AMERICAN EXPRESS CENTURION BANK v. ERIC KALUGIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1688-10T4

AMERICAN EXPRESS CENTURION BANK,

Plaintiff-Respondent,

v.

ERIC KALUGIN,

Defendant-Appellant.

________________________________________

April 11, 2012

 

Submitted March 6, 2012 - Decided

 

Before Judges Payne and Accurso.

 

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-3221-09.

 

Eric Kalugin, appellant pro se.

 

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

PER CURIAM

Defendant Eric Kalugin appeals from a November 3, 2010 order denying his motion for reconsideration of a motion to vacate a default judgment for $24,995.91, entered on behalf of plaintiff American Express Centurion Bank on a credit card debt. We affirm.

Plaintiff filed its complaint in the Law Division on October 1, 2009. The return of service filed with the court reveals that defendant was personally served with the summons and complaint, at his home address, by a Morris County Sheriff's Officer on November 10, 2009. Defendant failed to file an answer. Plaintiff requested entry of default on January 26, 2010; simultaneously serving defendant with its request at the same address at which service was effected. Default was entered on January 28, 2010.

On February 8, 2010, the court received a letter from defendant opposing entry of default and requesting "[a]n Enlargement of Time to answer and defend the Summons, since I do not owe the debt and my signature does not appear on the alleged contract or I.O.U. debt," and a motion for default judgment from plaintiff. Defendant did not respond to plaintiff's motion and the court entered final judgment by default on February 16, 2010. On February 18, 2010, Judge Stephan Hansbury wrote to defendant in response to his letter of February 8, 2010, advising that default judgment had been entered and that if defendant wished to answer and defend the action that he would have to file a motion in accordance with the Court Rules.

Defendant filed a motion to vacate the judgment on March 10, 2010, contending that plaintiff failed to produce the "REQUIRED original Contract with [defendant's] signature on it in Blue Ink," as well as any proof that plaintiff was the "actual Original Contract Holder." Plaintiff opposed the motion contending that defendant had failed to show either excusable neglect or a meritorious defense as required under R. 4:50-1. Plaintiff also submitted its monthly billing statements to defendant for the billing period ending May 23, 2008 through the period ending June 23, 2009.

Judge Hansbury denied the motion on May 3, 2010. In an accompanying statement of reasons, the judge wrote that defendant had failed to provide any explanation as to why he failed to file a timely responsive pleading and thus failed to show excusable neglect. Judge Hansbury further found that defendant had not proffered a meritorious defense by simply claiming that "plaintiff has not produced enough 'evidence' to support its claim." Relying on Novack v. Cities Serv. Oil Co., 149 N.J. Super. 542, 548 (Law Div. 1977) aff'd, 159 N.J. Super. 400 (App. Div.), certif. denied, 78 N.J. 396 (1978), the court held that defendant's use of the credit card, for which he received monthly billing statements, created the contract between the parties and that plaintiff need not show the sort of proof defendant demanded in order to prove its claim.

Defendant filed a motion for reconsideration on July 30, 2010, claiming that his "Due Process Rights were violated by not being served with the Summons according to New Jersey Court Rule 1:5-1." Plaintiff opposed the motion. Judge Hansbury denied defendant's reconsideration motion on November 3, 2010 as untimely pursuant to R. 4:49-2 and not directed to what defendant believed the court had overlooked or how it had erred. As to defendant's reference to R. 1:5-1, Judge Hansbury wrote, "[t]hat Rule does not apply to serving a Summons. No further explanation was offered so the Court is unable to determine the basis upon which defendant seeks this relief." This appeal followed.

We note at the outset that defendant has limited his appeal to the November 3, 2010 order denying his motion for reconsideration. See Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66, (App. Div.), aff'd o.b., 138 N.J. 41 (1994) (appellate review limited to issues included in notice of appeal). Both his notice of appeal and case information statement make plain that defendant appeals only from the November 3, 2010 order and not the May 3, 2010 order denying his motion to vacate the default judgment. Accordingly, as the motion for reconsideration did not implicate the substantive issues underlying the default judgment, those issues are not properly before us and we will limit our consideration to the November 3, 2010 order only. Fusco v. Newark Bd. of Educ., 349 N.J. Super. 455, 460-62 (App. Div.), certif. denied, 174 N.J. 544 (2002).1

We review a trial court's denial of a motion for reconsideration for abuse of discretion. Id. at 462. Here, Judge Hansbury was correct that defendant's motion was untimely filed. Rule 4:49-2 provides:

Except as otherwise provided by R. 1:13-1 (clerical errors) a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.

T

he order denying defendant's motion to vacate the default judgment was filed on May 3, 2010 and served on defendant by the court. Defendant's motion for reconsideration was not filed until July 30, 2010, well beyond the twenty-day limit of the Rule. Neither the parties nor the court may extend the time for filing a motion for reconsideration. R. 1:3-4(c); see Bauman v. Marinaro, 95 N.J. 380, 388-89 (1984)(trial court is without authority to extend time periods included in R. 1:3-4(c)). Accordingly, Judge Hansbury did not abuse his discretion in denying defendant's reconsideration motion as untimely.2

Affirmed.

1 We are satisfied that if the order denying the motion to vacate the default judgment were properly before us that we would not find error. Judge Hansbury correctly found that defendant did not show either excusable neglect or a meritorious defense as required under R. 4:50-1. There is ample evidence on this record that defendant used the credit card plaintiff issued to him, was billed for charges, and made payments on the account before defaulting. Novack, supra, 149 N.J. Super. at 548. As plaintiff was the issuer of the credit card and the monthly billing statements were before the court on the motion to vacate the default judgment, the concerns we raised in LVNV Funding, L.L.C. v. Colvell, 421 N.J. Super. 1, 6-8 (App. Div. 2011), decided after Judge Hansbury denied the motion to vacate default judgment, are not implicated.

2 There also appears to be no merit in the argument defendant raises regarding service of process. Defendant complains that the return is defective as the sheriff's officer only certifies that she served defendant by delivering to him, personally, a copy of the summons and complaint and not describing his appearance. There is no requirement in our Rules that the person serving process describe a person served personally. See R. 4:4-7. Further, this issue could not be properly raised on the motion for reconsideration as it was available to defendant when he filed his motion to vacate the default judgment but not addressed to the court on that motion. Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). Moreover, the proof of service filed by plaintiff, being facially valid, raised a presumption of service on defendant rebuttable only by clear and convincing evidence. R. 4:4-7; Garley v. Waddington, 177 N.J. Super. 173, 180-81 (App. Div. 1981). Defendant's suggestion that "[i]t is possible that the process server . . . left the summons on the doorstep or . . . with someone who was not permitted to accept service of process" falls well below that standard.