SUSAN R. WOLF v. MARATHON BANK

 
(NOTE: The status of this decision is .)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3428-08T23428-08T2

SUSAN R. WOLF,

Plaintiff-Respondent,

v.

MARATHON BANK/OCWEN BANK/BERKELEY

FEDERAL,

Defendant-Appellant,

and

SOVEREIGN BANK LEGAL DEPARTMENT,

Defendant.

_______________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Grall and Messano.

On appeal from Superior Court of New

Jersey, Law Division, Special Civil Part,

Essex County, Docket No. DC-42210-07.

Kaufman, Bern, Deutsch & Leibman, L.L.P.,

attorneys for appellant (Paul Kaufman, of counsel; Marc E. Leibman, on the brief).

Randolph H. Wolf, attorney for respondent.

PER CURIAM

Defendant Marathon Bank (Marathon) appeals from an order reinstating a default judgment entered by the Special Civil Part of the Essex County Vicinage of the Superior Court in favor of plaintiff Susan R. Wolf. Wolf's claims against defendant Sovereign Bank (Sovereign) were dismissed on motion for summary judgment. Marathon contends that the judgment must be vacated because the Special Civil Part's exercise of jurisdiction was contrary to Rule 6:1-3(a) and because Rule 4:50-1 required that court to grant its motion to vacate the default. As Marathon's objections to the court's jurisdiction and its allegations of excusable neglect and a meritorious defense are wholly lacking in merit, we affirm.

Wolf filed her complaint naming defendants Marathon and Sovereign on December 21, 2007. She sought to recover $14,500, inclusive of interest due, plus $250 for the costs of suit. Wolf alleged that on April 13, 1988, she opened an individual "Retirement Acorn Guaranteed Growth Account" with Berkeley Federal Savings (Berkeley) and deposited $2000. With her complaint, Wolf included a document signed by an "authorized representative" of Berkeley memorializing the opening of her account and stating an interest rate of 8.30% per annum. Wolf also alleged that on April 17, 1989, she acquired a "Retirement Savings Certificate" from Berkeley with another $2000 deposit. That certificate provides for interest at the rate of 9.70% annually. The complaint was served on Marathon by certified mail from the Office of the Special Civil Part Clerk and received by Marathon on January 7, 2008 in Astoria, New York. There is no dispute that Marathon has a branch in Bergen County and Sovereign has branches in Essex County.

On March 12, 2008, default judgment was entered against Marathon. The judgment was executed by levy on April 18, 2008, and Marathon issued a check in the amount of $16,106.20, payable to the Superior Court of New Jersey. In turn, on May 15, 2008, the Special Civil Part Officer issued a check in the amount of $14,642, payable to Wolf.

More than five months after entry of the default judgment, on August 26, 2008, Marathon moved to vacate the default. In support of its application to vacate the judgment, Marathon, through its Vice President, asserted, without offering any explanation, that it "inadvertently omitted the submission of an Answer to the Complaint" and claimed that the court lacked "jurisdiction" because Marathon's only branch in New Jersey is located in Bergen, not Essex, County. Although Wolf opposed the motion, on September 23, 2008 the court dismissed the judgment pursuant to Rule 4:50-1. Two days later, Marathon wrote to Wolf's attorney demanding return of the funds paid to her.

On November 16, 2008, Wolf moved to vacate the September 23 order and reinstate the default judgment. Marathon opposed that motion and filed a separate motion in aid of litigant's rights demanding return of $16,106.20, which is the amount Marathon paid in response to the levy. On January 8 and 15, 2009, respectively, the court entered an order denying Marathon's motion and an order reinstating the default judgment. This appeal followed.

On appeal Marathon argues:

I. THE JUDGMENT MUST BE VACATED BECAUSE

THE COURT BELOW HAD NO JURISDICATION [SIC] IN VIOLATION OF COURT RULE 6:1-3(a).

II. THE JUDGMENT MUST BE VACATED UNDER

RULE 4:50-1.

These arguments do not warrant more than brief comment. R. 2:11-3(e)(1)(E).

The issue raised in point I has no merit as a matter of law. The fact that Marathon has no presence in Essex County is not relevant to jurisdiction. A defendant's lack of presence in the vicinage in which plaintiff filed the complaint raises a question of venue, not jurisdiction. R. 6:1-1(a). The issue is one properly addressed on a motion for change of venue and remedied, where appropriate, by a change of venue. R. 6:1-3(b); see Charles Cerlan, Inc. v. Woodbridge Ford, 197 N.J. Super. 104, 107-08 (Law Div. 1984); Pressler, Current N.J. Court Rules, comment 1 and 4 on R. 6:1-3 (2010). Moreover, because there is no dispute that co-defendant Sovereign has a presence in Essex County, Wolf's complaint was not filed in an improper venue. R. 6:1-3(a) (providing that venue is properly laid in a county where at least one of the defendants resides and that a business entity is deemed to reside in any county in which it is doing business); Pressler, supra, at comment 4 on R. 6:1-3.

Similarly, the argument raised in point II overlooks the showing required to vacate a default judgment. There is no question that "[a] court should view 'the opening of default judgments . . . with great liberality,' and should tolerate 'every reasonable ground for indulgence . . . to the end that a just result is reached.'" Mancini v. EDS, 132 N.J. 330, 334 (1993) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964)). Thus, "[a]ll doubts . . . should be resolved in favor of the parties seeking relief." Id. at 334.

The requisite liberality, however, does not permit a court to ignore the requirements for a grant of relief pursuant to Rule 4:50-1. The rule "'is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Baumann v. Marinaro, 95 N.J. 380, 392 (1984) (quoting Manning Eng'g, Inc. v. Hudson County Park Comm'n, 74 N.J. 113, 120 (1977)). In order to maintain an appropriate balance, judicial discretion must be based upon a liberal view of an application to vacate a default but exercised in accordance with, not in disregard of, the stated criteria.

Viewed liberally, Marathon's application sought relief pursuant to Rule 4:50-1(a), which provides relief for "mistake, inadvertence, surprise, or excusable neglect." "The four identified categories in subsection (a), when read together, as they must be, reveal an intent by the drafters to encompass situations in which a party, through no fault of its own, has engaged in erroneous conduct or reached a mistaken judgment on a material point at issue in the litigation." DEG, LLC v. Township of Fairfield, 198 N.J. 242, 262 (2009). Thus, Marathon was required to show absence of fault on its part and a meritorious defense. Marder, supra, 84 N.J. Super. at 318.

Marathon offered no explanation for its failure to respond to Wolf's complaint. Instead, Marathon simply asserted that its omission was made "inadvertently." On appeal, Marathon does not present any argument relevant to its failure to respond. While all doubts should be resolved in Marathon's favor, Marathon has asserted nothing that gives rise to any doubt. For that reason, we cannot conclude that the trial court abused its discretion in reinstating the default judgment it vacated without adequate cause. In Wolf's motion she requested that relief on the ground that Marathon had not established that its omission was excusable. Our conclusion relevant to Marathon's excuse, obviates the need to consider Marathon's vague assertions of meritorious defenses.

Affirmed.

 

Contrary to Rule 2:6-1(a)(1), neither party has included a copy of the default judgment in an appendix filed with this court.

Contrary to Rule 2:6-1(a)(1), neither party has included the order granting summary judgment to Sovereign. Nonetheless, Wolf asserts and Marathon does not dispute that her claims against Marathon were dismissed on Sovereign's motion for summary judgment.

Contrary to Rule 2:6-2(a)(1), (5), under its second point heading Marathon contends that the Special Civil Part's exercise of jurisdiction was improper under Rule 6:1-2(a)(1) because the amount in controversy exceeded $15,000. Even if we were to elect to consider this allegation despite Marathon's failure to raise the issue in conformity with Rule 2:6-2, compare DeSoto v. Smith, 383 N.J. Super. 384, 395 n.1 (App. Div.), certif. denied, 187 N.J. 81 (2006) with State v. Cerefice, 335 N.J. Super. 374, 382 (App. Div. 2000), we could not review the alleged error because, as noted in footnote 1 above, Marathon has not provided a copy of the judgment, the amount of which is critical to its claim. See Cipala v. Lincoln Technical Inst., 179 N.J. 45, 55 (2004). In any event, the claim has no merit; Rule 6:1-1(a) provides that all references to jurisdiction in Part VI of the Rules of Court "shall be deemed to refer, as appropriate, to venue or cognizability." See also R. 6:1 2(c) (discussing waiver of recovery of a sum exceeding the $15,000 limit plus costs).

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A-3428-08T2

March 23, 2010