WILLIAM KAETZ VS. WELLS FARGO DEALER SERVICES (L-6463-15, BERGEN COUNTY AND STATEWIDE) (CONSOLIDATED)

NOT FOR PUBLICATION WITHOUT THE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

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-3409-16T4
A-4147-16T4

WILLIAM KAETZ,

Plaintiff-Appellant,

v.

WELLS FARGO DEALER SERVICES,

Defendant-Respondent.
______________________________

Submitted May 14, 2018 – Decided July 31, 2018

Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No.
L-6463-15.

William Kaetz, appellant pro se.

Buchanan Ingersoll & Rooney, PC, attorneys for
respondent (Mark Pfeiffer, of counsel; Patrick
D. Doran, of counsel and on the brief).

PER CURIAM

In these back-to-back appeals, plaintiff William Kaetz

appeals from a February 8, 2017 order denying reconsideration and
an April 13, 2017 order denying sanctions. For the reasons that

follow, we affirm in part and reverse and remand in part.

We discern the following essential facts from the record. In

2014, plaintiff purchased a used car with financing through

defendant, Wells Fargo Dealer Services. The payments were due on

the 24th of each month, with a contractual ten-day grace period

before the account would be assessed late charges or sent to

default.

According to plaintiff, he mailed each payment on the 24th

of the month, until the "first payment defendant fraudulently

claimed was late, [which] took twelve days for the check to clear

the bank." Defendant lost the subsequent payment, told plaintiff

to cancel the check and send a new one, tried to deposit the "lost"

check, and then deposited the new check. Defendant charged

plaintiff late fees, and reported late payments to plaintiff's

credit report for December 2014. Defendant asserted plaintiff had

submitted other late payments, and was charged other late fees.

Also according to plaintiff, defendant engaged in harassing

behavior over the phone and via mail, and "defamed plaintiff's

reputation."

Defendant asserts that, pursuant to the loan agreement, the

grace period did not preclude late fees for payment received more

than ten days after the 24th. Therefore, since plaintiff was

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mailing out the payments on the 24th, the day they were due, each

payment that arrived more than ten days late was subject to a late

fee.

Plaintiff requested, via phone calls, certified mail, and

regular mail, for defendant to refund the late fees and have the

reported late payments removed from his credit report. Defendant

refused. However, after plaintiff paid off the loan, defendant

credited him for the late charges and assessments.

On July 6, 2015, plaintiff filed a complaint alleging: (1)

violations of the Fair Debt Collection Practices Act, 15 U.S.C.

1692 to 1692p; (2) violations of the Consumer Fraud Act, N.J.S.A.

56:8-1 to 20; (3) violations of the Fair Credit Reporting Act, 15

U.S.C. 1681 to 1681x; and (4) defamation. He sought damages for

physical and emotional distress, and sought damages of $1000 per

day starting on December 4, 2014, for damages to his credit report

and reputation. In August 2015, defendant filed an answer and

counterclaim. In June 2016, the trial judge granted discovery

motions by both parties to compel discovery.

On October 28, 2016, the parties appeared in the Law Division

to argue three motions.1 After argument, the court reserved

1
(1) Defendant's August 25, 2016 motion for summary judgment;
(2) Plaintiff's August 26, 2016 motion to suppress records; and
(3) Plaintiff's September 16, 2016 motion for contempt.

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decision and urged the parties to meet and attempt a settlement.

The parties agreed and left the courtroom to engage in settlement

discussions. They returned the same day, and represented they had

reached a resolution. The following exchange took place in court

on the record:

[Defendant]: There will be a final formal
written settlement agreement that I've already
. . . instructed somebody to start drafting.
But it will provide for a $7,500 payment from
[defendant] to the plaintiff within 30 days
of the execution of the settlement agreement.
It will also provide for [defendant] to delete
the account on the credit report or to
instruct the credit reporting agencies to
delete the account. The settlement agreement
will provide for a release of [defendant], and
its employees, agents . . . .

. . . .

[Defendant]: It will include a confidentiality
provision . . . and it will include a
requirement that the plaintiff provide a U.S.
IRS Form W-9 to [defendant] prior to receiving
the check.

[Court]: Now, do you have that form for him
to sign, to fill out and sign?

[Defendant]: We will provide it to him.

. . . .

[Court]: And, [plaintiff], is that your
understanding of the settlement terms?

[Plaintiff]: Yes. Yes, Your Honor.

Plaintiff was sworn in, and confirmed that after a mediated

settlement conference with defendant, a settlement agreement was

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reached. He accepted the terms described by defendant, and

testified there was nothing else that should be included in the

settlement. He stated specifically, "[h]is settlement is exactly

what we talked about." The judge marked the case settled.

On November 8, 2016, defendant emailed plaintiff a draft

settlement agreement incorporating the terms as discussed with the

court. Plaintiff has not included the draft settlement agreement

in our record, and defendant asserted both at the trial court and

here that it was confidential, but would be provided for in camera

review if requested.

After receiving defendant's draft agreement, plaintiff

modified the agreement to "chang[e] the credit report aspect by

keeping the Account on credit reports and changing all payments

to a positive on time standing." After defendant informed

plaintiff his desired change was not what was agreed before the

judge, on November 23, 2016, plaintiff moved to reopen the case

under Rule 4:50, and to enter a default judgment against defendant

under Rule 4:32-2. In his motion, plaintiff represented "[a]

settlement was signed by plaintiff" and "defendant evaded to agree

and sign the agreement."

Defendant opposed plaintiff's motion, and cross-moved to

enforce the settlement placed on the record. On December 19,

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2016, the trial judge denied plaintiff's motion to reopen the

case, finding,

[t]his matter was settled on October 28, 2016
and the settlement terms were then all placed
on the record; there has been no basis
presented to turn back the hands of time and
force a trial; the [c]ourt is satisfied that
the parties understood the terms of the
settlement agreement and that it was entered
into voluntarily.

By separate order, the judge granted defendant's motion, and

ordered that "the settlement reached between the parties on October

28, 2016 on the record, and as expressed in the Draft Settlement

Agreement as drafted by the defendant, is binding upon the

parties."

On December 29, 2016, plaintiff moved for reconsideration of

the denial of his motion to reopen the case. He asserted defendant

perpetrated fraud on the court by abusing the discovery process,

and this fraud led to an improper judgment. He claimed, without

stating specifics, defendant made false statements to the court,

and improperly brought the IRS and federal government into the

case by requiring plaintiff to sign a tax form. He asserted,

without providing the agreement to this court, that the agreement

drafted by defendant misrepresented the settlement reached in

court. He alleged "[he] believes he told the [c]ourt, off the

record, that he will need to read the agreement before accepting

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the agreement and there may be some minor adjustments." Lastly,

he disagreed with the court's denial of his original motion to

hold defendant in contempt.

On January 16, 2017, plaintiff sent a safe harbor letter

pursuant to Rule 1:4-8, asserting "the entire defense of the

defendant . . . violates the provisions of R. 1:4-8", and defendant

"entered into a litigation and continued a litigation knowing that

there was no supporting evidence to support a defense." He

requested defendant "not oppose plaintiff's action and allow the

judicial machinery to render a default judgment against

[defendant]." If defendant did not "withdraw all actions within

twenty-eight days," plaintiff would file a motion for sanctions.

On January 25, 2017, plaintiff sent a second, identical, letter

to defense counsel.

On February 8, 2017, the trial judge denied plaintiff's motion

for reconsideration and in a written decision, found "[p]laintff

did not present any evidence that the [c]ourt overlooked or failed

to appreciate in denying his original motion." "Nothing in the

record supports [plaintiff's] perception of fraud by defense

counsel or by the [c]ourt. . . . [t]he highlighted portions of the

October 28, 2016 transcript amply confirm that [p]laintiff

understood and willingly accepted the terms of the agreement."

7 A-3409-16T4
 On March 2, 2017, plaintiff moved for sanctions seeking

$10,000 for compensation of his litigation time and expenses. On

March 30, 2017,2 plaintiff appealed from the denial of his motion

for reconsideration.

On April 13, 2017, the trial judge heard and subsequently

denied plaintiff's motion for sanctions, rejecting plaintiff's

argument that since defendant had no evidence he did anything

wrong they should have just accepted a default judgment against

them. Defendant argued the sanctions sought were for discovery

violations, the motion was untimely and procedurally defective,

and at no point had it acted in a manner which would warrant

sanctions.

The judge denied plaintiff's request for compensation for his

litigation time and expenses, primarily because he was self-

represented and not entitled to fees. On May 30, 2017, plaintiff

appealed from the denial of his sanctions motion.

I.

Plaintiff argues the trial judge erred denying his motion to

reconsider and reopen the case. The decision on whether to deny

a motion for reconsideration is addressed soundly to the trial

2
Defendant asserts that we should dismiss plaintiff's appeal
from this order as untimely. However, on June 12, 2017, we granted
plaintiff's motion to file his notice of appeal as within time.

8 A-3409-16T4
judge's discretion. Fusco v. Bd. of Educ. of City of Newark, 349

N.J. Super. 455, 462 (App. Div. 2002); Marinelli v. Mitts &

Merrill, 303 N.J. Super. 61, 77 (App. Div. 1997); Cummmings v.

Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We reverse only

"when a decision is made without a rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis." Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571 (2002) (citation omitted). In addition to the deferential

standard, we note plaintiff's arguments were not raised before the

trial court, and as such we review under the "plain error

standard," which looks at whether an error is "clearly capable of

producing an unjust result." R. 2:10-2.

Reconsideration is only appropriate in a case in which either

"(1) the [c]ourt has expressed its decision based upon a palpably

incorrect or irrational basis, or (2) it is obvious that the

[c]ourt either did not consider, or failed to appreciate the

significance of probative, competent evidence." Fusco, 349 N.J.

Super. at 462 (citations omitted).

It appears from the record the trial judge did not review the

draft settlement agreement prior to determining it was binding on

the parties. Defendant asserted it was confidential but would be

provided to the court for in camera review if requested. There

is no record such a review was undertaken by the trial judge.

9 A-3409-16T4
 Although defendant asserts the draft settlement agreement

comported with the terms placed on the record, and even though

both parties assert they have signed an agreement, we cannot

determine exactly what agreement was signed, if any. Thus, we

cannot know whether either party altered any term, and as such,

it was both an abuse of discretion and clearly capable of producing

an unjust result for the court to order the draft agreement was

binding on the parties.

We also reject plaintiff's argument the settlement was not

enforceable by the court because defendant altered the settlement.

Without the actual agreement, it is impossible to know. However,

the record demonstrates after defendant emailed plaintiff a draft

of the settlement agreement, plaintiff attempted to alter the

terms to require defendant to change the agreement to require

defendant to report to the agency that plaintiff had made all

payments on time.

Because the court did not review the draft settlement

agreement, we reverse the February 8, 2017 order limited to the

trial court's refusal to reconsider the portion of the December

19, 2016 order making the draft settlement agreement binding. We

remand for trial judge to review the written agreement. We affirm

the portion of the order declining to reconsider the settlement

10 A-3409-16T4
agreement as placed on the record, and declining to reopen the

case.

II.

Plaintiff also appeals the trial court's denial of his motion

for sanctions against defendant. We review a determination brought

pursuant to Rule 1:4-8 under the abuse of discretion standard.

United Hearts, L.L.C. v. Zahabian, 407 N.J. Super. 379, 390 (App.

Div. 2009) (citation omitted); In re Estate of Ehrlich, 427 N.J.

Super. 64, 76 (App. Div. 2012) (citation omitted). An "abuse of

discretion is demonstrated if the discretionary act was not

premised upon consideration of all relevant factors, was based

upon consideration of irrelevant or inappropriate factors, or

amounts to a clear error of judgment." Masone v. Levine, 382 N.J.

Super. 181, 193 (App. Div. 2005) (citation omitted).

The judge correctly found as a pro se litigant, plaintiff was

not entitled to fees under the sanctions rule. Alpert, Goldberg,

Butler, Norton & Weiss, P.C. v. Quinn, 410 N.J. Super. 510, 547

(App. Div. 2009) (emphasis added); see Segal v. Lynch, 211 N.J.

230, 262 (2012). Moreover, plaintiff's motion asserting certain

alleged discovery violations is barred under the plain language

of Rule 1:4-8(e), which states that the "rule does not apply to

disclosures and discovery requests, responses, objections, and

discovery motions." The motion was also untimely. Under Rule

11 A-3409-16T4
1:4-8(b)(2), "[a] motion for sanctions shall be filed with the

court no later than 20 days following the entry of final judgment."

In sum, because the denial of the sanctions motion was not

an abuse of discretion, we affirm the April 13, 2017 order. We

affirm the portion of the February 8, 2017 denial of plaintiff's

motion for reconsideration to the extent that it upheld the order

making the settlement terms placed on the record binding.

However, since the draft settlement agreement was not in

evidence we reverse the portion of the February 8, 2017 denial of

plaintiff's motion for reconsideration to the extent it upheld the

order making the draft settlement agreement as drafted by defendant

binding on the parties.

Plaintiff's other arguments are without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

A-3409-16 is affirmed in part and reversed and remanded in

part for further findings consistent with this opinion. A-4147-

16 is affirmed. We do not retain jurisdiction.

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