NEW CENTURY FINANCIAL SERVICES, INC v. BUTHAINA KHALIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6180-06T26180-06T2

NEW CENTURY FINANCIAL SERVICES, INC.,

Plaintiff-Respondent,

v.

BUTHAINA KHALIL,

Defendant-Appellant.

________________________________

 

Argued January 27, 2009 - Decided

Before Judges Wefing and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DC-2969-03.

Buthaina Khalil, appellant pro se, filed a brief.

Lawrence J. McDermott, Jr., argued the cause for respondent (Pressler and Pressler, L.L.P., attorneys; Mr. McDermott, on the brief).

PER CURIAM

Defendant Buthaina Kahlil appeals from the April 13, 2007 order of the Special Civil Part denying her motion to vacate a default judgment against her and to rescind a Writ of Execution upon certain personal property belonging to her. For the reasons that follow, we affirm.

On or about December 27, 2002, plaintiff, New Century Financial Service, Inc., sued defendant on a credit card debt. The record contains proof of service of that lawsuit upon defendant in the form of an Automated Case Management System (ACMS) print-out showing service upon Buthaina Kahlil on February 26, 2003. Defendant failed to file an answer, and on June 6, 2003, plaintiff obtained a default judgment against her in the amount of $7,206.64.

Between September 24, 2003 and August 16, 2006, plaintiff served three information subpoenas on defendant, for the purpose of discovering her income and assets in order to execute upon the default judgment. Defendant completed, signed and returned all three subpoenas to the office of plaintiff's attorney.

As a result of information obtained from those subpoenas, plaintiff filed a Writ of Execution upon defendant's automobile and personalty. On December 20, 2006, a court officer levied upon defendant's 1995 Ford Escort.

On March 12, 2007, defendant filed a motion to vacate the default judgment and to rescind the Writ of Execution on her automobile. Defendant certified that she had "no information or knowledge of th[e] lawsuit." She further claimed that she had "not opened any credit cards since the early [']90's and [had] closed all of the cards by January 2000[,] [and] . . . had credit protection insurance on all [her] cards." Defendant asserted that she "never heard about this [credit] card or [plaintiff] before."

Plaintiff argued in opposition that defendant had failed to seek relief within a reasonable time, and had failed to establish "excusable neglect" as required by Rule 4:50-1(a).

In reply, defendant certified that she first became aware of this matter on March 7, 2007, when she received a letter from the Department of Motor Vehicles informing her of the levy upon her automobile. She claimed that she was "not in receipt of any contract making [her] liable to any other party."

On the return date of her motion, April 13, 2007, plaintiff appeared but defendant failed to appear. The court ruled: "It's a motion and the moving party has not appeared. It is now 11:25 a.m. [a]nd the motion is denied. And there was no excusable neglect. . . . [S]o it's denied."

On appeal, defendant argues that the trial court erred in denying her motion to vacate the default judgment because: (1) plaintiff failed to produce proof to support its claims; (2) defendant was not properly served with the complaint; (3) the court should have considered defendant's representation as a pro se litigant; and (4) the court erred in denying her motion due to her absence on April 13, 2007, because she had "wr[itten] in the motion papers that [she is] [d]isabled and [would] not be able to [a]ttend any [h]earing."

At the outset, we note that an application to vacate a default is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). However, "a defendant seeking to reopen a default judgment must show that the neglect to answer was excusable under the circumstances and that [s]he has a meritorious defense." Id. at 318.

Rule 4:50.1 sets forth the various conditions under which a party may obtain relief from a final judgment or order, including

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial . . . ; (c) fraud . . . , misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

Defendant does not address Rule 4:50-1 in her brief. Her first argument is addressed to the merits of plaintiff's original complaint upon the credit card debt. Nothing in the record before us presents any basis for relief on this claim.

In her second point, defendant apparently intends to argue "excusable neglect" by claiming that she was not "properly served, notified or informed [of] the . . . [l]aw [s]uit." However, as noted, the record contains a court-generated ACMS record of service upon defendant in the matter of "New Century Financial Services, Inc. v. Buthaina Kahlil," on February 26, 2003. Moreover, as also noted, plaintiff served three information subpoenas on defendant between September 24, 2003 and August 16, 2006. Defendant completed and returned each subpoena in a self-addressed envelope provided by plaintiff's attorneys. At no time did defendant contact those attorneys to inquire into the nature and purpose of the documents she executed.

Defendant next argues that, as a pro se litigant, she "should be held to a lesser standard than . . . lawyers . . . ." Defendant cites Hughes v. Rowe, 449 U.S. 5, 15, 101 S. Ct. 173, 179, 66 L. Ed. 2d 163, 172 (1980), for the proposition that "[a]n unrepresented litigant should not be punished for h[er] failure to recognize subtle factual or legal deficiencies in h[er] claims." This argument ignores the fact that any party seeking relief from a default judgment must satisfy certain specific standards. Defendant's burden here was to establish "excusable neglect" for her failure to answer the complaint. R. 4:50-1(a). Considering the proof of service noted, as well as her compliance with three subsequent information subpoenas, we find no fault with the trial court's conclusion that defendant failed to meet this burden. "The decision on whether to vacate a judgment under the terms of [Rule 4:50-1] is left to the sound discretion of the trial court and will not be overturned on appeal absent a mistaken exercise of that discretion." Nowosleska v. Steele, 400 N.J. Super., 297, 302 (App. Div. 2008) (citing Mancini v. EDS, 132 N.J. 330, 334 (1993)).

Finally, defendant argues that the trial court erred in denying her motion "due to [her] [a]bsence" on April 13, 2007. Defendant contends that she "wrote in the motion papers that [she is] [d]isabled" and, therefore, would "not be able to [a]ttend any court hearing." We note, however, that in her certification, defendant supported her request to rescind the levy upon her automobile with the claim that she used her car "to go to and from the hospitals and the doctors[,] for [she is] disabled and needs a lot of frequent medical attention and tests. Without the car [she] would not survive." This statement does not indicate a disability preventing defendant from attending a court hearing. In fact, it gives rise to an inference that she is able to travel to appointments notwithstanding her disability. Moreover, in that same certification, defendant specifically requested oral argument if her motion was opposed. Thus, we conclude that defendant's own certification is inconsistent with the contentions she now raises on appeal.

Having considered defendant's arguments in light of the record and controlling law, we conclude that her claims are without merit, as she has failed to establish "excusable neglect" that would warrant relief from plaintiff's default judgment. R. 4:50-1(a).

Affirmed.

Defendant did not appear for oral argument.

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A-6180-06T2

April 15, 2009