UNIFUND CCR PARTNERS v. ROBERTO BERAS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0122-09T3

UNIFUND CCR PARTNERS,

Plaintiff-Respondent,

v.

ROBERTO BERAS,

Defendant-Appellant.

______________________________________

March 23, 2011

Submitted December 1, 2010 - Decided

Before Judges Ashrafi and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-001898-04.

Pinilis Halpern, LLP, attorneys for appellant (Jeffrey S. Mandel, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Roberto Beras appeals from an order of the Special Civil Part dated June 4, 2009, denying his motion to vacate a default judgment. We affirm, although for reasons different from those stated by the trial court. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) ("if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance"); State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002) (an appeal is taken from the court's order rather than reasons for the order).

Defendant is an inmate at a federal prison. He states he has been incarcerated since December 2000, and confined at the Elkton Federal Correctional Institution in Lisbon, Ohio since January 2002. He is scheduled to be released from prison in 2022.

In January 2004, plaintiff Unifund CCR Partners filed a Special Civil Part complaint alleging that it is the assignee of a Citibank Universal Card account established by defendant, and that defendant has failed to pay $4,105.02 plus interest on that account. Defendant does not dispute that, under the rules of the Special Civil Part, the complaint would have been mailed to an address given to the court by plaintiff. The address for the account was defendant's former home address in Bergenfield, New Jersey.

Defendant did not file an answer to the complaint. Plaintiff obtained a default judgment on May 6, 2004, for $4,560.23 plus costs and attorney's fees of $160.20, for a total of $4,720.43.

According to defendant, he first learned of the judgment in June 2006 by means of a report from a title agency. He filed a pro se motion in February 2007 to vacate the judgment, alleging in an accompanying certification that he had not been served with the complaint and that his due process rights were violated by entry of a default judgment following mailed service to his former address. Included with defendant's motion was a proposed answer to plaintiff's complaint, in which defendant stated: "There is no contract or judgment making defendant liable for the debt plaintiff alleges." According to defendant, the Special Civil Part denied his motion on April 13, 2007.

In February 2009, plaintiff filed a motion to enforce litigant's rights under Rule 6:7-2(e), stating that defendant had failed to respond to a post-judgment information subpoena issued in accordance with Rule 6:7-2(b)(1) and Appendix XI-L. Plaintiff had served the information subpoena and its motion to enforce litigant's rights by mail sent to defendant's former address in Bergenfield. Defendant did not file opposition to plaintiff's motion, and the court issued an order enforcing litigant's rights on April 3, 2009. The order also directed that defendant pay an attorney's fee to plaintiff of $250 for the motion. On April 8, 2009, counsel for plaintiff served the court's order enforcing litigant's rights upon defendant by mail, again at the same Bergenfield address.

After receiving that order, defendant filed another pro se motion on May 7, 2009, to vacate the default judgment. In a supporting certification, defendant stated that his daughter forwarded to him the court's order enforcing litigant's rights but that he had never received the information subpoena. Defendant also declared again that he had not been served with plaintiff's original complaint because he was incarcerated. He also claimed that plaintiff continued to serve him papers at his former address in New Jersey although he has not resided there for many years, and that his 2007 motion to vacate default judgment had been denied but an appeal of that ruling was filed and remained pending.

By order dated June 4, 2009, and marked "unopposed," the court denied defendant's motion to vacate the default judgment, stating: "Defendant has not established a meritorious defense. Appellate Division has no record of appeal for this case." Defendant filed a notice of appeal from the June 4, 2009 order. Subsequently, counsel assigned under this court's Pro Bono Civil Pilot Program entered an appearance and filed defendant's brief on appeal. Plaintiff has not filed opposition to the appeal.

On appeal, defendant challenges the judgment entered in May 2004 on several grounds, but there is no clear indication about why no appeal was taken from the April 2007 denial of his motion to vacate default judgment. The trial court correctly noted on its June 4, 2009 order that there is no record of a prior appeal. Since plaintiff has not filed opposition to the current appeal, we will decide it on the merits without consideration of whether the 2009 motion to vacate default judgment was barred by res judicata because the same motion had been denied in 2007 and not appealed.

The trial court erroneously based its denial of defendant's 2009 motion on the absence of a meritorious defense to plaintiff's claim. While a motion to vacate a default judgment under some subsections of Rule 4:50-1 requires a showing of a potentially meritorious defense, see Mancini v. EDS, 132 N.J. 330, 334 (1993), defendant's motion was brought under subsection (d) of that rule, in effect, asserting a void judgment. Defendant claimed that the court lacked personal jurisdiction to enter a judgment against him because of improper service of process. See Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204 (App. Div. 1990). To vacate a judgment that is void for lack of personal jurisdiction, the moving party is not required to show a meritorious defense to the claim. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75, 82 (1988); Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).

The question presented to us is whether the judgment entered in May 2004 is void because service of a summons and complaint by mail to defendant's home address was ineffective in conferring personal jurisdiction over defendant while he was incarcerated in another state. In the specific circumstances of this case, we conclude that service by mail to his home address in New Jersey was effective to confer jurisdiction.

In the Special Civil Part, service to initiate a lawsuit may be made by mail to a defendant within New Jersey. R. 6:2-3(d). The clerk of the Special Civil Part must mail the summons and complaint simultaneously by certified and regular mail to the address for defendant that plaintiff supplies. Ibid. Obviously, a plaintiff may not knowingly provide an incorrect address for service of process. Service to a defendant's home address is effective unless at least one of the mailings is returned by the postal service indicating that the mail could not be delivered as addressed. R. 6:2-3(d)(4). If the certified mailing is refused or unclaimed but the ordinary mailing is not returned, service of process is still deemed effective. Ibid.; see First Resolution Inv. Corp. v. Seker, 171 N.J. 502, 509-10 (2002).

Rule 6:2-3(a) states that a defendant outside New Jersey must be served in accordance with the requirements of Rule 4:4-4. For mailed service to be effective, subsections (b) and (c) of Rule 4:4-4 require certain showings that plaintiff did not attempt to make in this case. Therefore, in this case, service of the complaint upon defendant was effective only if he could be properly served in New Jersey.

Rule 6:2-3(b) requires that service of process be "consistent with due process of law." A substantial deviation from the service of process rules requires relief from a default judgment even if defendant had actual knowledge of the lawsuit. Sobel v. Long Island Entertainment Prods., Inc., 329 N.J. Super. 285, 292-93 (App. Div. 2000). But a minor defect in service, coupled with the defendant's actual knowledge of the litigation, does not offend due process. See, e.g., Rosa v. Araujo, 260 N.J. Super. 458, 463 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993).

In the circumstances of this case, defendant asserts that service of process by mail to his former address was a substantial deviation from the requirements of the court rules and a violation of his right to due process. He states he had been incarcerated in Ohio since January 2002 and did not expect to be released from federal custody for another eighteen years, thus demonstrating that he was not a resident of New Jersey at the time of service. He claims that plaintiff's attorney could have determined his status and residence simply by accessing a publicly available Federal Bureau of Prisons website, www.bop.gov, which provides the name and location of the institution at which a federal inmate is confined. Therefore, argues defendant, he could not be personally served by mail as a defendant residing in this State.

Given the specific facts in this case, we need not decide under what circumstances the residence of an incarcerated person is a prison as opposed to his former home address. Compare Fidelity & Deposit Co. of Md. v. Abagnale, 97 N.J. Super. 132, 146 (Law Div. 1967) (defendant was not a resident of New Jersey while incarcerated in Pennsylvania) with Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972) ("One does not change his residence to the prison by virtue of being incarcerated there.") (quoting Cohen v. U.S., 297 F.2d 760, 774 (9th Cir. 1962)).

The record presented to us reveals that defendant was receiving mail at the Bergenfield address in January 2004, and more important, that he himself was providing the Bergenfield address in correspondence with plaintiff's counsel. Before filing its complaint, plaintiff mailed a collection letter to defendant's Bergenfield address on or about December 31, 2003. By letter dated January 27, 2004, defendant responded to the collection letter and used the same address in his response. He did not give any notice to plaintiff that he was residing in prison in Ohio until he filed a motion in 2007 to vacate the judgment. Had defendant provided a new address to plaintiff, or had plaintiff another reason to know of defendant's changed residence, service of process would have been required in accordance with plaintiff's correct mailing address. Without such notice of a change of address, or other actual or constructive knowledge, a plaintiff-creditor is not required to check government websites before filing suit to determine whether a defendant may be incarcerated.

Also, in asserting that he did not have knowledge of plaintiff's complaint, defendant gives no explanation why he would have received the collection letter in January 2004 but not the summons and complaint mailed to the same address at about the same time. His prompt response to the collection letter demonstrates that he was, in fact, receiving mail sent to the Bergenfield address.1 See Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 313 (App. Div. 1997) (requirements of due process were satisfied where defendant had actual knowledge, despite defective personal service, of the summons and complaint filed against him). The law recognizes a presumption that properly addressed and stamped mail is delivered to its addressee. SSI Medical Servs., Inc. v. Dep't of Human Servs., 146 N.J. 614, 621 (1996).

Defendant's use of the Bergenfield address in January 2004 indicates that he still considered himself a resident of New Jersey when plaintiff served its complaint. Therefore, service of original process at the Bergenfield address complied with the requirements of the court rules and provided due process to defendant as an in-state resident in January 2004. See First Resolution Inv. Corp., supra, 171 N.J. at 514 ("due process is satisfied when a defendant, who cannot be found for personal service but is a resident of the State at the time of the actionable event, is served by ordinary mail at his or her last known address").

Defendant's other challenges to the adequacy of the judgment are untimely. Rule 4:50-2 requires that a motion to vacate a judgment be made within a reasonable time and no later than one year from the date of judgment under subsections (a), (b), and (c) of Rule 4:50-1. Here, defendant contends that plaintiff's complaint did not establish proof of assignment of the Citibank Universal Card account, that plaintiff violated provisions of federal debt collection laws, and that the specific amount of the judgment varied from the amount claimed in the complaint. These contentions address the sufficiency of plaintiff's proofs or defendant's potential defenses to the claim. They should have been timely raised in an answer to the complaint or under subsections (a) through (c) of Rule 4:50-1.

Subsection (f) of the rule may be invoked without the one-year time limitation. That subsection, the "catch-all" provision of the rule, states that a judgment may be vacated for "any other reason justifying relief from the operation of the judgment or order." However, "[b]ecause of the importance that we attach to the finality of judgments, relief under Rule 4:50-1(f) is available only when 'truly exceptional circumstances are present.'" Housing Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)). Defendant's motion did not present exceptional circumstances. Not only did he continue to provide his Bergenfield address through January 2004, but the statements on the card account were addressed to that location and payments were made on the account through November 2001, which was almost a year after defendant states his incarceration commenced. Plaintiff and its assignor had no reason to suspect in January 2004 that defendant's residence had changed.

Additionally, the account statements indicate an interest rate of 23.99% applicable to the outstanding balance. Interest charges continued to accumulate after payments stopped in December 2001, and those charges account for an increase in the amount of the judgment from the amount stated in the complaint.

In sum, we conclude that defendant failed to show a ground for vacating the default judgment under any subsection of Rule 4:50-1.

Defendant also argues that the trial court erroneously imposed an attorney's fee of $250 by its order of April 3, 2009, enforcing litigant's rights. He contends that plaintiff served the information subpoena and its motion to enforce litigant's rights at the Bergenfield address even though defendant had provided his Ohio prison address when he filed a motion in February 2007 to vacate the default judgment.

We will not address the April 3, 2009 order because defendant's notice of appeal and case information statement refer only to the June 4, 2009 order. We leave for another day, if necessary, any determination of whether the court's April 3, 2009 order, and its assessment of an additional attorney's fee, is enforceable since plaintiff was provided with defendant's corrected address at the time it served an information subpoena and a motion to enforce litigant's rights.

A

1 As recently as April 2009, defendant was receiving items mailed to him at the Bergenfield address. His 2009 motion states that his daughter forwarded to him in April 2009 the court's April 3, 2009 order enforcing litigant's rights.