NEW CENTURY FINANCIAL SERVICES INC v. MARIE PIERRE (2013)

Defendant Marie Pierre (Pierre) appeals from a Special Civil Part order dated July 6, 2011, denying her motion to vacate a default judgment pursuant to Rule 4:50–1.   The judgment was entered in favor of plaintiff New Century Financial Services, Inc. (New Century), in the amount of $3514.02.   For the reasons that follow, we reverse and remand.   New Century is the owner of Pierre's Bank of America Visa account (the Account).   On January 18, 2011, New Century filed a complaint alleging the Account was in default and the sum of $3372.52 was owed together with court costs and accruing interest.   Pursuant to Rule 6:2–3, the clerk of the Special Civil Part mailed the complaint and summons to Pierre at 1212 Schley Street, Hillside, New Jersey, by regular and certified mail.   Although the postal service attempted to deliver the certified mail on January 22, 28, and February 7, 2011, the letter was returned to the Special Civil Part marked “unclaimed” on February 10, 2011.

After plaintiff submitted a certification of proof and non-military service, default judgment was entered against Pierre on March 2, 2011.   Plaintiff then sought a wage execution order, which was issued on April 6, 2011, and served on Pierre's employer on April 14, 2011.   According to Pierre, she did not learn of the order until May 29, 2011.   On June 7, 2011, Pierre filed an objection to the wage garnishment order, claiming she “was totally unaware of [the] pending action.”   Pierre also filed a motion to vacate the default judgment together with an answer to the complaint on June 9, 2011.   In a supporting certification, Pierre stated she never resided at 1212 Schley Street in Hillside, and she “was completely unaware” of plaintiff's lawsuit until she received a copy of the wage execution order from her employer on May 29, 2011.   Pierre additionally certified there was no record that plaintiff provided her “with notice of the entry of judgment as required by Rule 6:6–3(e).”

During oral argument on July 6, 2011, the following colloquy occurred between the court and Mr. Pierre ¹ :

[THE COURT:] All right, I'll hear you on your motion to vacate.

[MR. PIERRE:] Your Honor ․ the basis for the motion to vacate is that we were unaware of the pending action against us because we were improperly served.   We weren't served.

[THE COURT:] What was improper?

[MR. PIERRE:] The notice.   We didn't receive a notice or summons, anything.

[THE COURT:] Let me ask you something.   Do you owe the money?

[MR. PIERRE:] No.

[THE COURT:] Aw, come on.

[MR. PIERRE:] No.   We, we, [are] contesting that also.   It's time-barred.

[THE COURT:] Well, how is that improper?   What was improper?

[MR. PIERRE:] They sent everything to the wrong address.   We never, ever lived at 1212 Schley [Street]․  [W]e were unaware of this matter until we got a wage execution ․ from the job.

[THE COURT:] You got it because you lived a few houses away.

․

[MR. PIERRE:] How [does] that translate that we [got] it?

[THE COURT:] And they sent it to the right address.   The mailman knew where you were living.

[MR. PIERRE:] No, sir, no.   We never got it.

On appeal, Pierre argues the court erred in denying her motion to vacate the default judgment.   Pierre maintains she was never served with the complaint and summons.   Consequently, she claims she was deprived of her “due process rights to file a timely answer in response to the complaint and to proffer a meritorious defense.”

An order denying a motion to vacate a default judgment, “should not be reversed unless it results in a clear abuse of discretion.”  U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).   Generally, applications “seeking relief from default judgments are to be ‘viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached.’ ”   Prof'l Stone, Stucco & Siding Applicators, Inc. v. Carter, 409 N.J.Super. 64, 68 (App.Div.2009) (quoting Marder v. Realty Constr.   Co., 84 N.J.Super. 313, 319 (App.Div.), aff'd, 43 N.J. 508 (1964)).   Any doubts regarding the decision should be resolved in favor of the party seeking relief.  Mancini v. EDS, 132 N.J. 330, 334 (1993) (citing Arrow Mfg. Co., Inc. v. Levinson, 231 N.J.Super. 527, 534 (App.Div.1989)).

“The technique of service of initial process in actions brought in the Special Civil Part differs substantially from the provisions of Part IV.” Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 6:2–3 (2013).   Pursuant to Rule 6:2–3(d), the clerk of the court may serve a complaint and summons within the state by certified and ordinary mail based on a mailing address provided by plaintiff's attorney.   The simultaneous mailing shall become effective unless:

[T]he 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.

[R. 6:2–3(d)(4).]

However, if default is entered in the Special Civil Part, and “process is returned to the court by the postal service subsequent to entry of default and displays any of the markings listed [in Rule 6:2–3(d)(4) ], or other reason exists to believe that service was not effected, the clerk shall vacate the default or default judgment.”   R. 6:2–3(d)(5).

In this case, the certified mailing was returned to the Special Civil Part “unclaimed,” and the ordinary mailing was not returned.   However, the mailings were improperly addressed and Pierre certified she never received the complaint and summons.   Under these circumstances, there were good reasons “to believe service was not effected.”  Ibid.

As plaintiff acknowledges, “the core issue of this appeal is due process.”   “Fundamentally, due process requires an opportunity to be heard at a meaningful time and in a meaningful manner.”  Doe v. Poritz, 142 N.J. 1, 106 (1995).   When a default judgment is procured on the basis of defective service of process, a litigant need only show excusable neglect to set aside the judgment.   Pressler & Verniero, Current N.J. Court Rules, comment 4.1 on R. 4:50–1 (2013) (citing Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L. Ed.2d 75 (1988)).  “ ‘Excusable neglect’ may be found when the default was ‘attributable to an honest mistake that is compatible with due diligence or reasonable prudence.’ ”  Guillaume, supra, 209 N.J. at 468 (quoting Mancini, supra, 132 N.J. at 335).

Pierre did not neglect her legal obligation to respond to the complaint.   Upon learning of the lawsuit, she promptly filed a motion to vacate the default judgment and wage garnishment order.   Furthermore, there is no factual support for the trial court's determination that Pierre received the complaint because the “mailman knew where [she was] living.”   Accordingly, the order denying Pierre's motion is reversed, and the matter is remanded to allow her to file a responsive pleading to the complaint.   In addition, Pierre is entitled to recover any sums garnished from her wages to satisfy the default judgment.

Reversed and remanded for further proceedings consistent with this opinion.   Jurisdiction is not retained.

FOOTNOTES

FN1. At the remand proceedings, Mr. Pierre cannot represent his wife unless he is an attorney authorized to practice in this state.   R. 1:21–1..  FN1. At the remand proceedings, Mr. Pierre cannot represent his wife unless he is an attorney authorized to practice in this state.   R. 1:21–1.

PER CURIAM