NCO PORTFOLIO MANAGEMENT v. EDWIN LORENZO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0331-09T3

NCO PORTFOLIO MANAGEMENT,

assignee of CHASE,

Plaintiff-Respondent,

v.

EDWIN LORENZO,

Defendant-Appellant.

________________________________________________________________

September 10, 2010

 

Submitted August 3, 2010 - Decided

 

Before Judges Axelrad and Espinosa.

 

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DC-15062-07.

 

Edwin Lorenzo, appellant pro se.

 

Goldman & Warshaw, P.C., attorneys for respondent (Carl E. Zapffe, on the brief).

 

PER CURIAM

Defendant has been incarcerated at East Jersey State Prison since 2002. In 2007, plaintiff, as assignee of Chase Manhattan Bank, N.A. (Chase), filed a complaint against Edwin Lorenzo and allegedly served him by mailing the complaint by ordinary and certified mail to an address in Woodbridge and thereafter obtained a default judgment. Defendant appeals from the denial of his motion to vacate the default judgment. We reverse and remand.

The summons and complaint were mailed to Edwin Lorenzo at the Woodbridge address pursuant to R. 6:2-3(d)(1). The Rule states, "Attorneys shall submit to the clerk the mailing addresses of parties to be served." In the certification of service of process later submitted by counsel, the basis for the address provided was set forth in apparently boilerplate language as follows:

2. At the time the defendant(s) account was placed with our office for handling, our client and/or their agent provided us with certain information regarding its claim against the defendant(s). The information included but is not limited to the defendants(s) last known address.

 

3. This office also attempted to verify the address through one of several methods which may include telephone calls, a postal search, credit report, address database and other proprietary address confirmation methods.

 

[(Emphasis added).]

Although paragraph 3 identified a number of available methods for confirmation of the address, it failed to identify what was attempted, when the attempt was made, or what information was obtained from the attempt. As a result, paragraph 3 adds little, if anything, to verify that the Woodbridge address would be effective for service upon defendant. We are then left with the representation that the address was provided as the last known address by Chase. Plaintiff did not provide a copy of a billing statement showing defendant's address. Although the certification states that this information was provided at the time that the account was placed with plaintiff for collection, no date was given for that placement and so, it is unknown how old the information was. However, because the copy sent by certified mail was returned as "unclaimed" and the copy sent by ordinary mail was not returned to the court, defendant was deemed to be personally served pursuant to R. 6:2-3(d)(4).

Thereafter, plaintiff served defendant with its application for default judgment, mailing it to defendant by ordinary mail at the Woodbridge address. A copy of the judgment and an information subpoena were served by certified and ordinary mail to the Woodbridge address. Plaintiff also filed a motion to enforce litigant's rights, again serving plaintiff by certified and ordinary mail to the Woodbridge address. In each instance, the mail sent by certified mail was returned as "unclaimed" and the ordinary mail was not returned.

In June 2009, defendant filed a motion to vacate the default judgment. He submitted a certification in support of the motion in which he stated that he became aware of the judgment against him when he ordered a credit report in May 2009 and learned that plaintiff's counsel had requested a credit report. He wrote to plaintiff's counsel, asking why the report had been requested. In response, plaintiff's counsel advised that the report had been requested as part of an effort to collect the amount due on a defaulted credit card account that had been opened in March 1997 and identified the account number.

Defendant's certification also stated that he had never received any notice about the debt from plaintiff's law firm since his incarceration and that he has "never lived at that address, nor have I ever provide[d] that address to anyone."1

Defendant's motion was denied in an order that bore the explanation, "No meritorious defense plead [sic]." A subsequent motion for reconsideration was denied as well.

In seeking to vacate the default judgment, defendant had the burden of demonstrating that his failure to answer or otherwise appear and defend should be excused. Jameson v. Great Atlantic and Pacific Tea Co., 363 N.J. Super. 419, 425-26 (App. Div. 2003). The decision whether to grant such a motion is left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion. Mancini v. Eds ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). However, "[a] court should view 'the opening of default judgments . . . with great liberality,' and should tolerate "every reasonable ground for indulgence . . . to the end that a just result is reached." Ibid. (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). "[A]ll doubts . . . should be resolved in favor of the parties seeking relief." Ibid.

The question here is whether defendant's contention that he was not served with process excuses his failure to answer or otherwise appear based on the facts of this case.

The "'elementary and fundamental requirement of due process . . . is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.'" O'Connor v. Altus, 67 N.J. 106, 126 (1975) (quoting Mullane v. Central Hanover B. & T. Co., 339 U.S 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865, 873 (1950)). The constitutional requirement of due process does not mandate perfect service, but it does contemplate effective service. Coryell, L.L.C. v. Curry, 391 N.J. Super. 72, 81 (App. Div. 2006). Therefore, while default judgments will not be vacated for minor flaws in the service of process, Sobel v. Long Island Entertainment Products, Inc., 329 N.J. Super. 285, 293 (App. Div. 2000), where "a substantial deviation from service of process rules has occurred, casting reasonable doubt on proper notice," the affected parties have been denied due process and the judgment should be vacated. Coryell, supra, 391 N.J. Super. at 80 (quoting Jameson, supra, 363 N.J. Super. at 425).

Pursuant to R. 6:2-3(d)(4), service by mail is deemed effective "consistent with due process of law . . . unless the mail has been returned to the post office with a marking indicating that it has not been delivered . . . or the court has other reason to believe that service was not effected." (Emphasis added). While the available information regarding service by mail gave no reason to believe that service was not effected when default was entered, the circumstances changed when defendant submitted his certification in support of his motion to vacate default judgment. The fact that defendant was continuously incarcerated from 2002 until he filed his motion in 2009, coupled with his denial that he ever resided at or used the Woodbridge address, cast reasonable doubt on the effectiveness of service.

The trial court acknowledged such doubt, stating, "I would be inclined, . . . since he has been incarcerated since 2002 I'm going to have to assume that he may not have gotten service." Nonetheless, the court then denied defendant's motion because no meritorious defense was asserted. Although it is customarily required to assert a meritorious defense in order to obtain relief from a judgment, see Mancini, supra, 132 N.J. at 335, the failure to assert a meritorious defense is not essential if there is a constitutional defect in process. When "a default judgment is taken in the face of defective personal service, the judgment is generally void and a meritorious defense is not required to vacate the judgment under R. 4:50-1(d)." Jameson, supra, 363 N.J. Super. at 425.

I

n short, the proof that service was effected rested upon the fact that mail sent to an address of unknown vintage was not returned. The undisputed fact is that even if defendant ever resided or received mail at that address, he was incarcerated for five years before service was attempted. We are satisfied that sufficient doubt was cast upon the effectiveness of the service to render it constitutionally infirm. Since it was therefore unnecessary to assert a meritorious defense, default judgment should have been vacated and the trial court's failure to grant the motion constituted an abuse of discretion. See Jameson, supra, 363 N.J. Super. at 430.

Reversed and remanded.

1 Although not in the record before the trial court, a credit report dated May 2009 submitted on appeal and not objected to by plaintiff reports that defendant's current address is a post office box in Toms River (reported in September 1999) and that his previous addresses were in Carteret (reported in December 1996) and in Colonia.