NEW CENTURY FINANCIAL SERVICES, INC. v. BLACKIE No. A-0246-10T4.

NEW CENTURY FINANCIAL SERVICES, INC., Plaintiff-Respondent, v. CATHRINA BLACKIE, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.
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NOT FOR PUBLICATION

PER CURIAM.

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 Rule 4:49-2. Therefore, we affirm the trial court's order of July 9, 2010.

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 Rule 6:3-1, defendant had thirty-five days to file and serve an answer to the complaint. With the addition of three days under Rule 1:3-3 because of mailed service of process, the deadline for the filing of defendant's answer was January 22, 2010. Defendant did not file an answer by that date.

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.1 Also, the motion alleged that the proofs submitted by plaintiff to obtain default judgment were insufficient.

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 Rule 4:49-2 and that it also failed to meet the requirements of Rule 4:50-1 for vacating a judgment.

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, Rule 2:4-1(a), from the court's April 1, 2010 order, we would decide this appeal based on the merits of defendant's claims under Rule 4:50-1 seeking to vacate the default judgment. But defendant did not file an appeal from that order. Instead, she filed a late motion for reconsideration in the Special Civil Part. That motion was properly denied as untimely under Rule 4:49-2, which sets a strict twenty-day time period for seeking reconsideration of a judgment or order. Rule 4:49-2 is made applicable to the Special Civil Part by Rule 6:6-1, and its time limitation may not be enlarged, Rule 1:3-4(c).

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 Rule 4:50-1, excusable neglect. Defendant has not alleged either an excuse for failing to answer a properly served summons and complaint or a meritorious defense to plaintiff's claim. See Mancini v. EDS, 132 N.J. 330, 334 (1993); Marder v. Realty Constr. Co., 84 N.J.Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964).

Nor has defendant demonstrated a claim under subsection (b) of Rule 4:50-1, newly discovered evidence. The "new evidence" that defendant highlighted in her motion for reconsideration was the court record indicating the proofs plaintiff had submitted to obtain default judgment. That record was available at the time of defendant's original motion to vacate default judgment and would, in fact, have been available to defendant had she filed a timely answer and sought discovery from plaintiff.

As to defendant's claim that the judgment was void and that subsection (d) of Rule 4:50-1 requires that it be vacated, defendant alleged she never received the summons and complaint. Where the court lacks personal jurisdiction because the defendant was not served with a summons and complaint, the judgment is void from the time of its entry, and defendant need not demonstrate a meritorious defense to the claim. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S.Ct. 896, 900, 99 L. Ed. 2d 75, 82 (1988); Jameson v. Great Atl. & Pac. Tea Co., 363 N.J.Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).

A default judgment is also void if it is "taken in the face of defective personal service," Rosa v. Araujo, 260 N.J.Super. 458, 462 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993), or "when a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice[,]" Jameson, supra, 363 N.J. Super. at 425; accord Sobel v. Long Island Entm't Prod., Inc., 329 N.J.Super. 285, 293-94 (App. Div. 2000).

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. Rule 6:2-3 states in relevant part:

(d) Service by Mail Program. If the process is to be served in this State...: (1) Initial Service. The clerk of the court shall simultaneously mail such process by both certified and ordinary mail.... .... (4) Effective Service. Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service with a marking indicating it has not been delivered, such as "Moved, Left No Address," "Attempted — Addressee Not Known," "No Such Number/ Street," "Insufficient Address," "Not Deliverable as Addressed — Unable to Forward," or the court has other reason to believe that service was not effected. However, if the certified mail is returned to the court marked "unclaimed" or "refused," service is effective provided that the ordinary mail has not been returned.... [Emphasis added.]

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. See Morales v. Santiago, 217 N.J.Super. 496, 505 (App. Div. 1987). Those arguments are directed to whether there was a basis to vacate the judgment under subsection (f) of Rule 4:50-1, the "catch-all" provision that allows relief from a judgment for "any other reason... in exceptional situations... to achieve equity and justice." DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269-70 (2009) (quoting Ct. Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)); see Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994).

Rule 6:6-3(a), pertaining to entry by the clerk of a default judgment, states in relevant part:

If plaintiff's records are maintained electronically and the claim is founded on an open-end credit plan, as defined in 15 U.S.C. §1602(i) [sic2] and 12 C.F.R. §226.2(a)(20), a copy of the periodic statement for the last billing cycle, as prescribed by 15 U.S.C. §1637(b) and 12 C.F.R. §226.7, or a computer-generated report setting forth the previous balance, identification of transactions and credits, if any, periodic rates, balance on which the finance charge is computed, the amount of the finance charge, the annual percentage rate, other charges, if any, the closing date of the billing cycle, and the new balance, if attached to the affidavit, shall be sufficient to support the entry of 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 Rule 4:50-1 that requires our intervention.

Affirmed.

FootNotes


1. Defendant's brief alleges that plaintiff's attorney violated Rule of Professional Conduct 4.2 and the Fair Debt Collection Practices Act, 15 § 1692c, by communicating directly with defendant rather than her attorney. Our record does not establish the date that defendant obtained legal representation and notified plaintiff of that representation.
2. The correct statutory citation is 15 § 1602(j).

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