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The Trust Company of New Jersey v. Bejdough

A-6793-00T5 (N. J. Super. App. Div. 2002) (Unpublished)

CONTRACTS; WAIVER — Where there are absolutely no facts to sustain a claim that a party has made an extraordinary decision to waive a contract right, other than claiming party’s testimony the claimant cannot sustain a dismissal by summary judgment.

The buyer of an automobile financed his purchase price by signing a Retail Installment Sales Agreement which was assigned to a bank. The buyer, claimed to have experienced numerous problems during the two years following purchase of his car. He claimed that he called the bank and spoke to someone named “Bob” regarding the problems and that “Bob” told him to voluntarily surrender the vehicle to the bank “and that would be the end of [his] obligation to the [bank].” He then surrendered the vehicle and stopped making payments. The bank then sold the car and then sued to collect a significant deficiency. The lower court granted summary judgment in favor of the bank, rejecting the car buyer’s argument that the bank, through its purported agent “Bob,” had forgiven the debt. The Appellate Division found that the evidence was “so one-sided” that the bank was entitled to prevail as a matter of law. The identity of “Bob” was never established and even if it had been, “Bob’s” utterance was inadmissible hearsay evidence. Essentially, the buyer could not overcome a motion for summary judgment because there were “absolutely no facts on [the] record establishing ‘Bob’s’ position with the bank, if any, or that he had the authority to make the extraordinary decision to waive the bank’s contractual right to recover any deficiency amount after default by [the buyer].”

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