NEW JERSEY HIGHER EDUCATION ASSISTANCE AUTHORITY v. JEAN AMAGSILA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5997-11T4

NEW JERSEY HIGHER EDUCATION

ASSISTANCE AUTHORITY,

Plaintiff-Respondent,

v.

JEAN AMAGSILA,

Defendant-Appellant.

____________________________

January 23, 2014

Submitted October 21, 2013 - Decided

Before Judges Yannotti and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-6842-11.

Jean Abigail Amagsila, appellant pro se.

Douglas M. Fisher (Solomon and Solomon), attorney for respondent.

PER CURIAM

Plaintiff New Jersey Higher Education Student Assistance Authority (the Authority) brought suit to recover the amounts due on student loans made to defendant Jean Amagsila. The judge granted summary judgment in a May 11, 2012 order, and denied defendant's motion for reconsideration in a July 20, 2012 order. Defendant appeals those orders. We dismiss in part, and affirm in part.

I.

The Authority oversees the New Jersey College Loans to Assist State Students Program. See N.J.S.A. 18A:71C-21 to -31. Defendant obtained five student loans from the Authority. The Authority informed defendant that she was in default. On March 8, 2011, the Authority turned the loans over for collection.

On August 11, 2011, the Authority brought suit. In its motion for summary judgment, it certified the original loan dates and amounts, and the principal and interest due reflect payments and offsets received as of July 21, 2011, as follows:

Loan Date Loan Amount Principal Due Interest Due

4/22/03 $ 7,815 $ 7,061.73 $ 76.60

4/18/04 $ 6,500 $ 5,765.09 $ 62.53

7/29/04 $ 8,000 $ 7,455.93 $ 80.88

9/17/04 $10,000 $ 9,355.85 $101.48

6/21/05 $ 8,000 $ 2,181.54 $ 23.66

TOTAL: $40,315 $31,820.94 $345.15

On April 6, 2012, the Authority filed a motion for summary judgment, which was granted by order dated May 11, 2012. The order stated that no opposition had been filed, and entered final judgment for the following amounts:

Principal sum: $ 31,820.24

Cost of service of the summons and complaint: + $47.95

Interest at 3.5% from July 21, 2011: + $ 1,233.68

Attorney's Fees: + $ 7,076.39

Total: $ 40,178.261

Defendant filed a motion for reconsideration, which was denied on July 20, 2012.

II.

"[T]he timely filing of a notice of appeal is mandatory and jurisdictional." State v. Molina, 187 N.J. 531, 540-41 (2006). Defendant filed her initial notice of appeal on July 31, 2012, purporting to appeal both the May 11 and July 20, 2012 orders. However, her notice was filed beyond "45 days of the[] entry" of the May 11 order. R. 2:4-1(a).

The running of that period can be tolled "by the timely filing and service of a motion" for reconsideration." R. 2:4-3(e). To be timely, a reconsideration motion must be "served not later than 20 days after service of the judgment or order." R. 4:49-2. Defendant notes that the Authority served the May 11, 2012 order by letter dated May 18, 2012, which was postmarked on May 24, 2012, and which she received on or about June 2, 2012. Regardless, she did not file her reconsideration motion until June 26, 2012, more than twenty days after service of the May 11 order. "Neither the parties nor the court may, however, enlarge the time specified by R. 4:49-2." R. 1:3-4(c). "Therefore, only [defendant's] appeal from the [July 20] denial of [her] reconsideration motion is timely." Potomac Aviation, LLC v. Port Auth. of N.Y. & N.J., 413 N.J. Super. 212, 222 (App. Div. 2010).

To the extent a reconsideration motion "implicate[s] the substantive issues in the case and the basis for the motion judge's ruling on the [original] and reconsideration motions may be the same," then "an appeal solely . . . from the denial of reconsideration may be sufficient for an appellate review of the merits of the case." Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002). In such a situation, we may exercise our discretion to consider the merits of the original order. Potomac, supra, 413 N.J. Super. at 222; Tara Enters., Inc. v. Daribar Mgmt. Corp., 369 N.J. Super. 45, 60 (App. Div. 2004). Here, defendant failed to respond to the motion for summary judgment, thus depriving the judge of the opportunity to address the bases of her argument in his original ruling. In that situation, we decline to exercise our discretion to consider the merits of the May 11 order. Accordingly, we dismiss her untimely appeal from the May 11 order, and consider only her appeal of the order denying reconsideration on July 20.

"Motions for reconsideration are granted only under very narrow circumstances." Fusco, supra, 349 N.J. Super. at 462.

"Reconsideration should be used only for those cases which fall into that narrow corridor in which either (l) the Court has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence."

[Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).]

We review the judge's denial of reconsideration for abuse of discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). We must hew to that standard of review.

III.

We find no abuse of discretion. Defendant's failure to respond to the motion for summary judgment left it unopposed. R. 4:46-2(b). The facts in the Authority's certification were thus deemed admitted, ibid., and were sufficient to make summary judgment appropriate. The judge's grant of summary judgment thus was neither palpably incorrect nor irrational. See Fusco, supra, 349 N.J. Super. at 462.

Defendant asserts that the judge should not have granted summary judgment because the pleadings showed that there were genuine issues of material fact precluding summary judgment. However,

[w]hen a motion for summary judgment is made and supported . . . , an adverse party may not rest upon the mere allegations or denials of the pleading, but must respond by affidavits . . . setting forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered unless it appears from the affidavits submitted, for reasons therein stated, that the party was unable to present by affidavit facts essential to justify opposition . . . .

[R. 4:46-5(a).]

Here, defendant failed to submit any affidavits, or any of the documents she attached to her reconsideration motion. Defendant cannot fault the judge for not considering, or failing to appreciate, evidence that was not presented in opposition to the summary judgment motion. Fusco, supra, 349 N.J. Super. at 462-63. In any event, the documents would not have defeated summary judgment.

Defendant now asserts that she could not furnish affidavits in opposition because she had not completed discovery, for which the end date was June 2, 2012. However, defendant made no discovery requests. Moreover, "[a] party opposing summary judgment on the ground that more discovery is needed must specify what further discovery is required, rather than simply asserting a generic contention that discovery is incomplete." Trinity Church v. Lawson-Bell, 394 N.J. Super. 159, 166 (App. Div. 2007). Defendant specifies no discovery that would have altered the result of the summary judgment motion.

Defendant argues that summary judgment should have been denied because it required determination of a state of mind. However, the Authority's complaint simply alleged non-payment, which does not require consideration of defendant's state of mind. More importantly, defendant failed to file an affidavit creating an issue of fact regarding state of mind. See Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 447 (2007) (granting summary judgment regardless of mental state where justified by "the undisputed facts").

Defendant contends that her loans should never have been considered in default, because the Authority defaulted her loans prematurely at 180 days rather than 240 days. Under the program,

[d]efault occurs when a borrower fails to make an installment payment when due, or to meet other terms of the Promissory Note under circumstances where the Authority finds it reasonable to conclude that the borrower no longer intends to honor the obligation to repay, provided failure to repay persists for:

At least 180 days when payments are due monthly; or

At least 240 days during the student's in-school period when payments are due less frequently than monthly.

[N.J.A.C. 9A:10-6.16(a).]

Each of the promissory notes indicated that defendant chose the option to defer principal and pay interest quarterly. See N.J.S.A. 18A:71C-26.

On May 28 and June 29, 2010, the Authority informed defendant that she had failed to make her quarterly interest payments due on April 30, 2010. On October 26, 2010, the Authority told defendant that her loans were in default. Assuming that default could occur only if her failure to repay persisted for at least 240 days, this notice was premature, as the 240th day after April 30 is December 26, 2010. Defendant, however, persisted after December 26 in her failure to repay. She did not pay the Authority's February 16, 2011 bill when due March 8, 2011. By that time, as defendant acknowledged in a March 15, 2011 letter, her loans were in "default status." As a result, she became "liable for the entire balance of the loan." N.J.A.C. 9A:10-6.16(b). Defendant continued to make no payment before the Authority's March 24, 2011 letters demanding payment of the full balance on the loans. Only then, after default, did defendant send $2,454,87 in a letter dated March 30, 2011.

Defendant next claims that the debt amount does not reflect payments and offsets, particularly the $2,454.87. She concedes, however, that she received notices dated July 1, 2011, acknowledging payment of $2,454.87.

Defendant failed even in her reconsideration motion to show a genuine issue of fact concerning a valid defense. She certainly has not shown that denying that motion was an abuse of discretion.

IV.

Defendant challenges the award of attorneys' fees, claiming she was not in default. As stated above, we disagree.

Defendant also claims the attorneys' services did not justify, and the judge failed to explain, the fee award. On each of the promissory notes, however, defendant agreed that "[i]f I fail to pay any of these amounts when they are due, I will pay all charges and other costs, including attorney fees and court costs that are permitted under this program for the collection of this loan, which the lender . . . incurs collecting this loan." See First Morris Bank & Trust v. Roland Offset Serv., Inc., 357 N.J. Super. 68, 72 (App. Div.) ("It is commonplace in commercial loan transactions for the parties to agree that upon default the lender may receive from the borrower collection fees or attorney's fees measured by a percentage of the amount due."), certif. denied, 176 N.J. 429 (2003). Under the program, "[d]efault may result in . . . assessment of collection charges including attorney fees of up to 30 percent of the debt collected." N.J.A.C. 9A:10-6.16(b). We have found nothing unreasonable in a demand for 30% of the amount recovered under the program. N.J. Higher Educ. Assistance Auth. v. Martin, 265 N.J. Super. 564, 568-69 (App. Div. 1993). Here, the Authority certified that its contingent fee agreement granted counsel 22% of the amount claimed to be due. Given "the absence of any evidence to the contrary in the [summary judgment] record," the judge could conclude that the figure of 22% "is reasonable for the attorney's services in effectuating collection in this case." Metric Invest., Inc. v. Kerner, 145 N.J. Super. 463, 465 (App. Div. 1976). Defendant has failed to show an abuse of discretion in denying the reconsideration motion regarding the fees.

Affirmed in part, dismissed in part.

1 As corrected by an amended order filed August 3, 2012.