NEW CENTURY FINANCIAL SERVICES, INC. v. BLACKIENo. A-0246-10T4.
NEW CENTURY FINANCIAL SERVICES, INC., Plaintiff-Respondent,
CATHRINA BLACKIE, Defendant-Appellant.
CATHRINA BLACKIE, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Argued January 23, 2012.
Decided March 6, 2012.
David Wisniewski argued the cause for appellant. Lawrence J. McDermott, Jr., argued the cause for respondent (Pressler and Pressler, L.L.P., attorneys; Mr. McDermott, on the brief).
Before Judges Ashrafi and Fasciale.
NOT FOR PUBLICATION
Defendant Cathrina Blackie appeals from a July 9, 2010 order of the Special Civil Part denying her motion for reconsideration of a prior order dated April 1, 2010. The prior order denied her motion to vacate a default judgment entered by the clerk of the Special Civil Part on February 8, 2010. Defendant did not file a notice of appeal from the April 1, 2010 order, and her motion for reconsideration was not timely filed under
Plaintiff New Century Financial Services, Inc. filed a one-page complaint against defendant on December 10, 2009, in which it claimed to be the owner of a specifically numbered Sears Premier Card account that was in default, and the total sum of $1,395.01 was due from defendant on that account. On December 15, 2009, the clerk of the Special Civil Part served the complaint and a summons by mail upon defendant at the address provided by plaintiff. Under
The Postal Service returned the certified mailing of the summons and complaint to the court stamped "unclaimed." Upon plaintiff's application, the clerk of the Special Civil Part entered a default judgment for a total of $1,481.42, which included court costs of $39.00 and statutory attorney's fees of $42.98. On February 12, 2010, plaintiff's attorney wrote to defendant informing her of the default judgment.
On March 11, 2010, pro bono counsel for defendant filed a motion to vacate the default judgment. Defendant's certification in support of the motion asserted that she had not received the summons and complaint and that the February 12, 2010 letter from plaintiff's attorney was her first notification of the court action against her.
On April 1, 2010, the court denied defendant's motion to vacate the judgment, stating in its order that mailed service was effective under the court rules and that defendant had shown neither excusable neglect for her failure to answer the summons and complaint nor a meritorious defense to plaintiff's claim of money owed.
On June 21, 2010, counsel for defendant filed a motion for reconsideration. The court denied the motion on July 9, 2010, stating in its order that the motion was untimely under
On appeal, defendant argues that plaintiff's debt-collection tactics were unfair because they failed to include sufficient information about the debt and plaintiff's entitlement to a judgment. She argues that we should adopt rules and requirements to balance the equities between debt collectors and unsophisticated debtors engaged in litigation.
We decline to use this appeal for the broad policy-making purposes advocated by pro bono defense counsel. The procedural and factual record before us is inappropriate for a holding that would affect many other litigants and alter the process employed in our courts for debt collection cases. We will limit our decision to the factual and procedural issues of this case.
We lack jurisdiction to determine the merits of defendant's contentions on appeal because she did not pursue her appeal in a timely manner. Had defendant filed a notice of appeal within forty-five days,
Although the procedural deficiencies are sufficient ground for rejection of defendant's appeal, we add the following comments in the interest of completeness. Nowhere in defendant's papers is there a denial that the Sears credit card alleged in the complaint was her account or that it went into default for non-payment. Defendant also has not challenged the amount due on the account. Furthermore, defendant has not denied the accuracy of the mailing address used to effect service of process upon her or suggested a reason that she would not have received the mail.
These omissions contradict any claim that the default judgment should have been vacated under subsection (a) of
Nor has defendant demonstrated a claim under subsection (b) of
As to defendant's claim that the judgment was void and that subsection (d) of
A default judgment is also void if it is "taken in the face of defective personal service,"
Here, defendant has not shown a defect or a substantial deviation from the service rules. The clerk of the Special Civil Part served the summons and complaint upon defendant by certified and regular mail to her home address in accordance with court rules applicable to the Special Civil Part.
The Special Civil Part's docket shows that the certified mailing was returned as "unclaimed," but the ordinary mailing was not returned. The judgment was not void because of improper service of the summons and complaint.
Defendant makes colorable arguments as to the adequacy of plaintiff's proofs in obtaining default judgment.
Plaintiff acknowledges that the Sears credit card account was an "open-end credit plan," but it provided to the clerk only its own electronic record of the debt beginning in October 2009, together with a pro forma certification of an account manager. Plaintiff presented no documentary proof of the underlying Sears credit card account. Nothing in the records provided to the clerk indicated the terms and amounts upon which the original debt of $1,388.77 claimed in plaintiff's electronic record was calculated. There is no indication of when the account went into default as a Sears account, how much in principal was owed at that time, how much of the debt was added as interest or other fees, the interest rate the original creditor charged, or the basis for the addition of any charges beyond the principal in default.
Also, nothing in the proofs submitted by plaintiff established how and when plaintiff came to own the account. There is neither a document nor a sworn statement in the record indicating that plaintiff is in fact an authorized assignee of the original creditor and has the right to collect on its defaulted account.
On the other hand, as we have stated, defendant has not challenged the truth of her debt on the Sears account or the amount claimed but has only alleged procedural deficiencies in plaintiff's presentation of its case.
Since defendant's appeal focuses upon inadequacies in the manner by which plaintiff obtained judgment and does not dispute the merits of the debt, it is appropriate for us to hold defendant as well to the procedural requirements of our court rules. Defendant did not comply with the filing requirements of those rules in her efforts either in the trial court or before us to vacate the judgment. This is not an exceptional case under subsection (f) of
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