MIDLAND FUNDING, LLC v. LARRY D. PRETLOW, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MIDLAND FUNDING, LLC,

Plaintiff-Respondent,

v.

LARRY D. PRETLOW, JR.,

Defendant-Appellant.

_______________________________

November 28, 2016

Argued October 31, 2016 Decided

Before Judges Nugent and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. DC-8035-10.

Larry D. Pretlow, Jr., appellant, argued the cause pro se.

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

PER CURIAM

In this collection case, default judgment was entered against defendant, Larry Pretlow, Jr. After his motion to vacate the judgment was denied, defendant moved for reconsideration. It is from the denial of the reconsideration motion that defendant now appeals. Upon reviewing defendant's arguments in light of the applicable legal principles, we affirm.

After defendant defaulted on a credit card obligation, plaintiff, Midland Funding, LLC, as owner of the debt, filed suit. The summons and complaint were served on defendant by regular and certified mail by the Special Civil Part clerk. The certified mail was marked as "unclaimed"; the regular mail was not returned. No answer was filed and default judgment was entered June 18, 2010. The judgment was served on defendant at the forwarding address provided by his previous landlord.

In July 2013, defendant had a phone conversation with plaintiff's counsel about his inability to satisfy the judgment, stating that he was considering filing for bankruptcy. There was no further contact from defendant nor any attempt to satisfy the judgment, and in November 2013, plaintiff applied for a wage garnishment. The application was unopposed, and the order was issued and served upon defendant's employer in December 2013. Wage deductions commenced in December 2014.

Plaintiff also obtained a writ of execution on defendant's bank account. This action prompted a second telephone call by defendant to plaintiff's counsel. Defendant advised he had retained counsel, and plaintiff directed him to contact his attorney. Hearing nothing further, plaintiff served a motion for turnover of the bank funds upon defendant and his counsel. Defendant contacted plaintiff a third time, objecting to a fee his bank had imposed upon him.

In May 2015, defendant, appearing pro se, filed a motion to vacate default judgment claiming he had moved from the service address and was living in another county at the time of service of the complaint. Plaintiff's opposition to the motion referred to defendant's supporting documents, which confirmed he was still living in the county at the time of service and had been served at the proper address. After oral argument, the judge found defendant had been properly served and the motion to vacate judgment was denied.

Defendant moved to reconsider the order, contending that the certified mail receipt attached to the service envelope received from the clerk's office listed his apartment as L1 when in fact he resided in L12. He therefore argued service was improper. In response, plaintiff provided the "return of service" of the summons that noted Apartment L12 as the address to where the complaint and summons were sent. At oral argument, defendant confirmed he had spoken with plaintiff's counsel several years earlier about the judgment. Finding that defendant was aware of the judgment years before the filing of the motion to vacate, the judge ruled the motion was untimely and the judgment was properly entered.

On appeal, defendant raises the same issues as he did to the Special Civil Part judge, contending he did not receive the summons and it was improper for the court to deny his motion simply because of "the age of the matter."

We review the judge's decision under an abuse of discretion standard. Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002). Although plaintiff has not provided a citation to any rule or case law in support of his appeal, we construe his arguments as being brought under Rule 4:50-1. Plaintiff has not demonstrated any evidence to support his application for relief from the judgment under sections (a)-(d); we similarly find the catchall provision of Rule 4:50-1(f) unavailing under these facts.

After reviewing the proofs, the judge found service was proper. Contrary to defendant's assertions, he resided in the county and the return of service had his correct apartment number listed. Furthermore, we note that a defendant can be estopped from challenging service of process by his conduct after being notified of the action or where he has received notice of the judgment's entry. Wohlegmuth v. 560 Ocean Club, 302 N.J. Super. 306, 311-12 (App. Div. 1997). If defendant did not receive the notice of entry of the judgment as he contends, he was certainly aware of it in 2013 when he contacted plaintiff to discuss the debt. He was aware of the garnishment of his wages in 2013 and the levy of his bank account in 2014. Defendant telephoned plaintiff two additional times in those years to discuss the judgment.

Rule 4:50-2 requires that all motions under Rule 4:50-1 be brought within a reasonable time. We are satisfied that defendant's failure to take any action until more than five years after the entry of judgment, or, at the very least, the lapse of two years after his first phone contact with plaintiff, was not reasonable under the totality of the circumstances. See Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (finding Rule 4:50-1(f) is available only when truly exceptional circumstances are present).

Affirmed.