Opinion
DOCKET NO. A-5164-14T3
08-04-2016
CACH OF NJ, LLC, Assignee of Citibank of South Dakota, Plaintiff-Respondent, v. LOCKSLEY WADE, Defendant-Appellant.
Locksley Wade, appellant pro se. Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian P.S. McCabe, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Nugent and Higbee. On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-23805-13. Locksley Wade, appellant pro se. Fein, Such, Kahn & Shepard, P.C., attorneys for respondent (Brian P.S. McCabe, on the brief). PER CURIAM
Defendant Locksley Wade appeals from a June 8, 2015 order denying his motion to set aside a default judgment entered in favor of plaintiff Cach of NJ, LLC. The motion judge denied defendant's motion, concluding defendant failed to support his assertions and present an affirmative defense.
On appeal, defendant argues due process mandates the judgment be vacated because he was not served with the summons or the complaint, and otherwise had no notice of the proceedings. Following review of the record and applicable law, we agree. The judge failed to fully consider evidence in the record showing the address used for service by plaintiff was no longer defendant's address. More importantly, the failure to comply with due process is fatal and requires the judgment be vacated.
Plaintiff, as the assignee of Citibank South Dakota, N.A., initiated this collection action seeking payment of $5478.10 on an underlying Sears credit card account incurred by defendant. The summons and complaint were transmitted to defendant by the Special Civil Part clerk's office via first class and certified mail to an Englewood address. Interestingly, this was not the address reflected on the credit card statements attached to prove the amount of plaintiff's alleged debt.
Although only partially reproduced in the record, the certified mail was returned with the notation: "RETURN TO SENDER -- UNCLAIMED -- UNABLE TO FORWARD." Nevertheless, the judge entered a default judgment on December 30, 2013.
In December 2014, defendant learned of the judgment. He certified he never received the summons, the complaint, or a copy of the judgment. On May 1, 2015, defendant filed a motion seeking to vacate the judgment. The judge denied the motion, marking the order: "DENIED--NO EXCUSABLE NEGLECT and/or NO MERITORIOUS DEFENSE; LACHES." Following defendant's appeal, the judge amplified his statement of reasons, concluding defendant failed to satisfy the requirements of Rule 4:50-1, delineating six bases to set aside a judgment.
It is understood that a motion to open a judgment "rests within the sound discretion of the trial court, exercised with equitable principles in mind, and will not be overturned in the absence of an abuse of that discretion." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964). Defendant argues the trial judge failed to abide with required due process protections.
Due process is fundamental to all legal proceedings. This fundamental requirement includes "notice reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." Rosa v. Araujo, 260 N.J. Super. 458, 463 (App. Div.) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950)), certif. denied, 133 N.J. 434 (1993). In general, when a default judgment is "taken in the face of defective personal service, the judgment is void." Id. at 462; see R. 4:50-1(d) (allowing void judgment to be vacated).
The rules govern service of Special Civil Part pleadings. When service is mailed simultaneously by certified and ordinary mail, effective service is presumed barring reason to believe the service was not effectuated. R. 6:2-3(d)(4). However, if the defendant "introduces evidence tending to disprove the presumed fact, the presumption disappears." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 427 (App. Div.) (quoting Ahn v. Kim, 145 N.J. 423, 439 (1996)), certif. denied, 179 N.J. 309 (2004).
Here, the judge erroneously failed to consider defendant's assertions he was never served, which are supported with documentation presented by plaintiff. Among the notations on the summons and complaint was "unable to forward," suggesting insufficient service. If the judge had doubts even in light of this evidence and defendant's certified statement, a hearing should have been held to test defendant's credibility.
Defendant also advances Rule 4:50-1(f), allowing a judgment be vacated for "any other reason justifying relief." While there is no categorization of the situations deserving relief under Rule 4:50-1(f), it provides relief in "exceptional situations." Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966). We have concluded Rule 4:50-1(f) allows relief when service upon the defendants' representative was valid, but "there was undeniably doubt about defendants' actual receipt of the process." Davis v. DND/Fidoreo, Inc., 317 N.J. Super. 92, 100 (App. Div. 1998), certif. denied sub nom, Davis v. Surrey Downs/Fidoreo, Inc., 158 N.J. 686 (1999). We noted since there was "at least some doubt as to whether the defendant was in fact served with process," the trial court abused its discretion in denying the defendants' motion to vacate a default judgment. Ibid. (quoting Goldfarb v. Roeger, 454 N.J. Super. 85, 92 (App. Div. 1959).
As provided by Rule 4:50-2, a motion under (d) or (f) must be filed "within a reasonable time." When, as here, the judgment is not served on the moving party, the timeliness of the motion is measured by when the party had actual notice. Farrell v. TCI of N. N.J., 378 N.J. Super. 341, 353-54 (App. Div. 2005).
We conclude the motion judge abused his discretion in failing to grant defendant's motion. The interests of justice and fundamental fairness demand defendant be served with process and given an opportunity to respond.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION