PAN TECHNOLOGY, INC. VS. GERSHON ALEXANDER (L-3565-11, 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NOT FOR PUBLICATION WITHOUT THE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 NO. A-2423-19
A-3419-19

PAN TECHNOLOGY, INC.,

Plaintiff-Respondent,

v.

GERSHON ALEXANDER,

Defendant-Appellant,

and

HAROLD P. COOK, III,
JOSEPH C. PERCONTI,
MICHAEL DELLA FAVE
and BRIAN LUBEERT and
ONE WASHINGTON
HOLDINGS, LLC, a New
Jersey Limited Liability
Company,

Defendants.
_______________________

Argued April 21, 2021 – Decided August 3, 2021

Before Judges Ostrer, Accurso and Vernoia.
 On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3565-11.

John J. Segreto argued the cause for appellant (Segreto
& Segreto, LLP, attorneys; John J. Segreto, of counsel
and on the briefs).

Matthew S. Slowinski argued the cause for respondent
(Slowinski Atkins, LLP, attorneys; Matthew S.
Slowinski, on the briefs).

PER CURIAM

In these two appeals, which we consolidate for purposes of our opinion,

we review two trial court orders directing the turn-over of funds to plaintiff Pan

Technology (Pan) to satisfy a 2011 judgment against Gershon Alexander

(Gershon).1 Because there existed genuine issues of material fact regarding who

owned the funds, we reverse both orders, and remand for discovery and plenary

hearings.

I.

On May 26, 2011, Pan obtained final judgment for $246,134.56 plus

interest against Gershon and others. Pan recorded the judgment as a lien on

September 1, 2011. In November 2019, Pan intensified collection efforts and

secured a Writ of Execution against Gershon in the amount of the judgment.

1
Because these appeals involve three family members with the same last name,
we use first names for convenience and mean no disrespect in doing so.
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Pan then filed two separate turn-over motions — one involving a TD Ameritrade

account in which Gershon's father Harold has an interest, and a second involving

a Santander Bank account in which Gershon's wife Tamar has an interest. We

review the circumstances surrounding each order.

A.

At Pan's request, the Passaic County Sheriff served a TD Ameritrade

branch in Wayne with the writ of execution. A bank representative informed

the officer that the bank maintained an account with $127,181.73 "in the name

of Harold C. Alexander and Gershon Alexander."

Pan then filed a motion to turn over the account's funds. Gershon

responded by filing a claim of exemption from writ of execution pursuant to R.

4:59-1(h). Both Gershon and Harold requested a hearing, but the court did not

hold one. Shortly thereafter, the two men presented sworn affidavits opposing

Pan's motion. Harold asserted he added his son's name to the account in

November 2018 "for convenience and for transfer on death." Harold stated he

deposited all the money in the account, and Gershon deposited nothing. Gershon

asserted the same thing in his affidavit. Gershon also provided account

statements that purported to show that Harold entirely funded the account.

Gershon asserted "[t]he contents of the account are not [his] assets" and thus

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should not be eligible to satisfy Pan's judgment; and "[h]ad [he and Harold]

realized that placing [Gershon's] name on the account would jeopardize

[Harold]'s funds to satisfy [Gershon's] legal obligations," they never would have

done so. The relevant account statements list both Harold and Gershon on the

account, and the account was labeled "JT WROS," which the parties agree

signifies a joint tenancy with the right of survivorship.

The court heard oral argument on the motion but did not take testimony.

Pan's counsel argued "all the evidence . . . is that this is a joint tenant account.

They both own an interest in the whole, and it . . . was a gift in praesenti" absent

evidence to the contrary. Gershon's counsel conceded "[t]he title to the account

allows both parties to direct control over the account," but he asserted that

parties may present evidence they "intended something different than what . . .

title to the account" says; and the affidavits established the parties' intent was to

add Gershon to the account so it would pass to Gershon upon Harold's death.

The judge noted that no one submitted "opening account documents" that

would have defined Gershon's authority, if any, over the account. The judge

said he struggled with the fact that a [transfer on death] account was "plated"

with both names, meaning both equally controlled the account. And, "there's

certainly indications that indicate that both parties [Gershon and Harold] . . . can

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make a claim to all the assets in the account." The judge also asked if Harold

alone owned the accounts that funded the TD Ameritrade account, but counsel

could not provide an answer.

The court granted Pan's motion from the bench, finding the information

presented established the account was plated as a joint account. "And with

respect to a joint account, it indicates that either party on a joint account has the

right to the assets within the account, simply based on the plating." Defendant

immediately moved for a stay, which the court denied. The briefs indicate the

funds have since been removed from Harold's account and turned over to Pan.

B.

Turning to the Santander account, the Middlesex County Sheriff served

Santander's East Brunswick location with a levy on Gershon's funds. Almost

two months later, the bank notified the Sheriff that it was "currently holding

$19,562.74 in the name(s) of GERSHON D ALEXANDER in response to a[n]

NJ Execution." The Sheriff then served Gershon with a notice that the funds

were levied upon. Pan filed a motion to turn over the funds, which Gershon

opposed. Gershon certified the account had always belonged solely to his wife,

and he was not a joint holder of the account. Gershon attached a recent account

statement that only bore Tamar's name.

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 In a reply certification, Pan's counsel recounted a telephone conversation

with Santander's legal counsel, William Votta, who stated that Gershon removed

his name from the levied account on January 23, 2020, which was two days after

the bank advised the Sheriff it was holding Gershon's funds. Votta told counsel

the account previously listed Gershon and Tamar as co-owners. The court issued

an order directing the bank to turn over the funds.

Gershon then sought reconsideration, based on a certification from the

same bank lawyer who spoke to Pan's counsel. Votta certified that after

receiving notice of the levy, Gershon complained to the bank's "Complaint's

Team" that he did not jointly own the account "regardless of the information

contained in Santander's electronic systems," and notwithstanding that Gershon

had been receiving account statements since November 2017, when Santander

added him to the account. Votta stated that after the court decided the turn-over

motion, "the Santander Complaints Team determined that Gershon Alexander

was never intended to be a joint account holder [of the account] . . . [and] [t]he

funds, at all times, belonged solely to Tamar Alexander and should not have

been attached by Santander in response to the Writ." Gershon filed another

certification, asserting the funds were his wife's alone.

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 The court denied Gershon's reconsideration motion in a written opinion.

The court "found that [Gershon] has not provided the [c]ourt with any new

information for which the [c]ourt can or should vacate" its turn-over order. The

court agreed with Pan that Votta's certification was comprised of hearsay

statements by unnamed Santander employees who "apparently concluded that

some other unnamed Santander employee must have made an error in

inadvertently adding [Gershon] to the account." The court cited the absence of

certifications from any of these other unnamed employees and noted Gershon

asked the bank to remove his name from the account after the levy was served,

even though he had received bank statements since November 2017. The court

also cited the absence of any account-related documents substantiating

Gershon's claims.

Gershon now appeals the turn-over orders involving the two accounts, and

the denial of the reconsideration motion involving the Santander account.

II.

A.

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 Turning first to the TD Ameritrade account, we reverse the trial court's

turn-over order because the motion record reflects there are material factual

issues that warrant a plenary hearing after appropriate discovery.2

"[W]hen seeking a turnover from a joint account, the judgment creditor

has the burden 'to prove that the moneys thus deposited are the individual

property of the judgment debtor, and therefore applicable to the satisfaction of

the judgment.'" Banc of Am. Leasing & Cap., LLC v. Fletcher-Thompson Inc.,

453 N.J. Super. 50, 53 (App. Div. 2018) (quoting Esposito v. Palovick, 29 N.J.

Super. 3, 10-11 (App. Div. 1953)). Pan argues that, if an account is a joint

tenancy with the right of survivorship, then each named account holder owns

the entirety of the account. Generally speaking, this is accurate, as "each joint

tenant . . . holds 'per tout,' or the entire property, meaning that each co-owner is

entitled to possess and enjoy the entire estate. This feature also enables the

2
Gershon and Harold filed a claim of exemption with the trial court, and
Gershon's counsel noted at oral argument before the trial court that they were
entitled to a hearing, but the court evidently did not conduct one. See R. 4:59-
1(h) (stating that "[i]f . . . the court receives a claim of exemption . . . it shall
hold a hearing thereon within 7 days after the claim is made"). Because Gershon
does not contend the court erred in not holding a required hearing, we deem the
argument waived, and we do not address it. See Sklodowsky v. Lushis, 417 N.J.
Super. 648, 657 (App. Div. 2011).
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survivor of the joint tenants to obtain sole possession of the whole property

without any further conveyance." 7 Powell on Real Property § 51.03 [2] (2021).

But, the general rule is subject to an exception. Gershon and Harold

asserted that Gershon was added to the account for "convenience" and for

testamentary purposes. Our caselaw recognizes that in these instances, "[i]f a

joint account, with a right of survivorship, is established for [testamentary]

purpose[s], the assets in the account remain the sole property of the depositor

during his or her lifetime." Lebitz-Freeman v. Lebitz, 353 N.J. Super. 432, 436-

37 (App. Div. 2002). Gershon and Harold contended that was their purpose in

adding Gershon to the account, which only Harold funded. And because

Gershon was added solely for testamentary purposes, he had no control over

trading in the account, notwithstanding the account's title, which counsel

conceded at the motion hearing "allow[ed] both parties [Gershon and Harold] to

direct control over the account."

The court mistakenly rejected Gershon's and Harold's assertions, based on

the absence of additional corroboration — such as information about the source

of funds for the account; whether Harold or a financial advisor directed trades

in the account; and whether Gershon was authorized to trade in the account. Just

as it is inappropriate on a summary judgment motion to make findings about a

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party's intent and credibility on a documentary record, it was inappropriate here.

See McBarron v. Kipling Woods, L.L.C., 365 N.J. Super. 114, 117 (App. Div.

2004) (stating "[t]he cases are legion that caution against the use of summary

judgment to decide a case that turns on the intent and credibility of the parties");

see also Bruno v. Gale, Wentworth & Dillon Realty, 371 N.J. Super. 69, 76-77

(App. Div. 2004) (reversing and remanding for a plenary hearing where trial

judge reached a "decision based on certifications containing conflicting factual

assertions").

The court must hold a plenary hearing, with sworn testimony from Harold

and Gershon, to properly assess Harold's intent in adding Gershon's name to the

account. In advance of that hearing, to fairly test Harold's and Gershon's

assertions, Pan may conduct appropriate discovery, including depositions and

the production of documents related to the creation, funding, and management

of the account. See R. 4:59-1(f); see also R. 6:7-2. Harold and Gershon may

seek third-party discovery, as well. Therefore, we reverse the trial court's order

and remand for discovery and a plenary hearing.

B.

We also reverse the court's order denying reconsideration of its order

regarding the Santander account. (As we reverse the reconsideration denial, we

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do not address the correctness of the initial order.) In granting the initial turn-

over order, the court relied on two hearsay statements from the bank, but the

court then refused on hearsay grounds to consider a third statement from the

bank indicating the first two statements were not accurate. That was error. The

court should have granted the reconsideration motion and conducted a plenary

hearing to resolve the factual question of whether Gershon's name was added to

his wife's account by mistake.

In securing the initial turn-over order, Pan relied on the bank's unsworn

letter to the Sheriff that the bank was "currently holding $19,562.74 in the

name(s) of GERSHON D ALEXANDER," and Votta's out-of-court oral

statements to Pan's counsel. The bank's letter conceivably could have been

offered as a "business record" under N.J.R.E. 803(c)(6) had the appropriate

custodian presented the requisite foundation, see Manata v. Pereira, 436 N.J.

Super. 330, 346 (App. Div. 2014) (stating that a proponent of a business record

must "present a custodian of records, if not the particular" author of the report);

Konop v. Rosen, 425 N.J. Super. 391, 403 (App. Div. 2012) (reciting the

requirements for the rule), but no one did.

And, we see no basis to deem Votta's hearsay statements to Pan's counsel

as admissible. See Est. of Kennedy v. Rosenblatt, 447 N.J. Super. 444, 456

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(App. Div. 2016) (observing that it "bears emphasizing that '[a]ffidavits by

attorneys of facts not based on their personal knowledge but related to them . . .

constitute objectionable hearsay'" (alterations in original) (quoting Mazur v.

Crane's Mill Nursing Home, 441 N.J. Super. 168, 179-80 (App. Div. 2015))).

Our rules require that evidence on a motion be presented by "affidavits [or

certifications] made on personal knowledge, setting forth only facts which are

admissible in evidence to which the affiant is competent to testify." R. 1:6-6;

cf. Jeter v. Stevenson, 284 N.J. Super. 229, 233 (App. Div. 1995) (stating

"evidence submitted in support of a motion for summary judgment must be

admissible").

We acknowledge that Gershon did not object to these hearsay statements

when offered, and "hearsay evidence not objected to is evidential," State v.

Ingenito, 87 N.J. 204, 224 n.1 (1981) (Schreiber, J., concurring). But, we also

"presume that the fact-finder appreciates the potential weakness of such proofs,

and takes that into account in weighing the evidence." N.J. Div. of Child Prot.

& Permanency v. J.D., 447 N.J. Super. 337, 349 (App. Div. 2016).

Votta's certification, offered to support Gershon's reconsideration motion,

raised substantial questions about the trustworthiness of the bank's initial letter

to the Sheriff that it held over $19,000 of Gershon's funds, and the accuracy of

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Votta's reported oral statements to Pan's counsel regarding account ownership.

Although we deferentially review a court's decision on a reconsideration motion

for an abuse of discretion, see Cummings v. Bahr, 295 N.J. Super. 374, 389

(App. Div. 1996), the court mistakenly refused to consider the new information

in Votta's certification, see Town of Phillipsburg v. Block 1508, Lot 12, 380

N.J. Super. 159, 175 (App. Div. 2005) (stating that a court should grant a motion

for reconsideration if "there is good reason for it to reconsider new information"

(quoting Pressler, Current N.J. Court Rules, cmt. on R. 4:49-2 (2005))).

While a trial judge is not obliged to reconsider an order when presented

with "new" information that the movant could have presented before, see

DelVecchio v. Hamberger, 388 N.J. Super. 179, 189 (App. Div. 2006), the

circumstances here indicate that Votta's certification was not previously

available. Prompted by the bank's initial statement that the $19,562.74 was his,

Gershon pressed the bank to investigate his claim that it erred. He did not

control the speed of the bank's complaint review process. Only after the bank

completed its review could Gershon present the affidavit supporting his

reconsideration motion.

The court also erred in rejecting Votta's affidavit on hearsay grounds.

Although we review a court's evidentiary decision for an abuse of discretion,

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Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010), we

do not defer to decisions based on the wrong legal test, State v. Hyman, 451 N.J.

Super. 429, 441 (App. Div. 2017). Under N.J.R.E. 104(a), the Complaint Team's

statement did not have to be admissible hearsay for the court to use it to

reconsider its reliance on the bank's initial statement that it held $19,562.74 of

Gershon's money. See N.J.R.E. 104(a)(1) (stating that the court is "not bound

by evidence rules" except those pertaining to privilege and relevance, in

deciding "any preliminary question about whether . . . evidence is admissible");

see also Estate of Hanges, 202 N.J. at 388 n.12 (noting that under N.J.R.E.

104(a), otherwise inadmissible hearsay may be considered to ascertain the

admissibility of other evidence).

The fundamental issue before the court on the reconsideration motion was

the trustworthiness of the bank's initial statement that Gershon owned the

$19,562.74. Even if Pan had offered a records custodian and met the other

prerequisites for admitting that statement as a business record under N.J.R.E.

803(c)(6), a "court retains the power to bar a business record if 'the sources of

information or the method, purpose or circumstances of preparation indicate that

it is not trustworthy.'" Manata, 436 N.J. Super. at 346 (quoting N.J.R.E.

803(c)(6)). Here, Votta's affidavit was relevant to demonstrate that the bank's

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initial statement may not have been trustworthy. Notwithstanding the embedded

hearsay, the court should have considered Votta's affidavit to reconsider the

admissibility of the bank's initial statement of ownership.

Upon doing so, the court should have determined there existed a genuine

issue of fact regarding who owned the Santander account. Although the trial

court appropriately identified other evidence that might be relevant to the

ultimate question, including account statements and Gershon's evident

acquiescence to statements that listed him as a joint owner, Pan bore the burden

to establish Gershon's ownership. In advance of the hearing, the court may

permit appropriate discovery. And if the court does determine the account was

jointly owned, it shall determine what if any funds in the account Tamar solely

owned. See Banc of Am. Leasing, 453 N.J. Super. at 53-54 (holding that the

motion court failed to identify to whom belonged the turned over funds in a joint

account).

III.

Although we do not question the trial judge's fairness, we direct that a

different judge oversee discovery and conduct the remand hearings. See In re

D.L.B., ___ N.J. Super. ___, ___ (App. Div. 2021) (slip op. at 31-32) (approving

assignment to a different judge on remand where the original judge made

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credibility determinations on an incomplete record and may be perceived to be

committed to his or her initial fact-findings).

Also, to restore the parties to the positions they would have held pending

discovery and plenary hearings, Pan shall immediately return to TD Ameritrade

and Santander Bank the funds it received pursuant to the turn-over orders. Upon

the return of the funds, they shall be treated as subject to the original levies in

accordance with Rule 4:59-1 pending the outcome of the remand hearings on

Gershon's claim of non-ownership, or further order of the trial court.

Reversed and remanded as to both orders. We do not retain jurisdiction.

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