VELOCITY INVESTMENTS, LLC. v. HECTOR MENDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5137-07T15137-07T1

VELOCITY INVESTMENTS, LLC,

Plaintiff-Respondent,

and

NEW JERSEY HOME CONSTRUCTION, INC.,

and DONALD L. POLLOCK, JR.,

Intervenors-Respondents,

v.

HECTOR MENDEZ,

Defendant-Appellant.

_________________________________

 

Submitted: March 4, 2009 - Decided:

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division - Special
Civil Part, Camden County, Docket No. DC-4628-05.

Law Offices of Thomas T. Booth, Jr., LLC, attorney for appellant (Thomas T. Booth, Jr., on the brief).

Ragan & Ragan, attorneys for respondent Velocity Investments, LLC, join in the brief of respondent-intervenor New Jersey Home Construction, Inc.

Simeone & Bonfrisco, LLC, attorneys for respondent-intervenor New Jersey Home Construction, Inc., (Michael D. Bonfrisco, of counsel; Mr. Bonfrisco and Kenneth E. Raynor, on the brief).

PER CURIAM

Defendant, Hector Mendez, appeals from the April 18, 2008 order of the Special Civil Part denying his motion to vacate a default judgment entered on January l8, 2006, and denial of his motion for reconsideration. We affirm.

On or about April 19, 2005, plaintiff, Velocity Investment, LLC, as assignee of MBNA Magnus Services, filed a Special Civil Part suit against defendant on a credit card indebtedness for payments due as of June 11, 2001. Service was made at 2233 39th Street, Pennsauken, New Jersey 08110, the address on the invoices, by regular and certified mail pursuant to Rule 6:2-3(d)(1). The certified mail was returned as "unclaimed" but the regular mail was not returned.

On or about December 27, 2005, plaintiff filed a motion to enter judgment out of time, serving the papers on defendant by the same method and at the same address. Although the certified mail was returned as "unclaimed," the regular mail was not returned. Judgment was entered in the Special Civil Part on January l8, 2006 in the amount of $9,875.74, and was docketed in the Superior Court on March l6, 2006.

On or about January 5, 2007, plaintiff pursued post-judgment relief by serving an information subpoena on defendant by certified and regular mail at the Pennsauken address. R. 6:7-2(b)(1),(c). The certified mail was returned as "unclaimed" but the regular mail was not returned. On January 29, 2007, plaintiff served defendant with a motion to enforce litigant's rights, which included allowing a real estate levy of defendant's property. The certified mail envelope was returned "unclaimed" with the notation to "notify sender of new address," listing a post office box number in Camden. The regular mail was not returned. The March 2, 2007 order was sent to defendant at the Pennsauken address by certified and regular mail by letter of March l3, 2007. A writ of execution was thereafter issued against defendant's property.

On or about December 21, 2007, plaintiff's counsel sent notice of sheriff's sale to defendant at the Pennsauken address by regular and certified mail. As occurred previously, the certified mail was returned "unclaimed," but the regular mail was not returned. At the sheriff's sale on January 24, 2008, the property was purchased by New Jersey Home Construction (NJHC), intervenor in the post-judgment motion and respondent in this appeal, and the deed was recorded the next day.

Then, on or about February 27, 2008, defendant filed a motion to vacate the default judgment which led to the sheriff's sale. On or about March 7, 2008, defendant filed an order to show cause and verified complaint against NJHC and its president in the Chancery Division, Camden County, seeking to set aside the sheriff's sale. That was NJHC's first knowledge that defendant was contesting the sale and attempting to vacate the default judgment. NJHC filed an answer to the Chancery complaint and intervened in the Special Civil Part action in order to oppose defendant's motion to vacate the judgment.

The basis for defendant's motion to vacate the default judgment was that he did not live at the Pennsauken address, but instead lived a few blocks away in Camden, and was never served with the complaint or notice of entry of default judgment. Defendant argued that because he was never properly served with original process at his residence, the judgment was void under Rule 4:50-1(d), and as he did not have actual notice of the judgment until he returned from Puerto Rico on or about January l0, 2008, just over a month prior to filing the motion to vacate, his motion was filed within a reasonable time under Rule 4:50-2. In support of his motion, defendant submitted a brief which incorporated his verified complaint filed in the Chancery action. In his complaint, defendant made the following statements. At all relevant times he resided at 564 N. 32nd Street, Camden, New Jersey and owned the Pennsauken property. Around January 6, 2008, his girlfriend, Alicia Quinones, went to the Pennsauken property to collect rent from the tenant, Benilda Velazquez, because defendant was in Puerto Rico, and the tenant gave her the December 21, 2007 sheriff sale notice. Previously, defendant had never received or been served with any court complaints filed against him, or other information or documents regarding the captioned action. Moreover, to the best of his recollection, he had never transacted business with Velocity Investments. Within a few days, he contacted plaintiff's counsel's office, who referred him to the Camden County Sheriff's Office. Alicia was informed by the Sheriff's Office that information would only be provided in person, so she and defendant went there on February 1, 2008. Defendant retained counsel on February 6, 2008.

Following oral argument on April 21, 2008, the court denied plaintiff's motion, finding there was effective service of process on defendant under Rule 6:2-3, and the intervening rights of NJHC further precluded vacating the default judgment. See R. 6:2-3(d)(1),(4) (providing, in Special Civil Part actions, that mailed service in accordance with the rule is a viable option for conferring in personam jurisdiction; service is effective if the certified mail is returned to the court marked "unclaimed" or "refused" and the ordinary mail is not returned); Pressler, Current N.J. Court Rules, comment 2 on R. 4:50-2 (2009) (citing cases denying relief where a defendant failed to vacate a judgment or order and intervening rights of an innocent third party arose in the meantime). Judge Silverman-Katz pointed out that the address used for service of the complaint was the same as that listed on defendant's credit card invoice; the property search submitted in opposition to the motion to vacate confirmed that defendant has continuously owned the Pennsauken property since at least 2005, which defendant admitted; and the complaint and post-judgment filings were properly sent in accordance with the Special Civil Part mail service procedure and the certified mail was returned "unclaimed" and the regular mail was not returned. Moreover, the judgment was executed upon and title to the property passed before defendant filed his Rule 4:50 motion.

Defendant filed a motion for reconsideration. As evidence that he did not reside at the Pennsauken address during the relevant time, he then presented a landlord registration from Pennsauken Township dated November 12, 2002 and a final occupancy certificate with a description of activities as "rental property" dated January 25, 2008; a returned "unclaimed" certified mail envelope from himself to Velazquez at the Pennsauken address dated May 17, 2006; and a certification from Velazquez dated May 2, 2008, filed in the Chancery action, stating that she has resided at the Pennsauken property with her family as a tenant since November 2002, and did not receive any of defendant's mail regarding the underlying suit with the exception of the December 21, 2007 sheriff's sale notice that she gave to Quinones. The court denied defendant's motion following oral argument on June 9, 2008, finding defendant failed to bring "new or additional information to the Court's attention that could not have been provided on the first application," citing D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). Defendant appealed, renewing the arguments made to the trial court.

We discern no error in the trial court's ruling on defendant's motion as a matter of law, and no abuse of discretion in its denial of reconsideration. The record supports the court's finding of effective service of process on defendant in accordance with the Special Civil Part rules. R. 6:2-3(d)(1),(4). The complaint and motion to enter default, as well as post-judgment documents, were mailed to defendant at the address listed on the credit card invoice, a property he admitted he owned. The certified mail was returned marked "unclaimed" and the simultaneous ordinary mail was not returned. Defendant failed to present any substantive proof to the trial court in support of his motion to vacate the default judgment to rebut the presumption of effective mail service of process. All defendant presented was his verified complaint representing that he lived at a specific address in Camden, not in the Pennsauken property he owned; as of December 27, 2007 he had a tenant in the Pennsauken property; and he never received any document from plaintiff regarding the suit other than the notice of sheriff's sale. Defendant provided no evidence to support his residence claim, such as telephone records or other bills, a driver's license, or any other document. Nor did defendant provide confirmation of the property's rental status, details as to the period that it was rented, or a certification from the tenant until after the motion was denied.

Moreover, it is undisputed defendant received actual notice of the sheriff's sale about three weeks before it occurred. However, defendant waited a month after the sale of the Pennsauken property to file a motion to vacate the default judgment upon which the sale was based. A party who seeks relief on the ground that a judgment is void, R. 4:50-1(d), is obliged to make the motion within a reasonable time. R. 4:50-2. The reasonableness of the time period is determined by the surrounding circumstances, including the length of time that has elapsed and a weighing of the competing rights and interests which have come to exist. Friedman v. Monaco and Brown Corp., 258 N.J. Super. 539, 543 (App. Div. 1992). Assuming defendant's first notice of the judgment was January 6, 2008, he failed to act within a reasonable time under all circumstances, considering the execution on the judgment and the passing of title to the property to a bona fide purchaser in the interim.

We are also satisfied the court gave due regard to the policy considerations of the finality of judgments and defendant's failure to submit proof that was available at the time he filed his motion in determining the interests of justice warranted denial of his motion for reconsideration. See Ross v. Rupert, 384 N.J. Super. 1, 7-9 (App. Div. 2008).

Affirmed.

 

By order of April 25, 2008, Mendez's order to show cause with temporary restraints was denied by the Chancery judge. By order of June 6, 2008, NJHC was granted summary judgment dismissal of Mendez's complaint with prejudice. Mendez did not appeal this order.

(continued)

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9

A-5137-07T1

March 23, 2009