Summary
finding "good faith" where plaintiff hired process server who attempted personal service at defendant's only known addresses, performed a "skip trace," and checked various public records
Summary of this case from United States v. HovnanianOpinion
DOCKET NO. A-4165-14T3
09-29-2016
BANK OF AMERICA, N.A., Plaintiff-Respondent, v. ELANA GAGNE, Defendant-Appellant.
Christine M. Friedman, attorney for appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, attorneys for respondent (Timothy Ziegler, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Leone and O'Connor. On appeal from the Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. F-003155-14. Christine M. Friedman, attorney for appellant. Frenkel Lambert Weiss Weisman & Gordon, LLP, attorneys for respondent (Timothy Ziegler, on the brief). PER CURIAM
Defendant Elana Gagne appeals from an April 24, 2015 order denying her motion to dismiss the complaint or to vacate the judgment for lack of service. We affirm.
I.
In July 2009, defendant executed a note to MLD Mortgage, Inc. (MLD) on a $314,275 loan. Defendant also executed a mortgage to Mortgage Electronic Registration Systems, Inc. (MERS), as nominee for MLD, secured by a property located in Union Beach (the Property). MERS formally assigned the mortgage to plaintiff Bank of America, N.A.
Defendant defaulted on the note when she failed to make the installment payment due on May 1, 2010 and all payments due thereafter. On January 28, 2014, plaintiff filed a complaint for foreclosure.
On February 24, 2014, an independent process server attempted to serve defendant at the Property, but the tenant said defendant was the landlord and did not reside there. That same day, the process server also attempted to serve defendant at two other addresses in Red Bank and Highlands, without success. On March 4, 2014, the process server tried to serve defendant at "4 Bowne Avenue" in Atlantic Highlands, but he found no house with that number. He spoke to a resident of Bowne Avenue, who advised there was also a Bowne Road in Atlantic Highlands. The process server attempted to serve defendant at "4 Bowne Road" in Atlantic Highlands, but was told she did not live there.
Additionally, in March 2014 plaintiff sent a copy of the summons and complaint to defendant at "4 Bowne Avenue" in "Atlantic Highlands" via certified mail. Defendant signed the return receipt on March 10, 2014.
On September 26, 2014, plaintiff's counsel submitted a Certification of Inquiry and Mailing in support of its application for default. The certification related plaintiff's unsuccessful attempts to serve defendant at the Property and in Red Bank, and attached certifications of attempted service at those addresses. The certification also recounted plaintiff's efforts to determine the whereabouts of defendant, including a skip trace, searches of Directory Assistance, the Social Security Death Index, and the Internet, and inquiries to the Post Office, Tax Office, the County Voter Registration Office, Surrogate's Office, Office of Vital Statistics, and the Department of Motor Vehicles (DMV). None of these inquiries resulted in further information about the whereabouts of defendant. Plaintiff's counsel certified that defendant could not be personally served in New Jersey because she could not be located. Accordingly, plaintiff certified it had published a notice to absent defendants on April 12, 2014, and sent a copy of the notice to the Property via ordinary mail.
Default was entered on September 26, 2014. Plaintiff moved for final judgment on January 21, 2015. Final judgment was entered on February 20, 2015.
On March 17, 2015, defendant moved to dismiss the complaint for lack of service, or to vacate the final judgment. In support of her motion, defendant certified as follows. She had lived at the Property, and then at the Highlands address, but she moved to 4 Bowne Avenue in Atlantic Highlands on January 24, 2014. She filed a change of address with the DMV and Postal Service in that same month. She directly notified plaintiff of her new address in Atlantic Highlands, and plaintiff regularly sent her correspondence at the 4 Bowne Avenue address. She attached an April 3, 2014 letter, and June 2014 and February 2015 loan statements, sent by plaintiff to 4 Bowne Avenue. She added that the Red Bank address was her husband's law office. Her husband certified that no process server had made inquiry at his office.
Notably, both loan statements began with a notice to defendant that "Your loan is in the foreclosure process."
Plaintiff's opposition to defendant's motions included a certification attaching the certifications of attempted service at the Highlands address and the Bowne Avenue and Bowne Road addresses, as well as the certified mail receipt signed by defendant. In reply, defendant filed a supplemental certification. Defendant admitted that there are two "Bowne Avenues" in Atlantic Highlands, as well as a Bowne Road, and that "[t]his can cause confusion."
On April 24, 2015, in an oral opinion, the trial court found that plaintiff made a diligent effort to personally serve the complaint on defendant on multiple occasions. The court found that plaintiff then served the complaint via certified mail, and that defendant personally signed the return receipt. The court also found plaintiff completed service via publication. Accordingly, the court found both that plaintiff had met the standards for obtaining both in personam jurisdiction and quasi-in-rem jurisdiction. The court found that defendant had failed to provide good cause to set aside the final judgment, had not shown excusable neglect, and failed to raise a meritorious defense. On those grounds, the court denied defendant's motion and upheld the final judgment.
Defendant appeals.
II.
Defendant argues the trial court erred in refusing to vacate final judgment under Rule 4:50-1(d). Rule 4:50-1 provides that "[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: . . . (d) the judgment or order is void[.]"
"The decision whether to grant such a motion is left to the sound discretion of the trial court[.]" U.S. Bank Nat'l Ass'n v. Curcio, 444 N.J. Super. 94, 105 (App. Div. 2016) (quoting Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993)). "The trial court's determination . . . warrants substantial deference, and should not be reversed unless it results in a clear abuse of discretion." Ibid. (quoting US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)). We must hew to that standard of review.
III.
Defendant argues the final judgment of foreclosure was void under Rule 4:50-1(d) because service of process was insufficient. However, defendant received plaintiff's complaint and summons by certified mail on March 10, 2014, and signed the return receipt. Nonetheless, defendant failed to challenge the sufficiency of service for over a year, until her March 17, 2015 motion to vacate the final judgment. "Because of defendant's delay in raising this claim despite having notice of the complaint, she 'was not equitably entitled to vacate the judgment.'" Curcio, supra, 444 N.J. Super. at 105 (citation omitted).
In any event, plaintiff's service by mail was authorized by New Jersey's Court Rules. "The primary method of obtaining in personam jurisdiction over a defendant in this State is by causing the summons and complaint to be personally served within this State pursuant to R. 4:4-3." Id. at 105-06 (quoting R. 4:4-4(a)). However, "'in personam jurisdiction may be obtained by mail under the circumstances and in the manner provided by R. 4:4-3.'" Ibid. Rule 4:4-3(a) provides, in pertinent part:
If personal service cannot be effected after a reasonable and good faith attempt, which shall be described with specificity in the proof of service required by R. 4:4-7, service may be made by mailing a copy of the summons and complaint by registered or certified mail, return receipt requested, to the usual place of abode of the defendant . . . . Return of service shall be made as provided by R. 4:4-7.
Here, plaintiff employed an independent private process service who certified that he unsuccessfully attempted to serve defendant personally with plaintiff's complaint and summons at five separate locations; the Property, her subsequent address in Highlands, her subsequent address at two locations in Atlantic Highlands, and her husband's law office.
Further, as "described with specificity in" the Certification of Inquiry and Mailing, plaintiff made a "diligent inquiry to determine defendant's place of abode" before making mail service. R. 4:4-7. Plaintiff performed a skip trace, and checked Directory Assistance, the Social Security Death Index, Internet, DMV, Post Office, Tax Office, County Voter Registration Office, Surrogate's Office, and Office of Vital Statistics. Together, this was a reasonable and good faith attempt.
Defendant claims service was improper because she certified she "notified [plaintiff] of my new address in Atlantic Highlands." However, her certification did not state how she notified plaintiff. Her brief argues she did so in her Qualified Written Request for information dated February 18, 2014, but that simply listed "4 Bowne Ave, Atlantic Highlands" without indicating it was a change of address.
In any event, on March 4, 2014, plaintiff's independent process server attempted to serve defendant personally on Bowne Avenue, Atlantic Highlands. He was told by a resident that there was also a Bowne Road, where he also attempted service.
Confusingly, as defendant later certified, there are two Bowne Avenues in Atlantic Highlands, as well as Bowne Road. That oddity did not render the process server's efforts unreasonable or in bad faith. Indeed, defendant certified that "[e]very time we have a delivery to our home, the driver has difficulty finding our house. The GPS will typically take you to the other Bowne Avenue," which "is on the other side of town," or to Bowne Road.
"Rule 4:4-3(a) only requires 'a reasonable and good faith attempt' to effect personal service before resorting to service by mail." Id. at 107 (quoting R. 4:4-3(a)). Because plaintiff made a reasonable and good faith effort to serve defendant personally before effecting mail service on March 10, 2014, service by certified mail was proper under Rule 4:4-3(a).
The trial court found that plaintiff also served defendant by ordinary mail, but the record is unclear. In any event, defendant accepted delivery of the certified mail, and Rule 4:4-3(a) requires service by ordinary mail only "[i]f the addressee refuses to claim or accept delivery of registered or certified mail."
"Because plaintiff served defendant within New Jersey, service by mail was governed by Rule 4:4-3(a) rather than Rule 4:4-4(b)(1)(c)." Curcio, supra, 444 N.J. Super. at 108-09. Finally, "plaintiff did not serve defendant pursuant to [Rule 4:4-4(c)]," but under Rule 4:4-3(a), so service by mail "is valid even if the defendant does not answer or appear." Id. at 109 (quoting Citibank, N.A. v. Russo, 334 N.J. Super. 346, 352 (App. Div. 2000)). Defendant cannot prevail by choosing to ignore the complaint for over a year.
Mail service under Rule 4:4-3(a) "is as fully effective as personal service" and "entry of default is permitted provided only that the conditions of the rule are complied with." Ibid. (quoting Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:4-3 (2016)).
Next, defendant claims that plaintiff's certification of diligent inquiry was defective. Rule 4:4-7 states:
If service is made by mail, the party making service shall make proof thereof by affidavit which shall also include the facts of the failure to effect personal service and the facts of the affiant's diligent inquiry to determine defendant's place of abode, business or employment. With the proof shall be filed the affidavit or affidavits of inquiry, if any, required by R. 4:4-4 and R. 4:4-5. Where service is made by registered or certified mail and simultaneously by regular mail, the return receipt card, . . . which shall include an image of the recipient's signature, provided by the U.S. Postal Service . . . shall be filed as part of the proof. . . . Failure to make proof of service does not affect the validity of service.
Here, plaintiff filed a Certification of Inquiry and Mailing. See R. 1:4-4(b) (allowing certifications instead of affidavits). Plaintiff's certification attested to the various efforts by plaintiff to determine the whereabouts of defendant. It also attached certifications of attempted service at some of the addresses.
Defendant notes plaintiff's certification failed to mention plaintiff's attempt to serve her at 4 Bowne Avenue. Though plaintiff failed to submit a certification of attempted service at the Bowne Avenue and Bowne Road addresses until after defendant's motion to vacate, it is undisputed that plaintiff did attempt to effect personal service on defendant at 4 Bowne Avenue on March 4, 2014. "Failure to make proof of service does not affect the validity of service." Curcio, supra, 444 N.J. Super. at 108 (quoting R. 4:4-7). Furthermore, the trial court found defendant received service by certified mail at that address. Thus, plaintiff properly served defendant under Rule 4:4-3(a), and merely failed to record some of its efforts in its certification.
Moreover, "even if there had been a technical defect in the method of service of process, defendant would not be automatically entitled to vacate the default judgment against [her]." Russo, supra, 334 N.J. Super. at 352. "Where due process has been afforded a litigant, technical violations of the rule concerning service of process do not defeat the court's jurisdiction," or "render[] the judgment upon which the action is brought void and unenforceable." Ibid. (quoting Rosa v. Araujo, 260 N.J. Super. 458, 462-63 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993)); see also Tatham v. Tatham, 429 N.J. Super. 502, 519 (App. Div. 2013).
In Rosa, we accepted the defendant's assertions that the plaintiff mistakenly served a person who "was not the appropriate person to receive service of process on behalf of defendant," and that "service was not made in accordance with the provisions of R. 4:4-4(a)(1)." Rosa, supra, 260 N.J. Super. at 462-63. Nonetheless, we held "due process considerations have been fully met" because the defendant received the summons and complaint before the default judgment was entered. Id. at 463. The same is true here.
"[T]he constitutional requirement of due process does not mandate perfect service. Rather, due process contemplates effective service." Coryell, L.L.C. v. Curry, 391 N.J. Super. 72, 81 (App. Div. 2006). Here, defendant received effective service by certified mail. Plaintiff's failure to include all of its efforts in its certification was not a "'substantial deviation from service of process rules' [which] typically makes a judgment void." M & D Assocs. v. Mandara, 366 N.J. Super. 341, 353 (App. Div.) (citation omitted), certif. denied, 180 N.J. 151 (2004). Moreover, plaintiff corrected its error before the trial court ruled on defendant's motion. Thus, the error was not "clearly capable of producing an unjust result." R. 2:10-2.
The trial court also found that plaintiff satisfied the requirements for quasi-in-rem jurisdiction via publication under Rule 4:4-5(a)(3). However, "[w]e need not address when 'service may' be made pursuant to Rule 4:4-5(a) in an action for foreclosure under a mortgage. It is sufficient to note that service under Rule 4:4-5(a) was not necessary here because defendant could be and was 'served within the State' by mail service under Rule 4:4-3(a)." See Curcio, supra, 444 N.J. Super. at 109-10.
As defendant was properly served under Rule 4:4-3(a), an affidavit of inquiry was not "required by R. 4:4-4 and R. 4:4-5." R. 4:4-7. "Thus, we need not determine whether the Certification of Inquiry [and] Mailing met the requirements for affidavits under those rules imposed by Rule 4:4-5(b)." Curcio, supra, 444 N.J. Super. at 110-11. Nor need we address defendant's claim that an affidavit of inquiry "is a jurisdictional requirement" for service by publication under Rule 4:4-5(b). Pressler & Verniero, Current N.J. Court Rules, comment on R. 4:4-5 (2016) (citing Camden Cty. Bd. of Soc. Servs. ex rel. Boyle v. Yocavitch, 251 N.J. Super. 24, 29 (Ch. Div. 1991)).
In conclusion, "we find no basis to declare the default judgment void under Rule 4:50-1(d)" based on plaintiff's failure to include all its service efforts in its certification. See Guillaume, supra, 209 N.J. at 483. "Service by mail was authorized by our Court Rules and did not offend due process. Therefore, the judgment was not void under Rule 4:50-1(d)." Curcio, supra, 444 N.J. Super. at 112.
In addition, defendant argues that her motion to vacate was filed within a reasonable time because she asserts she did not receive plaintiff's January 21, 2015 motion for final judgment until March 2015 when it was forwarded by the Postal Service. However, defendant's certification made no such assertion, and she made no such argument to the trial court. Moreover, even assuming defendant's motion to vacate was timely, it was meritless. In any event, defendant failed to show she would have had any defense that would have prevented the entry of a default judgment, so any delay in transmitting plaintiff's motion was not "clearly capable of producing an unjust result." R. 2:10-2.
We recognize that "[i]n seeking relief from a void judgment, however, a movant is not required to demonstrate a meritorious defense." Midland Funding LLC v. Albern, 433 N.J. Super. 494, 501 (App. Div. 2013). Defendant's lack of a defense is relevant only to her separate argument that she did not receive plaintiff's motion for default judgment in a timely fashion. See Intek Auto Leasing, Inc. v. Zetes Microtech Corp., 268 N.J. Super. 426, 430-31 (App. Div. 1993). --------
Accordingly, the trial court did not abuse its discretion in denying defendant's motion to vacate.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION