On appeal from the Superior Court of New Jersey, Law Division, Camden County.
Ard, King and McElroy. The opinion of the court was delivered by King, J.A.D.
In this case the bail-bond surety company contends that it should be relieved of forfeitures and judgments in 46 cases because it received no notice of its principals' court appearances before forfeiture was declared and received untimely notice of the forfeitures. Pursuant to stipulation by counsel, only the named Causey case must be specifically decided. The other cases will be controlled by this decision.
The Causey case is illustrative. Indemnity Insurance Company of North America, through its bondsman, Lowell Toll, issued recognizance # 52844 on behalf of Causey in the amount of $5,000 on August 17, 1979. Causey failed to make a scheduled appearance and forfeiture was declared on the record pursuant to R. 3:26-6(a) on September 26, 1979. Notice of the forfeiture was not given to the surety until December 24, 1980. Not until August 4, 1981 did the office of Camden County Counsel move for judgment, although settlement negotiations were conducted between December 1980 and August 1981. Thereafter INA moved for an order discharging the recognizance or setting aside
the forfeiture because of lack of notice of the dates when its principal was required for court appearances. Following oral argument, Judge Bigley entered judgment for the County in the amount of $5,000 in October 1981.
The Causey case was fairly typical of the proceedings in these 46 cases. The time lapse in Causey between forfeiture and notice to the surety that judgment on the forfeiture would be sought was 15 months, September 1979 to December 1980. In this group of cases, the longest time lapse between these events, forfeiture and notice of motion for judgment, was 16 months; the shortest lapse was two months. In nine cases the judge, upon hearing proofs from the bondsman and considering other facts, exonerated the surety.*fn1 R. 3:26-7.
This group of forfeiture cases developed against this background. In August 1972 the Administrative Office of the Courts (AOC) issued a directive titled "Procedure for Enforcement of Corporate Surety Bonds." The cover memorandum issued by Assistant Director Bambrick stated:
These procedures have been developed so as to facilitate the collection of bail from corporate sureties where there has been a forfeiture and also where the corporate surety has failed to pay on the forfeiture and it is necessary to enter a judgment thereon.
1. When there is a breach of a condition of the recognizance, the prosecuting attorney shall move for a declaration of forfeiture, R. 3:26-6(a), or the court on its own motion may declare a forfeiture. When a forfeiture is declared, the clerk of the court shall entered the word "forfeited," and the date of forfeiture at the end of the record of such recognizance, and the clerk of the court shall immediately send notice of the forfeiture and demand for payment of the amount of the bond to the bondsman (the attorney-in-fact) and a copy of same should be sent to the corporate surety care of the address on the power of attorney. The notice should include the following: docket number, defendant's name and address, amount of the bond, date of forfeiture, the name and address of the corporate surety as shown on the power of attorney, the name of the attorney-in-fact and the number of the power of attorney. The notice should state that if the amount of the bond is not paid within 20 days, the County
Counsel will be notified to enforce the liability of the surety by motion for entry of judgment.
2. If the amount of the bond is not paid within the 20 days, or the forfeiture is not set aside within the 20 days, the clerk of the court should then immediately send notice of the forfeiture to the County Counsel who shall forthwith proceed to collect the forfeited amount pursuant to R. 3:26-6(a). The notice to the County Counsel should include all the information sent to the corporate surety in 1. (above) and request the County Counsel to forthwith proceed to collect the forfeited amount pursuant to R. 3:26-6(a). The clerk of the court should send a copy of this notice to the Assignment Judge and to the County Prosecutor.
The standard recognizance form used in this state says:
We, the undersigned, jointly and severally acknowledge ourselves to be indebted to the State of New Jersey in the sum of Dollars ($) to be made and levied of our and each of our goods, moneys, chattels and real estate if default be made in the following Conditions, to wit:
The Conditions of this Recognizance are that the Defendant shall personally be and appear at all stages of the proceedings and until the final determination of the cause and that the Defendant and Surety agree to immediately notify the Court of change of address; and if the Defendant and Surety comply with these Conditions, then this Recognizance is to be void.
We, the undersigned, principals and sureties, do hereby acknowledge that by entering into this Recognizance that they submit themselves to the jurisdiction of this Court; that they irrevocably appoint the Clerk of the Court having jurisdiction of this cause as his agent upon whom papers affecting each of their liability on the Recognizance may be served; that each of them waive a Jury Trial; that the Liability of the Principal and Surety may be enforced by Motion of this action, if one is pending without the necessity of an independent action; and that the Motion may be served on the principal and Surety by mailing it by ordinary mail ...