NEW CENTURY FINANCIAL SERVICES v. FRANK NORMAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2048-05T22048-05T2

NEW CENTURY FINANCIAL SERVICES,

Plaintiff-Respondent,

v.

FRANK NORMAN,

Defendant-Appellant.

_________________________________________________

 

Submitted June 6, 2006 - Decided July 17, 2006

Before Judges Payne and Sabatino.

On appeal from Superior Court of New

Jersey, Law Division, Special Civil

Part, Middlesex County, DC-16656-04.

Frank Norman, appellant, filed a pro

se brief.

Respondent has not filed a brief.

PER CURIAM

On or about January 8, 2005, a default judgment was entered against defendant Frank Norman in the amount of $3,376.92 in a collection action instituted by New Century Financial Services, Inc. arising out of a credit card debt. On June 16, 2005, Norman moved pursuant to R. 4:50-1 to vacate the judgment on the ground of lack of in personam jurisdiction. He alleged that service upon him by regular mail at an address in New Brunswick was defective, since he had moved from that address to Dover, Delaware twenty-eight months prior to the alleged service, and he had no notice of suit. Norman produced a residential lease, commencing in June 2002, as proof of the move.

Although Norman did not request oral argument, upon receipt of opposition by New Century to the motion, argument was scheduled. However, notice that argument of the motion was to occur was sent by the court to Norman's New Brunswick address, and he failed to appear. An order was entered on August 5, 2005 denying the motion on that basis.

On August 16, 2005, Norman received a copy of the court's order at his Delaware address. Although he contacted the court to arrange for a change of address in the court's records, he did not immediately seek reconsideration of the court's order, but instead waited until October 4, 2005 to do so. His motion was denied as untimely, because it had not been filed within twenty days of service of the August order as required by R. 4:49-2. Norman has appealed from the order denying reconsideration.

Rule 6:2-3, which authorizes service by mail in the Special Civil Part, provides in paragraph (d)(4) that "[c]onsistent with due process of law," service will be deemed effective when the summons and complaint have been simultaneously sent to a defendant by the clerk of the court by certified and ordinary mail and the ordinary mail is not returned as undeliverable, even if the certified mail is returned to the court as unclaimed or refused. Paragraph (d)(5) provides that the clerk "shall" vacate any default or default judgment if, after entry, process is returned to the court by the postal service with specified markings indicating non-delivery or "other reason exists to believe that service was not effected."

We construe R. 6:2-3 as creating only a presumption of service when ordinary mail is not returned as undeliverable, since the service provision, if read otherwise, would not be "consistent with due process of law." New Century relied solely upon this presumption in opposing Norman's motion to vacate default at the trial level, noting various occasions commencing in 2004 on which it had sent mail addressed to Norman at the New Brunswick address and had not been informed of its non-deliverability. However, evidence was presented by Norman to rebut the presumption. Thereafter, New Century presented no direct evidence to challenge Norman's assertion of a move to Delaware in June 2002 and no grounds to contest the validity of the lease that he produced as evidence of that move. On this basis, we find that the presumption of service was overcome. Our review of the record satisfies us that service was not properly effected upon Norman, and therefore we find the judgment entered against him was void.

"From the outset, our courts have sustained void judgments only where the equitable doctrines of estoppel and reliance strongly compel such an anomalous result[,]" Sonderman v. Remington Const. Co., Inc. 127 N.J. 96, 114 (1992) (Stein, J., concurring), and have otherwise held that such judgments are "of no legal effect for any purpose." Garza v. Paone, 44 N.J. Super. 553, 557 (App. Div. 1957); see also, e.g., Berger v. Paterson Veterans Taxi, 244 N.J. Super. 200, 204 (App. Div. 1990). No equities support the recognition of the default judgment entered here.

In her opinion in Bascom Corp. v. Chase Manhattan Bank, Judge Pressler noted that "lack of personal jurisdiction is a waivable defense," and she observed in connection with an untimely motion pursuant R. 4:50-1(d) to vacate a judgment as allegedly void:

There is thus a conceptual symmetry to a rule which limits a challenge to a judgment on that ground to a reasonable time thereafter. That is to say, just as the defense to the action itself may be waived, so may the right to attack an ensuing judgment on that ground be deemed waived if not exercised within a reasonable time.

[ 363 N.J. Super. 334, 341 (App. Div. 2003), certif. denied sub nom., Bascom Corp. v. Askew, 178 N.J. 453, cert. denied sub nom., Chase Manhattan Bank v. Askew and Chase Manhattan Bank v. Bascom Corp., 542 U.S. 938, 124 S. Ct. 2911, 159 L. Ed. 2d 813 (2004).]

In the present case, there has been no assertion that Norman's initial motion to vacate the default judgment against him was untimely under R. 4:50-2 and that his jurisdictional defense was thus waived. Indeed, the motion was filed within a year of the entry of the judgment and within a short time after Norman became aware of it. Nor does the record reflect substantial grounds for opposing Norman's motion to vacate default on the grounds of effective service or on any other legal basis. We note that the existence or not of a valid defense to the action is not a relevant consideration in this regard. Peralta v. Heights Medical Ctr., Inc., 485 U.S. 80, 84-86, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75, 81 (1988). That the motion was denied in August 2005 appears to have been solely the result of clerical error in sending the notice of oral argument to the wrong address.

We do not deem Norman's failure to conform to the time limitations of R. 4:49-2 when seeking reconsideration of the court's August 2005 order to have constituted a waiver of his defense of lack of in personam jurisdiction as Judge Pressler suggested might have occurred in Bascom if the alleged defect in the judgment that was claimed to have rendered it void in that case had been waivable. There is no "clear unequivocal and decisive act" that would provide evidence of an intentional waiver by Norman of a known right in that regard. Borough of Closter v. Abram Demaree Homestead, Inc., 365 N.J. Super. 338, 354 (App. Div.) (quoting West Jersey Title Co. v. Indus. Trust Co., 27 N.J. 144, 152 (1958), certif. denied, 179 N.J. 372 (2004); see also Lor-Mar/Toto, Inc. v. 1st Constitution Bank, 376 N.J. Super. 520, 536 (App. Div. 2005) ("Waiver presupposes a full knowledge of the right and an intentional surrender."). Because we find no ground upon which to hold that the defects in the judgment against Norman were waived by him, that judgment remains void and of no effect, but nonetheless extant as the result of Norman's noncompliance with R. 4:49-2, which cannot be excused by resort to the terms of the rule itself.

As a consequence, this case presents us with the "anomaly" recognized by the dissent in Garza, supra, 44 N.J. Super. at 561-62 and further acknowledged in Berger, supra, 244 N.J. Super. at 205 "of a judgment of record which can neither be set aside nor enforced." Ibid. In these unusual circumstances, caused in large measure by various failures to obtain a correct address for Norman, but also by Norman's own unfamiliarity as a pro se litigant with our court rules, we find that the interests of justice require that, in an exercise of our original jurisdiction, we vacate the default judgment entered against Norman and return the matter to the trial calendar. R. 2:10-5. Such a result would have been required by R. 6:2-3(d)(5) if the service defect had come to the attention of the court clerk post-judgment. We find the tangled procedural history of this case does not provide a principled reason for reaching a different result here. Moreover, only in this manner can effective relief be provided to all parties in this case.

The default judgment against defendant Frank Norman is vacated, and the matter is remanded for trial.

 

It was claimed that the judgment was entered in violation of an automatic stay imposed by the Bankruptcy Court.

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A-2048-05T2

July 17, 2006