MIDLAND FUNDING LLC v. MARIA SALVATICO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MIDLAND FUNDING LLC,

Plaintiff-Respondent,

v.

MARIA SALVATICO,

Defendant-Appellant.

_____________________________________

March 12, 2014

Argued February 12, 2014 Decided

Before Judges Waugh and Nugent.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. DC-13210-11.

Michael J. Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief).

Lawrence J. McDermott, Jr., argued the cause for respondent (Pressler and Pressler, LLP, attorneys; Mr. McDermott, on the brief).

PER CURIAM

Defendant Maria Salvatico appeals the Special Civil Part's November 7, 2012 order denying her motion to vacate a default judgment in favor of plaintiff Midland Funding LLC. We remand for further consideration by the motion judge.

We discern the following facts and procedural history from the record on appeal. Midland acquired a debt purportedly owed by Salvatico to Capital One Bank. On November 14, 2011, Midland filed suit against her in the Special Civil Part to collect the debt. On November 17, the clerk of court served the summons and complaint by regular and certified mail. R. 6:2-3(d). The certified mail was returned as unclaimed, but regular mail was not returned. Having obtained a default judgment in January 2012 and docketed it in April, Midland sought and was granted an order for wage execution in June. The wage garnishment began in August.

Salvatico filed a motion to vacate the default judgment on September 25, 2012. In her supporting certification, she asserted that (1) she first learned of the underlying action when she received the wage execution from her employer, (2) she never received a copy of the complaint, (3) she traveled to the Philippines during 2011, (4) she had never heard of Midland Funding LLC, (5) she contacted Midland's attorney before filing the motion but received no response, and (6) she was current on all of her bills.

Midland opposed the motion. Its attorney filed a certification asserting that, in addition to the clerk's service by regular and certified mail at Salvatico's admitted address, his firm mailed the following documents to her at that address: (1) notice of the entry of judgment on January 30, 2012, (2) notice of intention to execute on the judgment on April 17, and (3) notice of motion for the wage execution on May 1.1 The attorney further certified that Salvatico did not respond to any of those notices. The notice of motion for the wage execution was sent by regular and certified mail, with only the certified letter returned as unclaimed. Finally, the attorney certified that his firm did respond to the letter received from Salvatico.2

Oral argument was held on October 26. Because Salvatico was representing herself, the judge had her put under oath and questioned her. Salvatico offered a copy of a travel itinerary reflecting that she left the United States for the Philippines on November 18, 2011, the day after the clerk mailed the summons and complaint, and that she returned on December 10. She testified that she did have a Capital One account, but that it was current and in good standing. She also reiterated that she never received the summons and complaint.

The judge entered an order denying the motion to vacate on November 7, 2012. It was accompanied by a written opinion. Although the judge set forth the factual assertions of the parties, she made no findings of fact with respect to Salvatico's assertions that she never received the summons and complaint and did not owe anything to Capital One. Instead, the judge found that, because Salvatico did "not set forth a claim for excusable neglect for her failure to promptly litigate this matter," she did not meet the standard to vacate a judgment under Rule 4:50-1(a). This appeal followed.

On appeal, Salvatico argues that there was insufficient proof of service of the complaint and that, in any event, there was sufficient proof of excusable neglect and a viable defense to warrant vacation of the default judgment. Midland argues that the judge's decision was correct and should be upheld.

Rule 4:50-1 provides, in pertinent part, as follows:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order.

A party seeking relief from a default judgment pursuant to Rule 4:50-1(a) must demonstrate both excusable neglect and a meritorious defense. Dynasty Bldg. Corp. v. Ackerman, 376 N.J. Super. 280, 285 (App. Div. 2005) (quoting Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964)).

"A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). "[T]he opening of default judgments should be viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder, supra, 84 N.J. Super. at 319. Further, any doubts should be decided in favor of the party seeking to vacate the judgment. Mancini v. EDS ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). Nonetheless, a trial judge's decision to grant or deny an application to vacate a default judgment is accorded substantial deference and will not be disturbed absent a "clear abuse of discretion." Hous. Auth. of Morristown, supra, 135 N.J. at 283; see also Mancini, supra, 132 N.J. at 334.

Here, Salvatico took the position in her certification and her testimony at oral argument that she never received the summons and complaint and had no knowledge of the default judgment until she was notified of the wage garnishment. In her certification, she asserted that she owed nothing to Midland. When asked at oral argument whether she had an account with Capital One, she testified that she did and that it was current.3 If all of those factual assertions are true, she supplied the judge with a sufficient excuse for her failure to file a timely answer under the circumstances and demonstrated the possibility of a meritorious defense. In that case, there would have been a clear abuse of discretion in denying the motion to vacate. However, if the judge had determined that Salvatico's assertions were untruthful, that she received the complaint, or otherwise learned of the collection action or the entry of judgment at or within a reasonable time after her return to New Jersey in December 2011 and waited until her wages were garnished to seek vacation of the default judgment, then she would not have met her burden under the rule and the judge would not have abused her discretion.

Because the judge did not make any factual findings,4 we remand to the Special Civil Part for further consideration. The parties should be given a reasonable opportunity to submit additional proofs and, if the judge concludes it is necessary, testimony. The judge should then determine whether there is a sufficient basis for relief, keeping in mind the applicable liberality and indulgence required to reach a just result in such circumstances. Marder, supra, 84 N.J. Super. at 319. We do not retain jurisdiction.

Remanded.

1 Copies of those notices are not in the record.

2 Counsel did not attach a copy of the response to Salvatico's letter to the certification. Salvatico's appendix included a copy of her letter to Midland's attorney. Midland has filed a motion to strike that document from the appendix on the theory that it was not before the motion judge. In light of our decision to remand, we deny the motion as moot.

3 We note that there is nothing in the record to support Midland's assertion that Salvatico had a Capital One account that was in default, other than the unverified complaint and the assertions of Midland's attorney. There are, for example, no records from Capital One evidencing a debt owed to it by Salvatico.

4 We do not suggest that testimony is required on every motion to vacate a default judgment. In this case, the motion judge put Salvatico under oath and then questioned her, which amounted to a hearing.