LVNV FUNDING L.L.C. v. TODD CECCHINI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2371-13T4

LVNV FUNDING L.L.C.,

Plaintiff-Respondent,

v.

TODD CECCHINI,

Defendant-Appellant.

_

December 4, 2015

Submitted1 November 30, 2015 Decided

Before Judges Fasciale and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. DC-2144-13.

Todd Cecchini, appellant pro se.

Faloni & Associates, L.L.C., attorneys for respondent (David A. Faloni, on the brief).

PER CURIAM

Defendant appeals from a December 2, 2013 order denying his motion to vacate an October 11, 2013 order granting summary judgment to plaintiff, LVNV Funding L.L.C., as assignee of GE Money Bank.2 We reverse and remand for further proceedings consistent with this opinion.

In June 2013, plaintiff filed a complaint alleging it was entitled to damages on a book account and an account stated. Plaintiff alleged in the complaint that defendant failed to pay $5,271.74 in credit card debt and plaintiff received an assignment from the original creditor to pursue collection of the debt.

In August 2013, defendant filed his answer to the complaint. The amount in controversy appears to be related to HVAC3 work defendant had contracted to be performed for him. Defendant asserted in his answer that the goods or services were not received, and that he had otherwise paid the debt.

On October 11, 2013, the court granted plaintiff's unopposed motion for summary judgment. On November 12, 2013, the court issued an execution against goods and chattels. On December 2, 2013, the court denied defendant's motion to vacate summary judgment entered in favor of plaintiff, which plaintiff did not oppose.

In denying defendant's motion to vacate summary judgment, the judge did not address Rule 4:50-1, but hand wrote on the order that defendant "waited more than [twenty] days to seek reconsideration" of the order granting plaintiff summary judgment. As a result, the court disposed of defendant's motion to vacate as an untimely motion for reconsideration under Rule 4:49-2.

On appeal, defendant argues that he was out of the country when summary judgment was granted and thus unable to timely respond. Defendant contends that he has a meritorious defense to the allegations in the complaint. As a result, defendant maintains that the judge erred by denying his motion to vacate summary judgment.

A motion to vacate judgment, such as the one filed by defendant, is governed by Rule 4:50-1, which provides various avenues for relief from a judgment or order. Pursuant to section (a) of the rule, a court may relieve a party from a final judgment because of "mistake, inadvertence, surprise, or excusable neglect[.]" A party seeking to prevail under Rule 4:50-1(a) must demonstrate excusable neglect and the existence of a meritorious defense. U.S. Bank Nat'l Ass'n. v. Guillaume, 209 N.J. 449, 468-69 (2012).

Defendant did not move for reconsideration of the order granting summary judgment to plaintiff. As a result, it is irrelevant that his motion was filed slightly more than twenty days after the court filed the October 11, 2013 order granting summary judgment to plaintiff. Pursuant to Rule 4:50-2, a motion made under Rule 4:50-1(a) must be made "not more than one year after the judgment[.]" Applying that timeline, defendant's motion was timely filed.

We review this appeal under the standards applicable to Rule 4:50-1. Our standard of review warrants substantial deference to the trial court's determination, which "should not be reversed unless it results in a clear abuse of discretion." Guillaume, supra, 209 N.J. at 467. An abuse of discretion occurs when a decision "is made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis." Ibid. (citation and internal quotation marks omitted). Here, we are unable to determine whether the court abused its discretion under Rule 4:50-1.

Because the judge treated defendant's motion as one for reconsideration rather than as a motion to vacate under Rule 4:50-1, we reverse the order under review and remand with instructions to determine whether defendant established excusable neglect and a meritorious defense warranting a vacation of the order granting summary judgment to plaintiff. We do not limit defendant's arguments on remand to Rule 4:50-1(a).

Reversed and remanded. We do not retain jurisdiction.

1 The appeal was originally scheduled for oral argument, but we received correspondence dated November 16, 2015, indicating that the parties waived their appearance. On November 30, 2015, defendant requested an adjournment of this matter. We denied that last-minute request.

2 Before the judge, defendant also sought to vacate an October 17, 2013 order to strike his answer. The denial of that motion is not on appeal.

3 HVAC is an acronym for heating, ventilation, and air conditioning.