in N.J. Dept. of
Health v. Roselle, 34 N.J. 331, 343 (1961), that either
procedure can be used by a litigant seeking supplemental
relief in a civil matter. The same conclusion is reached in
4A N.J. Practice (Walzer, Civil Practice Forms) 4th ed.,
1991) § 84.2 at 438. The skills training course materials
distributed to new attorneys in 1976-77 advocated use of the
order to show cause procedure. See: Nudelman and Rosenberg,
Collection Practice in New Jersey (I.C.L.E., 1976) at pp.
31-35.
The real question, if either procedure is permissible, is
which is best for accomplishing the purpose of the discovery
53
order and information subpoena while promoting the efficient
handling of the applications for supplemental relief. Another
question is the type of notice to the debtor, mail or personal
service, that the court will require before issuing an arrest
warrant; most judges require personal service so as to ensure
that notice and an opportunity to be heard are given before a
judgment-debtor is deprived of liberty for however brief a
period of time.
These questions arise in a context of one year's experience
with the information subpoena. One attorney reported
that of 100 cases in which he used the subpoena, 3 defendants
answered the questions, 4 defendants moved and 93 made no
response. The 93 cases were all brought to the court's
attention by orders to show cause and this meant that a judge
had to read the papers and sign the order in each and every
case. The volume raises questions regarding the effectiveness
of the information subpoena and the administrative burden for
the court. The Committee concluded that certain steps could
be taken to increase the likelihood of compliance with the
information subpoena.
First, the Committee decided that the information subpoena
itself, contained in Appendix XI-K to the Rules, should
contain words warning the debtor that failure to comply may
result in the debtor's arrest and incarceration. The warning
should be placed at the top of the subpoena in bold letters.
54
The form of the subpoena, as amended, is set forth in Section
III of this Report.
Second, the Committee decided that R. 6:7-2 should be
amended, by adding a new subparagraph (d), to specify that the
motion procedure, rather than the order to show cause, should
be used when a debtor fails to answer the subpoena and the
creditor seeks to enforce litigant's rights. The motion procedure
should also be used to enforce discovery orders in the
Committee's view. This will avoid the court's involvement at
the earliest stage of the enforcement procedure and defer such
involvement to a point, hopefully, after the debtor has
complied with the subpoena or discovery order and the involvement
is no longer required. The motion procedure in this
context requires a return day and this will be an exception to
the general motion practice under R. 6:3-3(c). The Committee
felt the motion should be returnable no sooner than 10 days
following service and filing so that there is adequate time
for the debtor to comply with the subpoena or order in
response to the notice of motion. Note that in the case of an
information subpoena, the debtor can avoid a court appearance
by furnishing answers to the subpoena at least 3 days before
the return date.
Third, the Committee believes that the current confusion
surrounding the enforcement procedure can be attenuated by
specifying in the rule the contents of the notice of motion,
55
the resulting order and the eventual arrest warrant and by
prescribing mandatory forms for each in the Appendices to the
Rules. Particularly, the new subparagraph (d) requires the
notice of motion to advise the debtor that if she or he fails
to appear on the return date of the motion, an order for his
or her arrest will be sought, together with an order to pay
the creditor's attorney fees in connection with the motion to
enforce litigant's rights. A new subparagraph (e) prescribes
the contents of an order, to be entered in the event that the
debtor fails to appear on the return date, for the debtor's
arrest, without further notice, if he or she fails to comply
with the discovery order or information subpoena within 10
days. A new subparagraph (f) provides for the issuance of an
arrest warrant in the event of further non-compliance, which
is to be executed between the hours of 7:30 a.m. and 3:00 p.m.
on a court day. For good cause shown, the warrant may be
executed at another time subject to such terms as the court
directs. Further, to ensure due process, if the motion and
order for arrest were served by mail, the arrest warrant can
be executed only at the address to which they were sent.
The proposed rule amendments follow. The mandatory forms
are set forth in Section III of this Report.
56
6:7-2.Orders for Discovery; Information Subpoenas
(a) Order for Discovery. The court may, upon the filing
by the judgment creditor or a successor in interest (if that
interest appears of record) of a petition verified by the
judgment creditor or the creditor's agent or attorney stating
the amount due on the judgment, make an order, upon good cause
shown, requiring any person who may possess information
concerning property of the judgment debtor to appear before
the attorney for the judgment creditor or any other person
authorized to administer an oath and make discovery under oath
concerning said property at a time and place therein specified.
The location specified shall be in the county where the
judgment debtor lives or works.
No more than one appearance of any such person may be
required without further court order. The time and place
specified in the order shall not be changed without the
written consent of the person to be deposed or upon further
order of the court.
(b) ...no change
(c) ...no change
(d) Enforcement by Motion. Proceedings to enforce
litigant's rights pursuant to R. 1:10-5, when a judgmentdebtor
fails to obey an order for discovery or an information
subpoena, shall be commenced by notice of motion supported by
affidavit or certification. The notice of motion and certifi
57
cation shall be in the form set forth in Appendices XI-L and
M to these Rules. The notice of motion shall contain a return
date and shall be served on the judgment-debtor and filed with
the clerk of the court not later than 10 days before the time
specified for the return date. The moving papers shall be
served on the judgment-debtor either in person or simultaneously
by regular and certified mail, return receipt
requested. The notice of motion shall state that the relief
sought will include an order:
(1) adjudicating that the judgment-debtor has violated
the litigant's rights of the judgment-creditor by failing to
comply with the order for discovery or information subpoena,
(2) compelling the judgment-debtor to immediately
furnish answers as required by the order for discovery or
information subpoena,
(3) directing that if the judgment-debtor fails to
appear in court on the return date or to furnish the required
answers, he or she shall be arrested and confined to the
county jail until he or she has complied with the order for
discovery or information subpoena,
(4) directing the judgment-debtor, if he or she fails to
appear in court on the return date, to pay the judgmentcreditor's
attorney fees, if any, in connection with the
motion to enforce litigant's rights, and
(5) granting such other relief as may be appropriate.
58
The notice of motion shall also state, in the case of an
information subpoena, that the court appearance may be avoided
by furnishing to the judgment-creditor written answers to the
information subpoena and questionnaire at least 3 days before
the return date.
(e) Order for Arrest. If the judgment-debtor has failed
to appear in court on the return date and the court enters an
order for his or her arrest, it shall be in the form set forth
in Appendix XI-N to these Rules and shall state that upon the
judgment-debtor's failure, within 10 days of the certified
date of mailing or personal service of the order, to comply
with the information subpoena or discovery order, the court
will issue a warrant for his or her arrest. The judgmentcreditor
shall serve a copy of the signed order upon the
judgment-debtor either personally or by mailing it simultaneously
by regular and certified mail, return receipt
requested. The date of mailing or personal service shall be
certified on the order.
(f) Warrant for Arrest. Upon the judgment-creditor's
certification, in the form set forth in Appendix XI-O to these
Rules, that a copy of the signed order for arrest to enforce
litigant's rights has been served upon the judgment-debtor as
provided in this rule, that 10 days have elapsed and that
there has been no compliance with the information subpoena or
discovery order, the court may issue an arrest warrant. The
59
warrant shall be in the form set forth in Appendix XI-P to
these Rules and, except for good cause shown and upon such
other terms as the court may direct, shall be executed by a
Special Civil Part Officer or Sheriff only between the hours
of 7:30 a.m. and 3:00 p.m. on a day when the court is in
session. If the notice of motion and order for arrest were
served on the judgment-debtor by mail, the warrant may be
executed only at the address to which they were sent. In all
cases the arrested judgment-debtor shall promptly be brought
before a judge of the Superior Court and released upon
compliance with the order for discovery or information
subpoena.
Note: Source -- R.R. 7:11-3(a)(b), 7:11-4. Paragraph
(a) amended June 29, 1973 to be effective September 10, 1973;
paragraph (a) amended July 17, 1975 to be effective September
8, 1975; amended July 21, 1980 to be effective September
8, 1980; caption amended, paragraph (a) caption and text
amended, paragraph (b) adopted and former paragraph (b)
amended and redesignated as paragraph (c) June 29, 1990 to be
effective September 4, 1990; paragraph (a) amended and
paragraphs (d)(e) and (f) adopted to be
effective .
101
F. Proposed Revision of Appendix XI-K--Information
Subpoena and Written Questions
The Committee proposes in Section I. M. of this Report to
amend R. 6:7-2 so as to improve the procedures for enforcing
discovery orders and information subpoenas. This effort also
involves the revision of the information subpoena itself so as
to advise judgment-debtors in large print at the top of the
form that failure to comply with the subpoena may result in
the debtor's arrest and incarceration. At the same time, the
Committee perceives a two-fold need to revise the written
questions attached to the subpoena.
First, the questions addressed to an individual judgmentdebtor
need to cover personalty in greater detail if there is
a possibility of later seeking to enforce a lien against
realty. Two New Jersey bankruptcy cases were brought to the
attention of the Committee in which levies on real estate were
successfully attacked because the interrogatories served on
the debtor did not inquire as to the debtor's cash on hand and
ownership of furniture, appliances and other household goods.
See Kellman v. Palese (In re Italiano), 66 Bankr. 468 (Bankr.
D. N.J. 1986) and Genz v. Hallmark Cards, Inc. (In re
Silverman), 6 Bankr. 991, 995-96 (D. N. J. 1980). The
additional questions proposed by the Committee would require
the judgment-debtor to list cash on hand and details regarding
other personal property, but only if the debtor owns real
102
estate and has cash and other personalty worth more than the
statutory exemption of $1,000.
Second, the present questions do not adequately inquire
about the finances and assets of judgment-debtors who happen
to be corporations, partnerships or other business entities.
The Committee proposes a set of 18 questions for this purpose,
which will be denominated "Questions for Business Entity."
The original questions, augmented as explained above, will be
called "Questions for Individuals." The judgment-creditor
will select the set that is appropriate for the particular
case.
The revised information subpoena, questions for
individual and questions for business entity follow. Together
they will comprise Appendix XI-K to the Rules.
103
APPENDIX XI-K
INFORMATION SUBPOENA AND WRITTEN QUESTIONS
IMPORTANT NOTICE - PLEASE READ CAREFULLY
FAILURE TO COMPLY WITH THIS INFORMATION SUBPOENA
MAY RESULT IN YOUR ARREST AND INCARCERATION
NAME:
ADDRESS:
TELEPHONE NO.:
Attorneys for:
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: SPECIAL CIVIL PART
Plaintiff, COUNTY
-vs- DOCKET NO.
Defendant, CIVIL ACTION
INFORMATION SUBPOENA
THE STATE OF NEW JERSEY, to:
Judgment has been entered against you in the Superior Court of
New Jersey, Law Division, Special Civil Part, County,
on , 19 , in the amount of $ plus costs,
of which $ together with interest from , 19 ,
remains due and unpaid.
Attached to this Information Subpoena is a list of questions
that court rules require you to answer within 14 days from the date
you receive this subpoena. If you do not answer the attached
questions within the time required, the opposing party may ask the
court to conduct a hearing in order to determine if you should be
held in contempt. You will be compelled to appear at the hearing
and explain your reasons for your failure to answer.
If this judgment has resulted from a default, you may have the
right to have this default judgment vacated by making an
appropriate motion to the court. Contact an attorney or the clerk
of the court for information on making such a motion. Even if you
dispute the judgment you must answer all of the attached questions.
104
You must answer each question giving complete answers,
attaching additional pages if necessary. False or misleading
answers may subject you to punishment by the court. However, you
need not provide information concerning the income and assets of
others living in your household unless you have a financial
interest in the assets or income. Be sure to sign and date your
answers and return them to the address in the upper left hand
corner within 14 days.
Dated: , 19
_______________________________
Attorney for Clerk
105
QUESTIONS FOR INDIVIDUALS
1. Full name ____________________________________________________
2. Address ______________________________________________________
3. Birthdate ____________________________________________________
4. Social Security # ____________________________________________
5. Driver's license # and expiration date _______________________
______________________________________________________________
6. Telephone # __________________________________________________
7. Full name and address of your employer _______________________
______________________________________________________________
(a) Your weekly salary: Gross Net __________
(b) If not presently employed, name and address of last
employer. _______________________________________________
_________________________________________________________
8. Is there currently a wage execution on your salary?
Yes No _____
9. List the names, addresses and account numbers of all bank
accounts on which your name appears.
10. If you receive money from any of the following sources, list
the amount, how often, and the name and address of the source:
Type Amount & Frequency Name & Address of Sources
Alimony
Loan Payments
Rental Income
Pensions
Bank Interest
Stock Dividends
106
11. Do you receive Social Security benefits?
Yes No _____
12. Do you own the property where you reside?
Yes No If yes, state the following:
(a) Name of the owner or owners _____________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of mortgage holder __________________________
______________________________________________________________
(e)Balance due on mortgage ________________________________________
13.Do you own any other real estate?
Yes No If yes, state the following
for each property:
(a) Address of property _____________________________________
(b) Date property was purchased _____________________________
(c) Purchase price __________________________________________
(d) Name and address of all owners________________________________
______________________________________________________________
(e) Name and address of mortgage holder __________________________
______________________________________________________________
(f) Balance due on mortgage ______________________________________
______________________________________________________________
(g) Names and address of all tenants and monthly rental paid
by each tenant _______________________________________________
______________________________________________________________
107
14. If you answered "yes" to either question 12 or 13, does the
present value of your personal property, which includes
automobiles, furniture, appliances, stocks, bonds, and cash on
hand, exceed $1,000?
Yes No If the answer is "yes,"
you must itemize all
personal property owned by
you.
Cash on hand: $ _______
Other personal property: (Set forth make, model and serial
number. If financed, give name and address of party to whom
payments are made).
If Financed
Date Purchase Balance Still Present
Item Purchased Price Due Value
15. Do you own a motor vehicle?
Yes No If yes, state the
following for each vehicle owned:
(a) Make, model and year of motor vehicle
(b) If there is a lien on the vehicle, state the name and
address of the lienholder and the amount due to the
lienholder
(c) License plate #
(d) Vehicle identification #
16. Do you own a business?
Yes No If Yes, state the
following:
108
(a) Name and address of the business ________________________
_________________________________________________________
(b) Is the business a Corporation , sole proprietorship
_____ or partnership ?
(c) The name and address of all stockholders, officers and/or
partners ________________________________________________
_________________________________________________________
(d) The amount of income received by you from the business
during the last twelve months ___________________________
_________________________________________________________
17. Set forth all other judgments that you are aware of that have
been entered against you and include:
Creditor's Creditor's Amount Name of
Name Attorney Due Court Docket #
I hereby certify that the foregoing statements made by me are
true. I am aware that if any of the foregoing statements made by
me are willfully false, I am subject to punishment.
Date: ____________________________________
109
QUESTIONS FOR BUSINESS ENTITY
1. Name of business including all trade names. __________________
______________________________________________________________
2. Addresses of all business locations. _________________________
______________________________________________________________
3. If the judgment-debtor is a corporation, the names and
addresses of all stockholders, officers and directors.
______________________________________________________________
______________________________________________________________
______________________________________________________________
4. If a partnership, list the names and addresses of all
partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
5. If a limited partnership, list the names and addresses of all
general partners.
______________________________________________________________
______________________________________________________________
______________________________________________________________
6. Set forth in detail the name, address and telephone number of
all businesses in which the principals of the judgment-debtor
now have an interest and set forth the nature of the interest.
______________________________________________________________
______________________________________________________________
7. For all bank accounts of the judgment-debtor business entity,
list the name of the bank, the bank's address, the account
number and the name in which the account is held.
______________________________________________________________
______________________________________________________________
110
8. Specifically state the present location of all books and
records of the business, including checkbooks. _______________
______________________________________________________________
9. State the name and address of the person, persons, or entities
who prepare, maintain and/or control the business records and
checkbooks. __________________________________________________
______________________________________________________________
10. List all physical assets of the business and their location.
If any asset is subject to a lien, state the name and address
of the lienholder and the amount due on the lien.
______________________________________________________________
______________________________________________________________
______________________________________________________________
11. Does the business own any real estate? Yes______ No ______
If yes, state the following for each property:
(a) Name(s) in which property is owned ______________________
(b) Address of property _____________________________________
(c) Date property was purchased _____________________________
(d) Purchase price __________________________________________
(e) Name and address of mortgage holder ____________________
________________________________________________________
(f) Balance due on mortgage _________________________________
(g) The names and addresses of all tenants and monthly
rentals paid by each tenant.
NAME AND ADDRESS OF TENANT MONTHLY RENTAL
111
12. List all motor vehicles owned by the business, stating the
following for each vehicle:
(a) Make, model and year ___________________________________
________________________________________________________
(b) License plate number ___________________________________
(c) Vehicle identification number __________________________
(d) If there is a lien on the vehicle, the name and address
of the lienholder and the amount due on the lien
________________________________________________________
________________________________________________________
13. List all accounts receivable due to the business, stating the
name, address and amount due on each receivable.
NAME AND ADDRESS AMOUNT DUE
14. For any transfer of business assets that has occurred within
six months from the date of this subpoena, specifically
identify:
(a) The nature of the asset _________________________________
_________________________________________________________
(b) The date of transfer ____________________________________
(c) Name and address of the person to whom the asset was
transferred _____________________________________________
_________________________________________________________
(d) The consideration paid for the asset and the form in
which it was paid (check, cash, etc.) ___________________
_________________________________________________________
112
(e) Explain in detail what happened to the consideration paid
for the asset ___________________________________________
_______________________________________________________
15. If the business is alleged to be no longer active, set forth:
(a) The date of cessation ___________________________________
(b) All assets as of the date of cessation __________________
_________________________________________________________
(c) The present location of those assets ____________________
_________________________________________________________
(d) If the assets were sold or transferred, set forth:
(1) The nature of the assets __________________________
___________________________________________________
(2) Date of transfer __________________________________
(3) Name and address of the person to whom the assets
were transferred __________________________________
___________________________________________________
(4 )The consideration paid for the assets and the form
in which it was paid ______________________________
___________________________________________________
(5) Explain in detail what happened to the consideration
paid for the assets _________________________
___________________________________________________
16. Set forth all other judgments that you are aware of that have
been entered against the business and include the following:
Creditor's Creditor's Amount Name of Docket
Name Attorney Due Court Number
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17. For all litigation in which the business is presently
involved, state:
(a) Date litigation commenced _______________________________
(b) Name of party who started the litigation ________________
_________________________________________________________
(c) Nature of the action ____________________________________
_________________________________________________________
(d) Names of all parties and the names, addresses and telephone
numbers of their attorneys ________________________
_________________________________________________________
_________________________________________________________
(e) Trial date ______________________________________________
(f) Status of case __________________________________________
(g) Name of the court and docket number _____________________
_________________________________________________________
18. State the name, address and position of the person answering
these questions. _____________________________________________
______________________________________________________________
I hereby certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: __________________ ____________________________________
114
G. Proposed Appendices XI-L, M, N, O, P--Mandatory
Forms for Enforcing Discovery Orders and Information
Subpoenas
As explained in Sections I. M. and III. F. of this
Report, the Committee proposes to amend R. 6:7-2 and revise
the information subpoena so as to improve the procedures for
enforcing both the subpoena and orders for discovery. The
Committee is recommending that a motion procedure be
prescribed for this purpose, rather than an order to show
cause procedure, and the proposed amendments to R. 6:7-2 refer
to forms which the Committee feels should be mandatory. The
amendments to R. 6:7-2 and the forms are discussed in detail
in Section I. M. of this Report. The forms would be set forth
in the Appendices to the Rules as follows:
Appendix XI-L Notice of Motion for Order Enforcing
Litigant's Rights
Appendix XI-M Certification In Support of Motion for
Order Enforcing Litigants Rights
Appendix XI-N Order for Arrest
Appendix XI-O Certification In Support of Application
for Arrest Warrant
Appendix XI-P Warrant for Arrest
The proposed appendices follow.
115
APPENDIX XI-L
NOTICE OF MOTION FOR ORDER ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Notice of Motion for Order
, Defendant Enforcing Litigant's Rights
PLEASE TAKE NOTICE that on ____________, 19__ at ______ __.m.,
I will apply to the above-named court, located at ________________
________________________________________, New Jersey, for an Order:
(1) Adjudicating that you have violated the litigant's rights of
the plaintiff by failure to comply with the (check one) 􀂆
order for discovery, 􀂆 information subpoena served upon you;
(2) Compelling you to immediately furnish answers as required by
the (check one) 􀂆 order for discovery, 􀂆 information subpoena;
(3) Directing that, if you fail to appear in court on the date
written above, you shall be arrested by an Officer of the
Special Civil Part or the Sheriff and confined in the county
jail until you comply with the (check one) 􀂆 order for
discovery, 􀂆 information subpoena;
(4) Directing that, if you fail to appear in court on the date
written above, you shall pay the plaintiff's attorney fees in
connection with this motion;
(5) Granting such other relief as may be appropriate.
If you have been served with an information subpoena, you may avoid
having to appear in court by sending written answers to the questions
attached to the information subpoena to me no later than
three (3) days before the court date.
I will rely on the certification attached hereto.
Date: _______________________ __________________________
Attorney for Plaintiff or
Plaintiff, Pro Se
116
APPENDIX XI-M
CERTIFICATION IN SUPPORT OF MOTION FOR ORDER
ENFORCING LITIGANT'S RIGHTS
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
Certification In Support of Motion
, Defendant for Order Enforcing Litigant's Rights
The following certification is made in support of plaintiff's
motion for an order enforcing litigant's rights:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
􀂆 a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
􀂆 b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
117
4. _______________________ has failed to comply with (check one)
􀂆 the order, 􀂆 the information subpoena.
5. I request that the Court enter an order enforcing litigant's
rights.
6. On _______________, 19___, I served copies of this motion and
certification on ___________________ (check one) 􀂆 personally,
􀂆 by sending them simultaneously by regular and certified
mail, return receipt requested.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: _________________ _______________________________
118
APPENDIX XI-N
ORDER FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
ORDER FOR ARREST
, Defendant
This matter being opened to the court by ____________________
on plaintiff's motion for an order enforcing litigant's rights and
the defendant having failed to appear on the return date and having
failed to comply with the (check one) 􀂆 order for discovery previously
entered in this case, 􀂆 information subpoena;
It is on the ____________ day of ____________, 19___, ORDERED
and adjudged:
1. Defendant _______________ has violated plaintiff's rights as a
litigant;
2. Defendant _______________ shall immediately furnish answers as
required by the (check one) 􀂆 order for discovery, 􀂆 information
subpoena
3. If defendant _______________ fails to comply with the (check
one) 􀂆 order for discovery, 􀂆 information subpoena within ten
(10) days of the certified date of personal service or mailing
of this order, a warrant for the defendant's arrest shall
issue out of this Court without further notice;
____________________________________
, J.S.C.
PROOF OF SERVICE
119
On ____________, 19___, I served a true copy of this Order on
defendant _______________ (check one) 􀂆 personally, 􀂆 by sending
it simultaneously by regular and certified mail, return receipt
requested to:
(Set forth address) _______________________________________________
________________________________________________
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
wilfully false, I am subject to punishment.
Date: _______________ ____________________________________
120
APPENDIX XI-O
CERTIFICATION IN SUPPORT OF APPLICATION
FOR ARREST WARRANT
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
COUNTY
Telephone No.
Docket No.
, Plaintiff CIVIL ACTION
Certification in Support of
v. Application for Arrest Warrant
, Defendant
The following certification is made in support of plaintiff's
application for an arrest warrant:
1. I am the plaintiff or plaintiff's attorney in this matter.
2. On _____________, 19__, plaintiff obtained a judgment against
the defendant ___________________________________________ for
$ _______________ damages, plus costs.
3. (Check applicable box below)
􀂆 a. On _______________, 19___, an Order was entered by
this Court ordering defendant _____________________
to appear at ______________________________________
on _______________, 19___, at ______ __.m. and make
discovery on oath as to the defendant's property and
on _______________, 19___, a copy of the Order was
served upon ___________________________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by ordinary and certified mail, return
receipt requested to _____________________'s last
known address.
􀂆 b. On _______________, 19___, I served an information
subpoena and attached questions as permitted by
Court Rules on the defendant _____________________
(check one) 􀂆 personally, 􀂆 by sending it simultaneously
by regular and certified mail, return
receipt requested to defendant's last known address.
121
4. _______________________ has failed to comply with (check one)
􀂆 the order, 􀂆 the information subpoena.
5. On , 19 , the Court entered an Order for Arrest
when defendant failed to appear on the return day of my motion
for order enforcing litigant's rights.
6. On , 19 , I served a true copy of the Order for
Arrest on (check one) 􀂆 personally, 􀂆 by
sending it simultaneously by regular and certified mail,
return receipt requested.
7. Ten days have passed since I served a copy of the Order for
Arrest on defendant and defendant has not complied with the
(check one) 􀂆 information subpoena, 􀂆 order for discovery.
8. I request that the Court issue a warrant for the arrest of
defendant.
I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.
Date: ____________________________________
122
APPENDIX XI-P
WARRANT FOR ARREST
Name: SUPERIOR COURT OF NEW JERSEY
Address: LAW DIVISION, SPECIAL CIVIL PART
Telephone No. County
Docket No. _____________________
, Plaintiff
CIVIL ACTION
v.
WARRANT FOR ARREST
, Defendant
TO: A Court Officer of the Special Civil Part or the Sheriff of
________________________ County
You are hereby commanded to arrest _________________________,
at (check one) 􀂆 any location, 􀂆 the address set forth in the
annexed order for arrest between the hours of 7:30 a.m. and
3:00 p.m. on a day when the court is in session, and bring him or
her forthwith before a Judge of the Superior Court to await the
further order of the Court in this matter.
Date: ________________ WITNESS: _______________________________
Judge of the Superior Court
_______________________________
Clerk of the Special Civil Part