NEW CENTURY FINANCIAL SERVICES INC v. ARI BAREL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

NEW CENTURY FINANCIAL SERVICES,

INC.,

Plaintiff-Respondent,

v.

ARI BAREL a/k/a ARIEL BAREL,

Defendant-Appellant.

April 1, 2014

Argued February 24, 2014 - Decided

Before Judges Parrillo and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. DJ-271006-12.

Ari Barel, appellant, argued the cause pro se.

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

PER CURIAM

Defendant Ari Barel appeals from two orders of the Law Division, one on March 8, 2013, enforcing litigant's rights and requiring that he comply with an information subpoena within ten days, and another on April 5, 2013, denying his motion for a stay. For reasons that follow, we affirm.

The essential facts are not in dispute. On May 23, 2008, defendant opened a METRIS-HSBC credit card account. On June 21, 2010, defendant made a payment toward the outstanding balance. On January 31, 2011, the account, which had accumulated over $10,000 in debt, was charged-off. A charge-off is simply a declaration by the creditor that the debt is unlikely to ever be collected; it does not eliminate the debt.

At some point before litigation commenced, plaintiff, New Century Financial Services, Inc., purchased the credit card debt from either the original owner or subsequent owner of the debt. After acquiring the debt, plaintiff filed an action against defendant in the Special Civil Part, seeking payment of the debt of $10,971.40 plus interest. Defendant pro se answered and counterclaimed, alleging conversion, false claims, violation of the Fair Debt Collections Practices Act, emotional distress, negligent supervision and common law misrepresentation and injurious falsehood against plaintiff. Plaintiff filed a timely answer to the counterclaim.

Plaintiff ultimately moved for summary judgment and dismissal of defendant's counterclaim. Following argument on August 17, 2012, the court issued an order granting plaintiff's motion for summary judgment and dismissing defendant's counterclaim with prejudice, awarding plaintiff $11,007.32 plus costs. Defendant's subsequent motion for reconsideration was denied after argument.

Defendant did not appeal either ruling. Instead, on

October 15, 2012, he filed a motion seeking "an order for [p]laintiff to ratify commencement of the above captioned matter by proving that plaintiff is a real party in interest and has standing." Following a hearing, the court denied defendant's motion.

Thereafter, on December 26, 2012, plaintiff docketed the judgment in the Office of the Clerk of the Superior Court pursuant to N.J.S.A. 2A:18-32, in order to pursue enforcement. On February 7, 2013, after defendant failed to respond to plaintiff's post-judgment information subpoena, seeking to discover assets defendant possessed to satisfy the judgment, plaintiff filed a motion to enforce litigant's rights to compel defendant's response, pursuant to Rules 4:59-1(f) and 6:7-2(e). Defendant opposed the motion, claiming that the summary judgment order was not final and therefore that plaintiff could not collect. After hearing arguments on March 8, 2013, the court issued an order granting plaintiff's motion, concluding that defendant had violated plaintiff's rights as a litigant by failing to provide a response to an information subpoena seeking to discover details about defendant's financial situation. The order required that defendant comply with the subpoena within ten days.

Defendant failed to comply with the court's order. Instead, on March 20, 2013, he moved to stay the March 8, 2013 order pending appeal, and requested oral argument. Plaintiff opposed the motion. On April 5, 2013, defendant appeared in court, apparently seeking to argue the motion. Plaintiff was not present. The motion judge informed defendant that oral argument had not been scheduled on the motion "because [he] didn't think there was any need" based on the fact that defendant's "position remain[ed] unchanged." The court noted that defendant "believe[s] that a summary judgment is not a final judgment. [This court says] it is." The court issued an order denying defendant's motion for stay, concluding that "defendant cannot demonstrate any likelihood of success in an appeal."

This appeal follows,1 in which defendant raises the following issues:

I. IS THE SUMMARY JUDGMENT A FINAL JUDGMENT?

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND OVERSTEPPED ITS AUTHORITY [IN] MAKING A RULING THAT THERE IS A FINAL JUDGMENT IN THE INSTANT CASE.

III. DOES THE JUDGMENT DEBTOR BECOME JUDGMENT DEBTOR AT THE ENTRY OF SUMMARY JUDGMENT OR AFTER THE ENTRY OF FINAL JUDGMENT?

IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND OVERSTEPPED ITS AUTHORITY OR ERRED BY RULING AGAINST THE APPELLANT BY CONSIDERING THE APPELLANT BEING A JUDGMENT DEBTOR.

V. PURSUANT TO [RULE] 6:7-2(b), CAN INFORMATION SUBPOENA BE SERVED AFTER SUMMARY JUDGMENT BUT PRIOR TO ENTRY OF FINAL JUDGMENT?

VI. DID THE COURT ABUSE ITS DISCRETION BY GRANTING PLAINTIFF'S MOTION TO ENFORCE LITIGANT'S RIGHTS?

VII. DID THE TRIAL COURT ABUSE[] ITS DISCRETION AND OVERSTEP[] ITS AUTHORITY AND/OR ERR[] BY DENYING DEFENDANT'S MOTION TO STAY THE ORDER PENDING APPEAL, DENYING ORAL ARGUMENTS IN VIOLATION OF R. 1:6-2(5) AND FILIPPONE V. LEE, 304 N.J. SUPER. 301, 306 (APP. DIV. 1997) AND ISSUING EX-PARTE ORDER IN FAVOR OF MISSING OPPOSING PARTY[?]

VIII. WHETHER THE RESPONDENT OBTAINED FINAL JUDGMENT ON 12/26/12 AS WAS CLAIMED IN RESPONDENT['S] PLEADINGS AND ORAL ARGUMENTS.

IX. WHETHER RESPONDENT'S ATTORNEY[S] PRESSLER AND PRESSLER, LLP, A CORPORATION, CAN APPEAR IN THE COURTS OF THIS STATE WHILE NOT BEING REGISTERED WITH THE SECRETARY OF STATE IN VIOLATION OF N.J.S. 14A:4-1, N.J.S.A. 14a:17-1, 14a:17-2 AND RULE 1:21-1C.

I.

Defendant's essential argument is that plaintiff could not pursue collection of the judgment since the August 17, 2012 summary judgment was not a final order, and therefore the court erred in granting plaintiff's motion to enforce litigant's rights and denying defendant's motion for stay pending appeal.

Specifically, defendant contends the summary judgment was not final because: (1) the matter of plaintiff's request for attorney's fees on his motion to enforce litigant's rights was still outstanding; (2) the motion court did not certify its August 17, 2012 order as final; and (3) that order did not contain a fixed sum as the total judgment. Therefore, defendant argues, plaintiff had to "obtain [a] final judgment by filing a motion for final judgment for sum certain" before serving the information subpoena upon defendant. Plaintiff's failure to do so, defendant concludes, renders the orders of March 8, 2013 and April 5, 2013 invalid because they were not based on a final judgment. We disagree.

Whether a judgment is final is a legal issue and therefore we review the issue de novo. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

In order to be appealed as a final judgment, a judgment must be final as to all parties and all issues. Smith v. Jersey Cent. Power & Light Co., 421 N.J. Super. 374, 383-84 (App. Div.), certif. denied, 209 N.J. 96 (2011). A trial court order that retains jurisdiction is not final. House of Fire Christian Church v. Zoning Bd. of Adj. of Clifton, 379 N.J. Super. 526, 531 (App. Div. 2005). Additionally, a judgment will be deemed interlocutory, and not final, if an issue of attorney's fees or costs remains to be litigated. Smith, supra, 421 N.J. Super. at 383-84 (quoting Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005)) ("This rule is 'no less applicable to an appeal . . . of an issue, such as counsel fees and costs, [9] that ought to have been resolved before final appellate consideration.'"); N.J. Mfrs. Ins. Co. v. Prestige Health Grp., LLC, 406 N.J. Super. 354, 358 (App. Div.), certif. denied, 199 N.J. 543 (2009).

An order awarding "costs," rather than a specific amount may still be final. Rule 4:42-8(a), which is applicable in the Special Civil Part under Rule 6:6-1, states that "costs shall be allowed as of course to the prevailing party. The action of the [C]lerk in taxing costs is reviewable by the court on motion." This rule thus assigns the responsibility of calculating or "taxing" costs to the Court Clerk. In Smith, supra, we noted that a "provision in the order awarding plaintiffs taxed costs, without specifying the amount, would not ordinarily prevent it from being treated as final because a determination of the [306] amount of taxed costs is usually a routine ministerial function performed by the [C]lerk of the court." 421 N.J. Super. at 383. And, although we ultimately concluded that the outstanding issue of costs in that case rendered the summary judgment order interlocutory, that is because in Smith, supra, the amount of taxed costs was disputed in that the defendant opposed plaintiff's application for $50,000 in costs and the issue had to be resolved by the trial court. Id.at 383-84. In the ordinary course, however, and especially when costs are not disputed, an award of "costs" rather than a specific amount does not render the judgment interlocutory.

Pertinent here, "[a]n order granting summary judgment and disposing of the case is a final judgment . . . ." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J.369, 384 n.8 (2010). By contrast, an order granting partial summary judgment is not final but rather interlocutory in nature because the litigation is ongoing. Lombardi v. Masso, 207 N.J. 517, 535-36 (2011) (holding that a grant of summary judgment as to many but not all of the defendants in the case was only a partial grant and thus was interlocutory).

Here, we are fully satisfied that the August 17, 2012 summary judgment "in favor of [p]laintiff and against the [d]efendant in the amount of $11,007.32, plus costs" and dismissing defendant's counterclaim "with prejudice" was a final order from which an appeal could have been taken. It disposed of the entirety of the case, including plaintiff's claim for $10,993.34 plus interest and costs and defendant's six-count counterclaim, and was therefore final as to all issues and parties. See Estate of Hanges, supra, 202 N.J. at 384 n.8. Thus, unlike Lombardi, supra, 207 N.J.at 535-36, there was no ongoing litigation as to any residual claims or parties.

Moreover, the fact that the order awards a judgment of $11,007.32 plus costs does not render it interlocutory. The costs here were to be determined by the Court Clerk in his or her exercise of "ministerial duties." Thus, unlike Smith, supra, 421 N.J. Super. at 383-84, here there was no dispute requiring additional litigation or adjudication by the motion court concerning the substance of the summary judgment order.

Additionally, although a summary judgment may not be considered final if the issue of attorney's fees is reserved, seeSmith, supra, 421 N.J. Super. at 383-84, in this case plaintiff's request for attorney's fees was not part of its motion for summary judgment. Rather, plaintiff's request for attorney's fees was made only in connection with its motion to enforce litigant's rights (ELR), decided on March 8, 2013. Specifically, plaintiff's ELR motion requested that "if [defendant] fail[s] to appear in court on the date written above, [defendant] shall pay the plaintiff's attorney['s] fees in connection with this motion." (emphasis added). Thus, the request for attorney's fees did not relate to the summary judgment motion and therefore does not detract from the finality of that ruling.

Consequently, for all these reasons, the motion court correctly determined that the summary judgment of August 17, 2012 was a final order.

II.

Having correctly determined the August 17, 2012 grant of summary judgment to be a final order, subject to appropriate post-judgment efforts to effectuate its enforcement, the court properly granted plaintiff's ELR motion. Defendant's contrary claims of a lack of subject matter and personal jurisdiction are devoid of any merit.

According to N.J.S.A. 2A:18-32, "[a]ny final judgment of the Special Civil Part when not less than $ 10, including costs, remains due thereon, may be docketed by the party recovering the same, his executors, administrators or assigns, with the Clerk of the Superior Court in the manner and with the effect hereinafter provided." Subsequently, "[a] judgment docketed in the Superior Court . . . shall, from the time of its docketing, operate as though it were a judgment obtained in an action originally commenced in the Superior Court other than in the Special Civil Part." N.J.S.A.2A:18-38. A judgment thus docketed is subject to post-judgment procedures to satisfy it.

Rule 6:7-2(b)(1) allows a prevailing party in the Special Civil Part, i.e. the judgment creditor, to serve an information subpoena on the judgment debtor in order to gain information in post-judgment discovery about the debtor's assets. It provides that

[a]n information subpoena may be served upon the judgment debtor, without leave of court, accompanied by an original and copy of written questions and a prepaid, addressed return envelope. The information subpoena and written questions shall be in the form and limited to those set forth in Appendix XI-L to these Rules. Answers shall be made in writing, under oath or certification, by the person upon whom served, if an individual . . . . The original subpoena, with the answers to the written questions annexed thereto shall be returned to the judgment creditor, if pro se, or judgment creditor's attorney within 14 days after service thereof.

An information subpoena shall not be served on a judgment debtor more frequently than once in any six-month period without leave of court.

[R. 6:7-2(b)(1).]

Moreover, the answer to this subpoena must be returned within fourteen days and if the judgment debtor fails to respond to the information subpoena, the creditor may then file a motion to enforce litigant's rights, requesting that the court issue an order requiring the debtor's compliance with the subpoena. R. 6:7-2(e). If granted, the subsequent order may include provisions

(1) adjudicating that the judgment-debtor has violated the litigant's rights of the judgment-creditor by failing to comply with the order for discovery or information subpoena;

(2) compelling the judgment-debtor to immediately furnish answers as required by the order for discovery or information subpoena;

(3) directing that if the judgment-debtor fails to appear in court on the return date or to furnish the required answers, he or she shall be arrested and confined to the county jail until he or she has complied with the order for discovery or information subpoena;

(4) directing the judgment-debtor, if he or she fails to appear in court on the return date, to pay the judgment-creditor's attorney fees, if any, in connection with

the motion to enforce litigant's rights; and

(5) granting such other relief as may be appropriate.

[Ibid.]

This process is the same for judgments docketed in the Civil Part, except for different standards for service of process. R. 4:59-1(f) ("In aid of the judgment or execution, the judgment creditor . . . may proceed as provided by R. 6:7-2, except that service of an order for discovery or an information subpoena shall be made as prescribed by R. 1:5-2 for service on a party. The court may make any appropriate order in aid of execution . . . ."). And, Rule 1:5-2 provides that service on a party "shall be made . . . by registered or certified mail, return receipt requested, and simultaneously by ordinary mail to the party's last known address." Furthermore, if the certified mail service is refused, then service can be made by ordinary mail only. R. 1:5-4(a) ("Service by Ordinary Mail If Registered or Certified Mail Is Required and Is Refused. Where under any rule, provision is made for service by certified or registered mail, service may also be made by ordinary mail simultaneously or thereafter, unless simultaneous service is required under these rules.").

Here, plaintiff followed proper post-judgment procedures to enforce its judgment. After final judgment was entered in the Special Civil Part on August 17, 2012, plaintiff served an

information subpoena on defendant on August 30, 2012. This was done in compliance with Rule 6:7-2(b)(1). Defendant did not respond within fourteen days. Although plaintiff could have proceeded with enforcement via a motion under Rule 6:7-2(e), instead, on December 26, 2012, plaintiff docketed the judgment in the Office of the Clerk of the Superior Court. By this action, pursuant to N.J.S.A. 2A:18-32 and 2A:18-38, the judgment moved to the Civil Part and was subject to its rules for enforcement. Subsequently, complying with Rule 4:59-1(f), plaintiff properly filed a motion to enforce litigant's rights following the same procedure outlined in Rule 6:7-2(e). Because plaintiff followed these procedures, the Civil Part had jurisdiction to hear its motion for litigant's rights.

Furthermore, the court correctly granted plaintiff's ELR motion. Although defendant argued at the March 8, 2013 hearing that he had never received the information subpoena, the court found that the document had been sent by regular mail and certified mail to defendant's home address. The court also found that the certified letter was returned unclaimed, the regular mail had not been returned, and thus that service was proper. The court specifically noted "if the regular mail doesn't come back, . . . [and] the certified mail comes back unclaimed, service has been made" under the rules. The court thus correctly determined that proper service of the information subpoena had been made under Rules 1:5-2 and 1:5-4(a), and further that defendant had failed to answer. Under Rule 6:7-2(e), plaintiff was thus entitled to relief in the form of an order directing defendant to comply, which was effectuated in the court's March 8, 2013 order.

III.

We also discern no error in the April 5, 2013 denial of defendant's motion for a stay of the March 8, 2012 order.

In deciding whether to grant a stay, a court employs the standard set forth in Crowe v. De Gioia, 90 N.J. 126, 132-34 (1982). "A party seeking a stay must demonstrate that (1) relief is needed to prevent irreparable harm; (2) the applicant's claim rests on settled law and has a reasonable probability of succeeding on the merits; and (3) balancing the 'relative hardship[s] to the parties reveals that greater harm would occur if a stay is not granted than if it were.'" Garden St. Equality v. Dow, 216 N.J. 314, 320 (2013) (quoting McNeil v. Legis. Apportionment Comm'n, 176 N.J. 484, 486 (2003) (LaVecchia, J., dissenting) (citing Crowe, supra, 90 N.J. at 132-34)). The moving party must prove each Crowe factor by clear and convincing evidence in order to prevail. Brown v. City of Paterson, 424 N.J. Super. 176, 183 (App. Div. 2012). Generally, all the Crowe factors must weigh in favor of granting the stay in order for the movant to get relief. McKenzie v. Corzine, 396 N.J. Super. 405, 414 (App. Div. 2007).

Defendant has failed to demonstrate any let alone all of the Crowe factors. No irreparable harm befalls defendant by denying relief. The March 8, 2013 order merely requires defendant to comply with the information subpoena by "immediately furnish[ing] answers" thereto. Although the order also provides for the issuance of a warrant if defendant does not comply, this result could be avoided simply by defendant's compliance with the order. And, providing responses to the information subpoena would not result in any harm since the underlying summary judgment itself may no longer be appealed and thus enforcement would go forward regardless of the result of this appeal.

Defendant has also failed to show he has a reasonable probability of success on the merits since, as the motion judge properly pointed out, settled precedent well establishes that a summary judgment order disposing of all claims by all parties is final. And lastly, defendant cannot demonstrate that a greater harm will befall him if a stay is not granted. On this score, we discern no hardship in defendant providing information about his financial condition pursuant to a lawfully issued information subpoena; in contrast, a stay would unnecessarily delay plaintiff's collection efforts on a judgment that is not on appeal. Thus, the balance of relative hardships hardly favors defendant. Having failed to establish any of the Crowe factors, defendant's application for a stay of the March 8, 2013 order was properly denied.

IV.

We are satisfied defendant's remaining arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

1 On May 21, 2013, plaintiff filed a motion seeking to dismiss defendant's appeal as untimely, in that defendant challenged the summary judgment order of August 17, 2012. On June 12, 2013, we issued an order restricting defendant's appeal to the March 8, 2013 and April 5, 2013 orders.