MERCER COUNTY BOARD OF SOCIAL SERVICES v. MARLENE THOMAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5017-04T25017-04T2

MERCER COUNTY BOARD OF SOCIAL

SERVICES,

Plaintiff-Respondent,

v.

MARLENE THOMAS,

Defendant-Appellant.

___________________________________

 

Submitted December 21, 2005 - Decided May 3, 2006

Before Judges Wefing and Wecker.

On appeal from the Superior Court of New

Jersey, Law Division, Special Civil Part,

Mercer County, DC-4493-00.

Dechert, L.L.P., attorneys for appellant (Donald C.

Le Gower, on the brief).

Markowitz Gravelle, attorneys for respondent

(Michael J. O'Donnell, on the brief).

PER CURIAM

Defendant, Marlene Thomas, appeals an order denying her motion to vacate a default judgment awarding $6,295.72 to plaintiff, Mercer County Board of Social Services, on its claim for overpayment of benefits.

The judge who denied defendant's motion gave virtually no reason for his decision, other than the observation that defendant did not disclose to her attorneys all of the "detailed history" of the Board's previous collection efforts against her. In his abbreviated oral decision denying relief, the judge noted that a prior claim by the Board for overpayment of benefits resulted in defendant's criminal prosecution, a guilty plea, and restitution which was fully paid.

The default judgment in issue was entered on September 16, 2000. Defendant's Rule 4:50-1 motion was filed on February 22, 2005. In support of her motion, defendant submitted her certification, which included her contention that she never received the summons and complaint in this matter, and that she first learned about the suit in the summer of 2004, as a result of the garnishment of certain "government refund checks." The only evidence of service was the Special Civil Part summons. The summons includes a certificate of mailing dated August 23, 2000, alleging mailing on that date by "regular and certified mail, return receipt requested." No return receipt appears in the record, although the summons does show defendant's correct address.

The Board's August 17, 2000 complaint alleged overpayment of benefits in 1988, 1994, and 1995, totaling $6,295.72. It is undisputed that prior to this complaint, defendant had repaid $1,397 claimed by the Board. Defendant also maintains that she was in communication with an employee of the Board in 2001, and that she was assured that she had repaid all amounts due as of that time.

The material facts set forth in Ms. Thomas's certification in support of her Rule 4:50-1 motion included:

2. I am a lifelong resident of Mercer County. I currently reside at 312 Berwyn Ave., Trenton, New Jersey, and I have resided at this address for approximately 6 years, since 1998.

3. From 1979 to 1995, I received various forms of public assistance from the Mercer County Board of Social Services (the "County") during periods when I was either unemployed or was employed as part-time seasonal help.

4. In March 1999, I received notice that my Federal Income Tax Return check was being withheld at the request of the County in order to offset $2140.00 in welfare overpayments. See March 19, 1999 Correspondence from the Department of Treasury, attached as Exhibit A.

5. At this time, I contacted the County Welfare Department to determine why monies were being taken by the County. According to County employee, Eric Tibbs ("Mr. Tibbs"), the County overpaid me while I was working a seasonal job at K-Mart. During this time (March 1999), is when I first became aware of a 1997 judgment against me for these alleged overpayments. See March 17, 1999 CIS Information Services Explanation Letter, attached as Exhibit B.

6. Upon learning of these overpayments and of the 1997 judgment against me, I worked with Mr. Tibbs to repay approximately $1397 in overpayments from the withholding of my 1999 and 2000 Federal Income Tax Return checks, and the withholding of my 2000 N.J. Saver Rebate and 2000 N.J. Homestead Rebate. See Exhibit A; August 30, 2001 Correspondence regarding 2000 N.J. Saver Rebate, attached as Exhibit C; July 12, 2001 Correspondence regarding 2000 Homestead Rebate, attached as Exhibit D.

7. After these payments were rendered, I was told by Mr. Tibbs in 2001 that I had satisfied my repayment obligation to the County.

8. I now understand that on August 17, 2000, the County filed another civil suit against me in this Court alleging I received an overpayment of public aid at various times from 1988 to 1995.

9. I only became aware of the suit in the Summer of 2004 when the County again began garnishing my government refund checks. Prior to this time, I had no knowledge of the claim against me. I received no correspondence or other communication from the County regarding the suit. I was never personally served at my home, or elsewhere. I never received or saw a copy of the Complaint until the Summer of 2004.

10. During the time the lawsuit was filed, August 2000, my husband and I were separated and he was not living at the Berwyn Ave. address. He was, however, unlawfully taking mail delivered to me at that address.

11. Now, I understand that an entry of judgment by default was entered against me by the Court on September 16, 2000.

12. I understand that a default judgment in the amount of $6484.63 was entered against me on September 16, 2000. That amount apparently includes $6295.72 in overpayments, $48 in court fees, and $140.91 in attorney's fees. According to the "Affidavit of Proof" filed with the Court on September 15, 2000, my account was credited for all payments, counterclaims and set-offs. See Affidavit of Dina Sorgler, 4, attached as Exhibit E. However, I dispute both the total amount owed and that all prior payments were credited to my account.

13. Had I known that this action was pending against me in August 2000, I would have defended the action by challenging the basis for the determination of liability and the calculations of damages.

14. Since learning about this judgment, I have attempted to learn the facts underlying the County's case against me. In the Summer of 2004, when the County started to withhold government refund checks again, I was told by the County that the alleged welfare overpayments were due to the failure to disclose a bank account held in my children's names from 1984 through 1994. See September 19, 1995 Correspondence to Meridian Bank from the Mercer County Board of Social Services, attached as Exhibit F. However, as I tried to explain to the County employees, the bank account was held by my former mother-in-law, Mrs. Dora Thomas, not my daughter, who is named Dora Marie Thomas.

15. Unfortunately, my efforts have been stonewalled by County employees, who have taken the position that the case is closed. They have informed me that I owed the County more money, but have failed to explain why more money is owed or why these alleged overpayments were not resolved by the early repayments in 1999-2001. For example, when I requested information about this case, I was served with a subpoena and told to retain an attorney. See June 24, 2004 Subpoena, attached as Exhibit G. Moreover, the County has flatly refused to give me an up-to-date accounting for the money they have taken and applied to these alleged overpayments.

Simultaneous with her motion to vacate the default judgment, defendant attempted to file an answer, in which she asserted that the Board's claims were barred by the doctrine of laches, applicable statutes of limitations, the entire controversy doctrine, and the doctrine of equitable estoppel.

There is little doubt that defendant has had a long history of issues concerning her receipt of benefits and overpayments thereof. Nonetheless, the trial judge failed to address the question of service, which obviously goes to the essence of due process, and implicitly rejected defendant's contention that she was never served. The judge apparently rejected as well the merits of defendant's alleged affirmative defenses, based upon her prior history. We cannot affirm either aspect of those rulings.

Apart from the question whether Ms. Thomas received the Board's complaint in 2000, we are convinced that Ms. Thomas's request for relief should have been granted under Rule 4:50-1(f), the boundaries of which are to be drawn broadly enough to achieve justice. E.g., Community Realty Mgmt., Inc. v. Harris, 155 N.J. 212, 236-38 (1998); Mancini v. EDS, 133 N.J. 330, 336 (1993). Nor is the passage of time from entry of the default judgment to the filing of Ms. Thomas's motion four-and-one-half years unreasonable under the circumstances. See R. 4:50-2.

We are convinced that under all the circumstances, the judgment must be vacated and the Board's complaint and defendant's responses addressed on the merits. See R. 4:50-1(f). We express no opinion on the merits of the case, but hold only that fairness requires a full hearing.

Reversed and remanded for further proceedings consistent with this opinion.

 

Ms. Thomas certified that she was in contact with a Board employee named "Eric Tibbs." The Board's response was that it had no employee by that name. Ms. Thomas's reply was that she may have gotten the employee's name wrong over the phone, but the substance of the assurance she described was accurate.

(continued)

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A-5017-04T2

May 3, 2006