DISCOVER BANK v. NATALIA PAULINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0686-09T3

DISCOVER BANK,

Plaintiff-Respondent,

v.

NATALIA PAULINO,

Defendant-Appellant.

________________________________________________________________

February 3, 2011

Submitted January 4, 2011 - Decided

Before Judges Carchman and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-010377-08.

Natalia Paulino, appellant pro se.

Weltman, Weinberg & Reis, Co., LPA, attorneys for respondent (V. Kelly Mulholland, on the brief).

PER CURIAM

Defendant Natalia Paulino appeals from a default judgment of the Special Civil Part in the amount of $2,935.56 in favor of plaintiff Discover Bank. We affirm.

These are the facts. On March 14, 2008, plaintiff filed a complaint against defendant seeking judgment for sums due on a Discover credit card. In addition to the principal balance of $2,597.61, and consistent with the terms of the cardholder agreement, plaintiff sought counsel fees and costs. Defendant filed an answer and, thereafter, a motion to dismiss the complaint. Trial was scheduled for August 11, 2008, at which time defendant failed to appear and plaintiff was ordered to submit its proofs. A default judgment was entered on September 24, 2008. A subsequent motion to dismiss the complaint for failure to state a claim upon which relief can be granted, R. 4:6-2(e), and lack of jurisdiction, R. 4:6-2(a), was denied.1

Thereafter, plaintiff sent notice of its intention to levy on defendant's bank account as well as a motion for a turn over of the funds. An order was entered for the turn over and within a week, defendant's husband filed a motion to vacate the default judgment. Nothing in the motion explained why defendant failed to appear at trial; the motion restated the various legal arguments that had previously been raised and it was denied. A motion for reconsideration was likewise denied. This appeal followed.

On appeal, defendant asserts that the court erred in denying her motion to vacate the judgment as well as erring in refusing to consider motions filed by her husband. We have carefully considered defendant's arguments and conclude that they are without merit. R. 2:11-3(e)(1)(E). We add the following additional comments.

We note that the post-judgment motion practice attacking the bona fides of the judgment was conducted by Jose Paulino, defendant's husband, who was neither an attorney nor a party to this action. While he may have had standing to contest the levy on the joint bank account, Winchell v. Clayton, 133 N.J.L. 168, 171 (Sup. Ct. 1945) (allowing defendant's son and daughter to prove that they solely owned money in a levied joint account despite "not [being] a party"), he did not do so here, but limited his challenge to the judgment. When a party contests a levy, a "collateral attack upon the judgment" "may be made only on the ground of lack of jurisdiction." Moran v. Joyce, 124 N.J.L. 255, 256 ( E & A 1940).

Further, a motion to set aside a default judgment under Rule 4:43-3 may be granted "for good cause shown" and "in accordance with R. 4:50." R. 4:43-3. Rule 4:50 provides that "the court may relieve a party or the party's legal representative . . . ." See also In re Adoption of Baby T, 160 N.J. 332, 341 (1999) (noting that two classes of people are granted standing under the Rules of Court: "a party []or a legal representative of a party"). The inference that Mr. Paulino was representing the interests of defendant is problematic. He had no standing to represent those interests, and the judge properly denied his motion.

While we are indulgent in considering applications to set aside default judgments, the burden remains on the movant to set forth a sufficient basis for such relief. See Goldhaber v. Kohlenberg, 395 N.J. Super. 380, 391-92 (App. Div. 2007) (holding that although "[t]he opening of default judgments should be viewed with great liberality," the "defendant seeking to set aside a default judgment must establish that his failure to answer was due to excusable neglect and that he has a meritorious defense"). Conspicuously missing from the application is any suggestion that the underlying debt, which is the subject of the litigation, is not due and owing and that there is a meritorious defense. Moreover, challenges to service of the summons and jurisdiction are unavailing as defendant filed an answer to the complaint and the default was only entered after she failed to appear for trial.

1 While these motions were accompanied by a brief and a limited certification from defendant's husband, no facts were presented to the court addressing the issues raised by the motion.