TEMPLE UNIVERSITY v. THANH H. DO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

TEMPLE UNIVERSITY,

Plaintiff-Respondent,

v.

THANH H. DO,

Defendant-Appellant.

________________________________________________________________

June 27, 2014

Argued June 4, 2014 Decided

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, Docket No. DC-006098-12.

Appellant argued the cause pro se.

Brian P.S. McCabe argued the cause for respondent (Fein, Such, Kahn & Shepard, P.C., attorneys; Mr. McCabe, on the brief).

PER CURIAM

Defendant Thanh H. Do appeals from two Special Civil Part orders: one dated October 25, 2012 entering judgment in the amount of $8,649.27 for a student loan issued by plaintiff Temple University in 1998; and the other dated January 22, 2013 denying his motion to vacate a default judgment and reinstate his answer. For the reasons that follow, we reverse the orders, and remand for reinstatement of defendant's answer and a new hearing on plaintiff's motion for summary judgment motion.

I.

The facts, as we glean them from the record on appeal, are as follows. Plaintiff filed a complaint in the Law Division, Special Civil Part, asserting that defendant was indebted to it in the amount of $ $8,649.27. Plaintiff contended that the sum demanded represented a $6000 student loan1 it had issued to defendant in 1998, together with fees and finance charges that had been added to the outstanding balance when defendant failed to make the payments on time. Plaintiff supported the complaint with an affidavit from an associate bursar to substantiate the debt. Defendant, representing himself, filed his answer to the complaint. Plaintiff filed a motion to strike the answer for failure to raise a proper defense, and for summary judgment. Defendant opposed the motion, denying that he incurred the loan and asserting plaintiff did not provide proof of the debt.

At the motion hearing, defendant denied making the loan and explained all student loans he amassed while attending Temple University were consolidated into one loan with the Sallie Mae Corporation in 2003. Plaintiff presented the court an Economic Hardship Deferment application, allegedly signed by defendant in 2004, requesting a deferment from the repayment of certain student loans. Plaintiff argued by completing and submitting that application defendant acknowledged being responsible for the $6000 loan at issue. The judge, without explanation, granted plaintiff's motion to strike defendant's answer. Although defendant disputed the relevance of the deferment application, the judge found defendant responsible for the debt, and granted judgment in favor of plaintiff. The order of judgment was entered on October 25, 2012.

Defendant then filed a motion to vacate the judgment and reinstate his answer. Defendant presented information obtained from Sallie Mae regarding his loans to demonstrate he did not make a loan with Temple for $6000. On January 23, 2013, the judge denied defendant's motion to vacate the judgment, finding "[plaintiff] provided all the appropriate documentation regarding the loan." He also found defendant had failed to present any new information for the court's consideration. This appeal followed.

II.

We were initially stymied in our review due to defendant's failure to comply with the rules governing appellate practice. First, defendant's brief fails to comply with Rule 2:6-2, requiring that an appellant's legal arguments be divided "under appropriate point headings." In fact, the brief does not include a statement of the issues on appeal. Second, it appears that the record is both incomplete as to documents submitted to the trial court and overladen with materials not presented below. The appendix does not include a statement of all items submitted to the court on the summary judgment motion and motion to vacate the judgment, Rule 2:6-1(a)(1), making it difficult to discern which documents warrant our review. See Johnson v. Schragger, Lavine, Nagy & Krasny, 340 N.J. Super. 84, 87 n.3 (App. Div. 2001). In any event, we have no reason to believe that a more complete appendix would alter our legal analysis, which clearly supports why the matter must be reversed.

Plaintiff's motion to strike asserted defendant's answer failed to contest the claim. The judge acknowledged that defendant filed a timely answer to the complaint, opposed plaintiff's motion, and appeared in court. The judge also noted that defendant's opposition to the motion contained a denial of the claim permitting defendant to remain in the case. Defendant's averments were sufficient at this stage in the proceedings to defeat the motion. Even if the answer did not clearly state a defense, in the Special Civil Part, an appearance by a pro se defendant is considered an acceptable substitute for a formal answer to a complaint. See R. 6:3-1(5). The judge erred in striking defendant's answer, therefore we reverse and remand for reinstatement of defendant's answer.

Likewise the judge erred in granting summary judgment. We review a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, we must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).

Where a motion for summary judgment is based on facts either not of record or not judicially noticeable, Rule 1:6-6 allows the court to "hear it on affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify and which may have annexed thereto certified copies of all papers or parts thereof referred to therein." In evaluating a summary judgment record involving a challenge to the competency of affidavits on which the trial court relied, we review the evidentiary question for abuse of discretion and the court's "legal conclusions undergirding the summary judgment motion itself on a plenary de novo basis." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 385 (2010).

Plaintiff acknowledged there was no direct evidence of the loan because the records and promissory note had been lost. Instead, plaintiff relied upon the affidavit from the associate bursar and the deferment application. Although a review of the proceedings indicates the judge relied on the deferment application to establish defendant's ownership of the loan, he did not resolve the disputed accuracy of plaintiff's assertion, in light of defendant's denials. Moreover, plaintiff proffered the affidavit as the evidence of the debt but there is no reference in the record of the judge's consideration of the affidavit.

To grant summary judgment, there needs to be no disputed facts. Here, the judge failed to articulate the undisputed facts he relied on the reach his legal conclusion. Moreover, our review of the record reflects defendant disputed the existence of the alleged debt and that he had an outstanding obligation to plaintiff. Plaintiff could not produce defendant's alleged loan contract and the loan deferment application relied upon by plaintiff does not reference the debt at issue. Therefore, disputes of material facts were presented preventing entry of summary judgment. Based on the foregoing, we conclude the judge's failure to issue any findings of fact or conclusions of law to support summary judgment, as required by Rule 1:7-4, warrants reversal and remand for a new trial on plaintiff's complaint.2

We add the follow comments regarding the evidence presented by plaintiff. The affidavit, as presented to the court by plaintiff, is inadmissible hearsay. N.J.R.E. 801(c). "N.J.R.E. 802 starkly explains that '[h]earsay is not admissible except as provided by [the Evidence Rules] or by other law.'" State v. Buda, 195 N.J. 278, 292 (2008) (quoting N.J.R.E. 802). The only hearsay exception that might apply in this case is the business record exception to the hearsay rule. N.J.R.E. 803(c)(6) This rule renders a document admissible if the writing was (1) made in the regular course of business, (2) prepared reasonably contemporaneously with the events they describe, and (3) not confronted with a credible challenge as to its trustworthiness. Ibid. See State v. Sweet, 195 N.J. 357, 371 (2008). Here, plaintiff did not produce a foundation witness to authenticate the essential reliability of the document.

Plaintiff's affidavit also fails to satisfy the requirements set forth in the Special Civil Part rules governing default judgments. Rule 6:6-3(a) provides, in relevant part:

If the plaintiff's claim against a defendant is for a sum certain or for a sum that can by computation be made certain, the clerk on request of the plaintiff and on affidavit setting forth a particular statement of the items of the claim, the amounts and dates, the calculated amount of interest, the payments or credits, if any, the net amount due, and the name of the original creditor if the claim was acquired by assignment, shall enter judgment for the net amount and costs against the defendant[.]

On its face, the affidavit is deficient as it does not contain a verifiable loan number, dates of the loan, dates attendant to the accrued interest and the late fees, or a statement of any payments or credits, as required by Rule 6:6-3(a).

Based upon the unsubstantiated evidence submitted by plaintiff, there remains a genuine issue of material fact as to the existence of a loan and defendant's responsibility towards repayment of that loan. The judge failed to afford defendant all the legitimate inferences from the evidence adduced during the summary judgment proceedings, and then failed to make required findings of fact or conclusions of law in support of his decision.

We offer one last comment regarding the conduct of the judge. It appeared the judge below evinced an attitude of impatience towards defendant and a lack of comprehension of defendant's statements which unfairly prejudiced his case. Based on our review of the record, as well as our observations during oral argument before us, it was evident that English is not defendant's primary language. Although he received a medical degree from Temple University and is well-educated, defendant's limited verbal acuity in the courtroom impedes his ability to articulate his argument. Nevertheless, with time and patience we were able to understand defendant's argument. We cannot say the same for the trial judge who appeared to exhibit an air of dismissiveness towards him. Whether due to a language barrier, or other considerations not readily apparent to us, the judge did not afford defendant a reasonable opportunity to explain his opposition to plaintiff's claim.

"It is []axiomatic that pro se litigants are entitled to no less a degree of procedural solicitude than are represented litigants." Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982). Given our conclusion with respect to the judge's manner towards defendant, the remand hearing we have ordered must be conducted by another judge.

Reversed and Remanded. We do not retain jurisdiction.

1 Throughout the proceedings plaintiff consistently referred to the obligation as the $6000 loan, and we will do likewise.

2 Because of our determination to reverse the grant of summary judgment, we need not address defendant's remaining claim challenging the January 23, 2013 order denying his motion to vacate. R. 2:11-3(e)(1)(E).