FORD MOTOR CREDIT COMPANY, LLC v. Calandra
v.
SHARON CALANDRA a/k/a SHARON DENGELEGI n/k/a SHARON IYANNA, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
William J. Pinilis argued the cause for appellant (PinilisHalpern, LLP, attorneys; Mr. Pinilis, of counsel and on the briefs; Jeffrey S. Mandel, on the briefs).
Valerie S. Sanders (Sutherland Asbill & Brennan LLP) of the Georgia bar, admitted pro hac vice, argued the cause for respondent (Wong Fleming, PC, and Ms. Sanders, attorneys for respondent; Daniel C. Fleming; Thomas M. Byrne (Sutherland Asbill & Brennan LLP) of the Georgia bar, admitted pro hac vice; and Ms. Sanders, on the brief).
Before Judges Axelrad, R. B. Coleman and J. N. Harris.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
Defendant Sharon Calandra appeals, on behalf of herself and a class of similarly situated consumers, from an order entered by the Law Division on a motion for reconsideration, which granted summary judgment in favor of defendant, Ford Motor Credit Company, LLC (Ford) and dismissed Calandra's counterclaims with prejudice, and also denied Calandra's motion for class certification. We affirm.
I.
Ford filed a Special Civil Part complaint against Calandra on December 26, 2007, seeking to recover $9198.04 for breach of her automobile lease agreement. Calandra filed an answer and class action counterclaim, asserting violations of the Consumer Leasing Act (CLA), 15 U.S.C.A. §§ 1667a and 1667b (Count I); the Uniform Commercial Code (UCC), N.J.S.A. 12A:2A-504 (Count II); the New Jersey Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -20 (Count III); the New Jersey Truth-In-Consumer Contract, Warranty and Notice Act (TCCWNA), N.J.S.A. 56:12-14 to -18 (Count IV); and the New Jersey Plain Language Act (PLA), N.J.S.A. 56:12-1 to -13 (Count V). On March 11, 2008, the matter was transferred to the Law Division. Discovery proceeded through 2009.
Calandra filed a motion for class certification in March 2010. While the motion was pending, Ford moved for summary judgment on its claim for the amount due on the debt and for dismissal of Calandra's counterclaims. On or about April 19, 2010, Calandra filed opposition and moved for partial summary judgment on the issue of Ford's liability for the statutory violations asserted in her counterclaims. Following oral argument, Judge James Hyland rendered an oral decision on June 22, 2010, memorialized in an order of that date, granting Ford's motion for summary judgment dismissing the second count of Calandra's counterclaim (the UCC claim) only, and denying Calandra's motion for partial summary judgment. By another order of the same date, the judge certified the matter as a class action with a specified subclass and designated Calandra as the representative on behalf of the class and subclass.
Ford moved for reconsideration. Calandra filed opposition and a cross-motion to compel discovery. Judge Hyland heard oral argument on August 30, 2010. On September 27, 2010, he issued a written opinion and entered an order granting Ford's motion for reconsideration, granting Ford's motion for summary judgment in its entirety and dismissing all of Calandra's counterclaims with prejudice, and entering judgment for Ford in the amount of $8125.35, plus interest and attorney's fees. This appeal ensued.
II.
The underlying facts are undisputed and are derived from the pleadings and submissions filed with the motions. These included the certification of Steve Groene, Ford's Remarketing, Sales, Planning, and Distribution Manager; and the deposition testimony of Calandra, Robert Ragusa, an employee of Repossession Specialists, Inc. (RSI), Scott Gillen, the general manager of Open Road Mazda, Damisa Anderson, former team leader for Ford's repossession processes department, and David Nicosia, another Ford representative.[1]
On May 12, 2006, Calandra leased a new 2006 MazdaSpeed6 (the vehicle) from Ryan Motors, d/b/a Open Road Mazda, a dealership in East Brunswick. The lease valued the vehicle at $30,557.08, and the adjusted capitalized cost was listed at $29,517.08. Calandra agreed to make twenty-four monthly payments of $435.00. The lease contained the following default provision in paragraph eleven:
DEFAULT You will be in default if (a) You fail to make any payment when due . . . or
(e) You fail to keep any other agreement in this lease.
If you are in default, and do not cure the default where allowed by law, Mazda Credit may cancel this lease, take back the Vehicle and sell it at a public or private sale. You also give Mazda Credit the right to go on Your property to peacefully retake the Vehicle. Even if Mazda Credit retakes the Vehicle, You must still pay at once: (a) the difference, if any, between the Unpaid Adjusted Capitalized Cost and the value which could be realized at the sale of the Vehicle; plus (b) all other amounts then due under this lease. The value which could be realized at the sale of the Vehicle at your option will be: (a) the amount received by Mazda Credit upon the sale of the Vehicle at wholesale; or (b) as determined by a professional appraiser obtained at Your expense within 10 days from default, from an independent third party agreeable to Mazda Credit. You must also pay all expenses, including reasonable attorney's fees, payable by Mazda Credit to obtain, hold and sell the Vehicle, collect amounts due and enforce the Holder's rights under this lease. You authorize Mazda Credit to cancel Your insurance and apply any proceeds to your obligation.
[(Emphasis added).]
Ryan Motors assigned its rights under the lease to Ford and sold the vehicle to it.
Calandra missed several payments within the first six months of the lease and in March 2007, she returned the vehicle to the dealership. By that time, Calandra had missed four monthly payments; she should have made eleven monthly payments for a total of $4785, but had only paid $3045, and was thus in default under her lease.
Ford hired RSI, a company that contracts with banks and finance companies, to transport the vehicle from the dealership to National Automobile Dealers Exchange (NADE) in Bordentown, an auction location for Manheim Auctions, Inc. (Manheim), where the vehicle was to be sold. Manheim is one of the independent auction houses nationwide with whom Ford contracts for the storing, repairing, appearance reconditioning, safeguarding, and auction sale of used vehicles owned by Ford. RSI charged Ford $175 for transporting the vehicle, which was a standard rate they negotiated for repossessions in which the lessee voluntarily surrendered the vehicle, as opposed to a higher rate for "involuntary" repossessions.
Ford authorized NADE to repair a dent in the right rear door of the vehicle for $45; put two gallons of gas in the vehicle so it could be driven around the auction floor and from the auction premises after sale, costing $7; and perform an "appearance reconditioning" of the vehicle to maximize its sales price, consisting of a complete detail, including steam cleaning of the engine, degreasing, shampooing the carpets, cleaning the interior, and polishing and waxing, at the standard negotiated rate of $72.50. NADE also charged Ford the standard negotiated rate of $85 for selling the vehicle at open auction. The expenses Ford incurred to transport, recondition and sell the vehicle at auction totaled $384.50. The vehicle sold at auction for $19,200. Calandra's debt was credited with the gross sales proceeds ($19,200), minus the above described expenses incurred by Ford to sell the vehicle ($384.50).[2]
III.
In its June 22, 2010 decision, the court concluded Calandra's CLA claim was not ripe for summary judgment, noting class discovery was the only discovery that had taken place. According to the court, Ford did "not deny treating non-defaulting lessees differently than defaulting lessees" and "[t]here may be legitimate and justifiable . . . business reasons for [Ford's] practice." The court believed the record had not been adequately developed on that issue and merits discovery was still needed. The court also denied summary judgment to both parties, with the exception of dismissing the second count of Calandra's counterclaim asserting a UCC violation. Regarding that claim, the court noted the contract only required defaulting lessees to pay costs actually incurred by the lessor and did not find that to be "disproportionate or unfair." Class certification was also granted.
Ford moved for reconsideration of denial of summary judgment and grant of class certification. It urged that Calandra had a full opportunity for discovery on her individual counterclaims and availed herself of it, representing it produced its file for her lease in May 2008, she obtained documents relating to her specific transaction from the auction house, and she conducted depositions of Ford representatives, the automobile dealer, and the repossession agent. She "also received extensive data on the repossession charges passed through to more than 55,000 potential class members" and "[d]iscovery of unnamed class members was limited by the [c]ourt only to protect against needless disclosure of personal identifying information." Ford further emphasized that Calandra pointed out no discovery that was needed or any reason why she did not take such discovery during the pendency of the litigation.
Ford pointed out that the court's granting of summary judgment dismissing Calandra's UCC counterclaim was inconsistent with its denial of the motion as to the CLA claim because both claims turned on the question of whether the $384.50 charge to Calandra for the expenses incurred to sell the vehicle was reasonable. See N.J.S.A. 12A:2A-504(1) ("Damages payable by either party for default . . . may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default . . . ."); 15 U.S.C.A. § 1667b(b) ("Penalties or other charges for . . . default . . . may be specified in the lease but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the . . . default. . . .").
According to Ford, it was undisputed the charges were negotiated with vendors by Ford at arm's length and Ford paid the charges to third parties and made no profit on them. Moreover, the case involved a default, not a voluntary early termination, and Calandra was not charged a fee or penalty. Rather, Ford's out-of-pocket expenses were simply passed through to Calandra as authorized by the default provision of the lease obligating her to "pay all expenses . . . payable by [Ford] to obtain, hold and sell the Vehicle . . . ." Ford thus argued on reconsideration that whether these third party, pass-through collection charges are unreasonable entails only "an examination of the nature and amount of the charges under the particular circumstances, not a judicial examination of [Ford's] overall pricing, profit and cost structure."
Ford further argued that "reasonableness" is also the dispositive question presented by Calandra's remaining alleged New Jersey statutory violations so that dismissal of the CLA claims also disposes of the other three counterclaims. Furthermore, class certification should be denied as moot.
Calandra filed opposition, primarily arguing reconsideration was inappropriate, and responded with a cross-motion for discovery of materials relating to the class. Following extensive oral argument on August 30, 2010, Judge Hyland issued a written decision on September 27, 2010. The judge articulated Calandra's substantive claim under the CLA and UCC that the passing through of actual, out-of-pocket costs to her is an "unreasonable penalty" in violation of 15 U.S.C.A. § 1667b(b) and N.J.S.A. 12A:2A-504 "because Ford does not charge the same costs to non-defaulting lessees." He noted that reasonable penalties or damages payable upon default are permissible under both the CLA and UCC, quoting both statutes.
The judge then rejected Calandra's argument that Ford collected "super damages" by imposing the costs of transporting and preparing the vehicle for auction on a defaulting lessee, explaining:
While Calandra did voluntarily return her vehicle after defaulting on her lease, Ford was still forced to incur further expenses. In fulfilling its obligation to mitigate the damages caused by the default, Ford had to repossess the vehicle in a commercially reasonable manner. In doing so, it incurred fees for transportation, gas, and auctioning. Charging penalties for default is permissible under the Federal Consumer Leasing Act, 15 U.S.C. [§] 1667[b](b), as long as they are "reasonable in the light of the anticipated or actual harm." The fees Calandra complains of satisfy this reasonableness requirement, because Ford is merely making itself whole for the actual, out-of-pocket costs that it is forced to incur before it can credit a defaulting lessee any proceeds it receives at auction. Calandra's claim under N.J.S.A. 12A:2A-504 suffers from the same defect.
The judge also rejected Calandra's argument that "the imposition of a selling expense upon a breaching lessor is unreasonable under the [CLA], if the lessor does not assess the same charge upon scheduled termination to a non-defaulting lessee," noting that 15 U.S.C.A. § 1667b expressly permits reasonable penalties for defaulting lessees. The judge further distinguished the unpublished 1992 federal case relied on by Calandra, noting discovery clearly established Calandra was only charged costs Ford "incurred as a result of her defaulting on the lease agreement." Moreover, the judge was satisfied there was nothing in the record to indicate those fees were unreasonable.
Judge Hyland was also convinced paragraph eleven of the lease (the default provision requiring the payment of expenses "to obtain, hold and sell the Vehicle") contained language sufficient to place Calandra on notice she would be liable for the transportation, gas, and auctioning fees at issue in this appeal within the plain language requirement under 15 U.S.C.A. 1667(a) and those promulgated in Regulation M, 12 C.F.R. § 213.4(q).[3] Accordingly, the judge found Calandra could not sustain her claim under the PLA. See N.J.S.A. 56:12-2 ("A consumer contract . . . shall be written in a simple, clear, understandable and easily readable way."). Finally, the judge disposed of Calandra's claims under the CFA and TCCWNA, finding Calandra failed to establish a prima facie showing of any unlawful conduct or violation of her rights. Judge Hyland explained: Calandra entered into a lease that clearly provided that she would [be] responsible for any expenses Ford incurred in reselling her vehicle in the event she defaulted. Since these fees attempt to do nothing more than make Ford whole by passing through actual, out-of-pocket costs, it cannot be said that they constitute unreasonable charges.
Accordingly, by memorializing orders, summary judgment was entered in favor of Ford, all of Calandra's counterclaims were dismissed, and Calandra's motion for class certification and to compel discovery were denied as moot.
IV.
On appeal, Calandra insists the court "inexplicably" reversed its earlier findings and that summary judgment was premature in light of the early stage of discovery. In particular, she argues that "summary judgment is inappropriate because Ford's early termination penalties were not caused by the breach of the lease and the record was insufficient for the court to conclude Ford's charges, as a matter of law, are reasonable." It appears, though, she actually is renewing her arguments made to Judge Hyland in support of her motion for summary judgment on liability for the statutory violations asserted in her counterclaims. With regard to the CLA and UCC, Calandra urges the $384.50 sales expenses are, in fact, penalties that are not related to the breach of the lease and are not a reasonable early termination charge. She reasons that Ford's damage calculation formula already makes it whole and because Ford incurs the same expenses to prepare the vehicle for sale when a lessee fully performs, the $384.50 charged to her, and presumably to other members of the class, is not "caused by" her and others' default. Among other federal cases, including unpublished ones, Calandra relies on Heller Financial Inc. v. Burry, 633 F. Supp. 706, 707 n.2 (N.D. Ill. 1986), holding that charges for early termination can be reasonable methods under the CLA to ensure that a lessor receives the full value of its bargained for consideration in the event of a breach by a lessee; however, to the extent such charges unreasonably exceed the lessor's actual damages, such charges are an impermissible penalty.
Calandra further argues the default provision in paragraph eleven of the lease that allows Ford to collect "all expenses payable by [Ford] to obtain, hold and sell the Vehicle," violated the CLA's disclosure requirements, 15 U.S.C.A. § 1667a. Specifically, Calandra asserts that Ford "did not disclose the amount of the transport fee ($175) and/or the auction fee ($85) that Ford charges in addition to its recovery under the formula, even though the charges are fixed costs, which Ford knows (or should know) at the inception of the lease." She relies on two provisions in the CLA. 15 U.S.C.A. § 1667a(a)(4) states that a lessor shall disclose the "amount of other charges payable by the lessee not included in the periodic payments [and] a description of the charges . . . ." U.S.C.A. § 1667(a)(11) requires a "statement of the conditions under which the lessee or lessor may terminate the lease prior to the end of the term and the amount or method of determining any penalty or other charge for delinquency, default, late payments, or early termination."
When reviewing a grant of summary judgment, we employ the same standards used by the motion judge under Rule 4:46. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). First, we determine whether the moving party has demonstrated that there were no genuine disputes as to material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We accord no deference to the motion judge's conclusions on issues of law, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010); Manalapan Realty, L.P., v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), which we review de novo. Dep't of Envtl. Prot. v. Kafil, 395 N.J. Super. 597, 601 (App. Div. 2007).
Based on our review of the record and applicable law, and after hearing oral argument, we are satisfied Judge Hyland appropriately reconsidered his initial determination in accordance with Rule 4:49-2 and Cummings v. Bahr, 295 N.J. Super. 374, 384-85 (App. Div. 1996), and that summary judgment was appropriately entered in favor of Ford dismissing all of Calandra's counterclaims. Ford more than amply highlighted on reconsideration the copious discovery that had been provided to Calandra pertaining to the relevant legal issue before the court — the nature and reasonableness of the charges and their disclosure under the default provision of the lease. Other than the bald assertion that additional discovery was needed after the class was certified, Calandra has cited to no material discovery issues that are outstanding and which would preclude summary judgment. To the contrary, it appears to us that the material facts regarding Calandra's transaction are not in dispute and thus there was no reason to delay adjudication of this matter.
We are also satisfied Judge Hyland correctly concluded as a matter of law that Calandra's claims respecting the CLA were without merit and amply explained the reasons for his ruling. Contrary to Calandra's repeated assertion, the challenged expenses are not a penalty. It is well settled the CLA allows charges for "delinquency, default and early termination" to the extent they are "reasonable in the light of the anticipated or actual harm caused by the delinquency, default, or early termination, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy." 15 U.S.C.A. § 1667b(b). As the trial court found, the nominal expenses charged to Calandra to transport the vehicle to auction and prepare it for sale were reasonable because Ford was "merely making itself whole for the actual, out-of-pocket costs" it was forced to incur to maximize sales proceeds that would ultimately be credited to the defaulting lessee.
Further, the implementing regulations expressly contemplate the imposition of "disposition charges" at the termination of a lease. Pursuant to 15 U.S.C.A. § 1667f, the Federal Reserve Board has issued regulations, referred to as "Regulation M," 12 C.F.R. Part 213. The Federal Reserve Board's official staff commentary to Regulation M states that the "regulation does not preclude a lessor from recovering other charges from the lessee at the end of the lease term. Examples of such charges include: i. Disposition charges[,] ii. Excess mileage charges[,] and iii. Late payment and default charges." 12 C.F.R. Part 213, Supp. I § 213.4(m)(2)-3.
Calandra's assertion that a lessor may not treat a defaulting lessee differently than a lessee who fully performs his or her obligation is unsupported by the law. Simply because a lessor incurs these same costs when a lessee fully performs and returns the vehicle at the end of the lease term does not mean that these costs are not "caused by" a lessor's default. A lessee who fully performs owes the lessor no further obligation. Once the vehicle is returned by a performing lessee, the lessor can do whatever it desires with the vehicle. In other words, Ford can make a business decision not to pass on the auction charges to a performing lessee. Calandra, however, owed Ford a substantial amount of money when she defaulted, and Ford was forced to sell the vehicle in order to mitigate damages and recover a portion of this debt.
To protect itself in that situation, Ford clearly discloses in paragraph eleven of its contract that in addition to a defaulting lessee being required to return the vehicle to be sold at a public or private sale, such lessee will not only be obligated to pay the difference "between the Unpaid Adjusted Capitalized Cost and the value which could be realized at the sale of the Vehicle[] plus [] all other amounts then due under this lease" but "must also pay all expenses . . . payable by [Ford] to obtain, hold and sell the Vehicle . . . ." The additional expenses are simply part of the formula used to calculate the obligation of a defaulting lessee. Ford does not receive more than it is entitled to under the lease. Moreover, it is undisputed that Ford receives no portion of the challenged auction expenses but, rather, they are contractual obligations to third parties.
Calandra's assertion that Ford's default provision violated the CLA's disclosure requirements, 15 U.S.C.A. § 1667a, because it did not disclose the exact numerical costs, is equally without merit. The official staff commentary to Regulation M reads as follows:
The automatic imposition of collection costs or attorney fees upon default must be disclosed under § 213.4(q). Collection costs or attorney fees that are not imposed automatically, but are contingent upon expenditures in conjunction with a collection proceeding or upon the employment of an attorney to effect collection, need not be disclosed.
[12 C.F.R. § 213, Supp. I § 213.4(q)-1 (emphasis added).]
The United States Supreme Court has held that Federal Reserve Board staff opinions should be dispositive unless they are "demonstrably irrational." Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565, 100 S. Ct. 790, 797, 63 L. Ed. 2d 22, 31 (1980) (noting deference due to the Federal Reserve Board official staff commentary when Congress delegated implementation of the Truth in Lending Act to the Board).
As Judge Hyland properly found, the language in the default provision "was sufficient to place Calandra on notice that upon default she would be charged all expenses payable by Ford to obtain, hold, and sell the Vehicle. The transportation, gas, and auctioning fees at issue here fall within" the lease agreement's disclosure. Aside from the fact the staff commentary expressly states this is not required, Ford could not have known at the inception of the lease the exact costs it would incur to sell the vehicle upon a default that may never happen. The $45 charge to repair the dent in the door was clearly not foreseeable. As Ragusa testified, if he had to perform an involuntary repossession, the charge would have been greater. Other evidence demonstrated that the $85 auction fee was the contractual amount for the Bordentown location and the pricing would have been different elsewhere. Thus, although Ford placed potential defaulting lessees on notice of the general nature of the expenses for which they would be charged, it could not itemize the exact amounts as such charges were contingent and unknowable.
Calandra next urges, perfunctorily, that if summary judgment is improper under the CLA, it is likewise improper under the UCC because a defaulting lessee may be charged a "penalty" akin to liquidated damages only if it is reasonable in light of the anticipated harm caused by the default. N.J.S.A. 12A:2A-504. Calandra reiterates that "the victim of a breach cannot be placed in a better position than it would have occupied if the contract had been performed." In re Montgomery Ward Holding Co., 326 F.3d 383, 388 (3d Cir. 2003).
Calandra's UCC argument suffers from the same deficiencies as her CLA claim. Paragraph eleven is not a liquidated damages provision; it is a default provision. The debt does not include fees set in advance but rather actual, out-of-pocket expenses actually incurred by Ford to transport the vehicle and prepare it for sale. Ford does not receive a windfall by the reimbursement of these expenses.
Moreover, once Calandra defaulted, Ford had the right to take possession of the vehicle and dispose of it in a commercially reasonable manner. See N.J.S.A. 12A:2A-525; -527. N.J.S.A. 12A:2A-528 allows Ford to recover from a defaulting lessee "any incidental damages allowed under [N.J.S.A.] 12A:2A-530, less expenses saved in consequence of the lessee's default." A lessor's incidental damages include "any commercially reasonable charges, expenses, or commissions incurred in . . . the transportation, care and custody of goods after the lessee's default, in connection with return or disposition of the goods, or otherwise resulting from the default." Calandra does not dispute the challenged charges were reasonable in amount.
Calandra argues that summary judgment in favor of Ford on the CFA claim cannot be granted on the facts adduced in the "limited discovery." However, she submits, if after the completion of discovery she establishes a violation of the CLA and the UCC, she also has a triable issue on the CFA claim as to "whether it is an unconscionable commercial practice to charge the penalties to breaching lessees."
The relevant portion of the CFA reads as follows:
The act, use or employment by any person of any unconscionable commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing, concealment, suppression, or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person has in fact been misled, deceived or damaged thereby, is declared to be an unlawful practice; provided, however, that nothing herein contained shall apply to the owner or publisher of newspapers, magazines, publications or printed matter wherein such advertisement appears, or to the owner or operator of a radio or television station which disseminates such advertisement when the owner, publisher, or operator has no knowledge of the intent, design or purpose of the advertiser.
[N.J.S.A. 56:8-2.]
Three elements must be established to prevail on a CFA claim: 1) unlawful conduct by defendant; 2) an ascertainable loss by plaintiff; and 3) a causal relationship between the unlawful conduct and the ascertainable loss. Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 557 (2009).
Calandra does not identify any unlawful conduct on Ford's part. Nor does she provide any explanation of what information she plans to elicit through additional discovery or how that information will affect the outcome of her case. "A party opposing summary judgment on the ground that more discovery is needed must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). The only basis for Calandra's underlying claim of statutory violations is the $384.50 charged to transport her vehicle and prepare it for auction. She does not dispute that Ford actually incurred these costs or that they were reasonable in amount. It is unclear what additional relevant information could possibly be uncovered through additional discovery.
In any event, Ford has not engaged in any unlawful conduct. It merely charged Calandra for the actual, out-of-pocket expenses it incurred in selling the vehicle to recoup a portion of the debt owed by the defaulting lessee.
In the fourth count of her counterclaim, Calandra asserted a violation of the TCCWNA by failing to "provide adequate and proper notice of penalties, early termination charges, and default provisions."[4] Calandra offers no substantive argument in support of this claim. She merely repeats her argument that the trial court "entered summary judgment prematurely" but fails to explain what additional discovery is needed. She concludes that since her first three counterclaims are viable, this claim is "by definition" subject to reinstatement. We deem this argument to be without merit. R. 2:11-3(e)(1)(E).
Lastly, Calandra summarily states Ford violated the PLA "by failing to adequately and clearly set forth the early termination charges and default provisions from its Lease in easily understandable terms." We deem this argument to be without merit. R. 2:11-3(e)(1)(E).
Affirmed.
[1] Ford represents in its brief for reconsideration that Calandra deposed "three Ford credit witnesses." The appellate record only contains Anderson's and Nicosia's depositions.
[2] As explained in Ford's statement of material facts in support of summary judgment, not disputed by Calandra, the debt owed by Calandra was $8575.35,* calculated as follows: (1) $25,585.59, the remaining unpaid adjusted capitalization cost had she made 11 payments at the time she returned the vehicle to the dealership, calculated under the lease by "reducing the adjusted capitalized cost each month by the difference between the Base Monthly Payment and the part of the Rent Charges earned in that month based on an actuarial basis; plus (2) $1740, the monthly payments due when the vehicle was returned; plus (3) $65.26, associated late fees; plus (4) $384.50, auction expenses; minus $19,200, the gross sales price realized at auction.
*The difference between this figure and the judgment ultimately entered by the court was a security deposit paid by Calandra that Ford omitted in its calculation.
[3] Regulation M provides in 12 C.F.R. § 213.4(q) that customers must be notified of "[t]he amount or the method of determining the amount of any penalty or other charge for delinquency, default, or late payments, which must be reasonable."
[4] N.J.S.A. 56:12-15 provides, in part, that a lessor shall not enter into any written consumer contract which includes any provision that violates any clearly established legal right of a consumer or responsibility of a lessor as established by State or Federal law.