LVNV FUNDING, LLC v. DOLORES DiCICCO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5367-08T35367-08T3

LVNV FUNDING, LLC,

Plaintiff-Respondent,

v.

DOLORES DiCICCO,

Defendant-Appellant.

_________________________________________________

 

Submitted June 9, 2010 - Decided

Before Judges Fisher and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, Docket No. DC-002176-08.

McDonnell & Associates, P.C., attorneys for appellant (Lindsey S. Forshay, of counsel and on the brief).

Forster Garbus and Garbus, attorneys for respondent (Glenn S. Garbus, on the brief).

PER CURIAM

In this appeal, defendant argues the trial judge erred in denying her second motion to vacate a default judgment and in permitting the turnover of levied funds to plaintiff. In adhering to the well-established principle that "the opening of default judgments should be 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), we reverse.

The record reveals that plaintiff filed this action against defendant in the Special Civil Part on February 11, 2008. A few months later, on May 19, 2008, judgment by default was entered in favor of plaintiff in the amount of $2,286.27. The pro se defendant later wrote to the court, challenging plaintiff's right to judgment; her letter was stamped by the clerk as "non-conforming."

In July, plaintiff filed a notice of application for a wage execution. Defendant wrote to the trial court in advance of the hearing, claiming she was being unlawfully harassed by plaintiff's representatives; the clerk also marked this letter as "non-conforming." On August 14, 2008, the judge ordered a wage execution.

On August 25, 2008, defendant filed a pro se motion to vacate the default judgment. Again defendant's papers were stamped "non-conforming," this time because she failed to file proof of service. Defendant corrected this deficiency by filing a certification of service a short time later. Meanwhile, despite the pendency of the motion to vacate, plaintiff continued to execute on defendant's wages.

Defendant's motion to vacate the default judgment was finally heard and granted on October 24, 2008. The judge's order directed defendant to file an answer within thirty days and permitted a brief period of discovery.

An answer dated November 24, 2008 was marked as "non-conforming" by the clerk on December 16, 2008. In a later letter, the clerk indicated the answer was inadequate because defendant failed to include a proposed answer and a filing fee with her motion to vacate default judgment and because she failed to provide proof of service of the answer.

Apparently without the entry of a new default judgment, plaintiff continued to rapidly obtain the means to continue execution on the May 19, 2008 default judgment. A writ of execution was issued on December 24, 2008, and an order entered for the execution against goods and chattels on January 2, 2009.

On January 7, 2009 defendant filed another pro se motion to vacate the default judgment. This motion was denied, without explanation, on January 22, 2009. Later, an order was entered on April 17, 2009 that authorized the court officer to turnover funds to plaintiff.

Defendant appealed, seeking the vacation of the orders of January 2, January 22, and April 17, 2009. In response, plaintiff has made no attempt to support the sufficiency of the proceedings that led to the orders in question, but merely argues the matter is moot because the levied funds have been returned to defendant.

Plaintiff's mootness argument is without merit. That plaintiff may have returned levied funds to defendant does not moot defendant's appeal. So long as plaintiff possesses the judgment and maintains the right to collect on it in the future, defendant is entitled to a disposition of this appeal on its merits.

We also agree with defendant that there should have been no further collection on the judgment once her initial motion to vacate the default judgment was granted on October 24, 2008. The record on appeal leads us to conclude that the clerk refused to file her answer based upon clerical reasons that were either incorrect or inconsequential. As noted above, the clerk took the position that defendant failed to provide proof of service of her answer, but the answer contains her certification that the answer was served on plaintiff, and defendant soon thereafter provided additional proof of her service of the answer. The clerk also suggested some insufficiency in defendant's motion to vacate the default judgment -- that she had not included a proposed answer and filing fee as required by R. 6:3-3(e) -- but the judge expressed no concern about the adequacy of defendant's papers when he granted the motion.

 
In short, the clerk's reasons for refusing to file defendant's answers were, at best, purely technical and should not have led to defendant again being put in default. The record on appeal does not suggest a valid reason for defendant being put to the trouble of moving again for relief from the default judgment. The record also presents no legitimate reason for the denial of defendant's second motion to vacate the default judgment. Adherence to the liberality warranted by the circumstances, Marder, supra, 84 N.J. Super. at 319, required the granting of that motion. We, thus, reverse the order that denied defendant's second motion to vacate the default judgment, vacate the orders that followed, and remand for further proceedings. We do not retain jurisdiction.

The record does not reveal when or how defendant presented her answer to the clerk for filing.

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A-5367-08T3

June 22, 2010