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Testa v. Zimmerman

Decided: July 8, 1987.


On appeal from the Superior Court, Law Division, Cumberland County.

Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.


Intervenors, David Kemenash and Kathleen Kemenash, appeal the December 8, 1986 order amending the judgment entered against the defendant, Donald Zimmerman, to the extent that the order enters the judgment nunc pro tunc from its originally docketed judgment date of August 22, 1986 to April 24, 1986.

On December 11, 1981 Zimmerman and David Kemenash jointly purchased from Joseph Bonaccorsi and Andrea Bonaccorsi certain real estate located in Vineland. At the time of closing Zimmerman advised the Bonaccorsis that he did not have sufficient funds for his share of the purchase price. He therefore executed an unsecured promissory note to the Bonaccorsis in the amount of $6,529 as part of the purchase price. The Bonaccorsis were unable to take a second mortgage from Zimmerman to secure the promissory note because the Citizens United Bank, N.A. ("Citizens") which was providing the funds for the first mortgage in the sum of $85,000 would not permit any secondary financing. The Bonaccorsis granted a power of attorney to Joseph P. Testa, Esquire and moved to Italy. Zimmerman subsequently defaulted on both the first mortgage and the unsecured note to the Bonaccorsis.

Citizens, now New Jersey National Bank, demanded full payment of the balance due on the note and mortgage in the amount of $91,671.80 from the Kemenashes. The Kemenashes paid that sum in accordance with an agreement dated September 26, 1985 under which the New Jersey National Bank assigned to them its rights and interests under the note and

mortgage. The Kemenashes then instituted a foreclosure action against Zimmerman on October 4, 1985, in which Zimmerman was represented by counsel and filed an answer. That litigation was resolved on August 8, 1986 by Zimmerman transferring his interest in the Vineland real estate to the Kemenashes by a warranty deed which was recorded in the Cumberland County Clerk's Office on August 14, 1986. Prior to accepting the settlement and deed the Kemenashes obtained a title search which showed the property to be free and clear of all liens, except for a judgment to a plumbing supply company and certain attorneys' fees owed by Zimmerman. An additional payment of $815.38 was made by the Kemenashes to satisfy the judgment, the attorneys' fees owed by Zimmerman and as consideration for Zimmerman's execution of the deed in lieu of foreclosure.

Testa instituted suit against Zimmerman on August 16, 1985 for the moneys due on the unsecured note. Zimmerman did not file an answer to Testa's action. Testa asserts that on October 29, 1985 he mailed a Request to Enter Default to the Superior Court but that he did not receive the return of a filed copy. Testa then wrote to the Superior Court on February 13, 1986 and received no response. He wrote again on April 23, 1986 and, having received no response to that letter, on June 20, 1986 he telephoned the Office of the Clerk of the Superior Court and was told that there was no record of their having received the Request to Enter Default. By this time the six month period after default provided for in R. 4:43-1 had run and default could no longer be entered by the Clerk of the Court. Plaintiff therefore filed a motion for entry of default which resulted in the execution of an order on July 18, 1986 allowing entry of default out of time.

Testa maintains that the day before receiving the order allowing default out of time he received a filed copy of his Request to Enter Default dated October 29, 1985 with a mark showing that it was filed by the Clerk of the Superior Court on April 24, 1986. Testa executed an affidavit of proof and of

non-military service, dated July 22, 1986 and filed August 21, 1986, in order to obtain a final judgment by default. Judgment was entered by the Clerk of the Superior Court on August 22, 1986 in the sum of $6,996.45 together with costs. A writ of execution was issued on August 28, 1986. Inasmuch as Zimmerman's interest in the property had been conveyed prior to the entry of judgment, plaintiff moved for the order now appealed from so that his judgment lien would have priority over the transfer and constitute a lien upon the property. The Kemenashes intervened and were heard through counsel prior to the granting of the order under review.

The motion judge in granting relief stated:

We find no basis for the Law Division to have given the Testa judgment a preference over the rights acquired by the Kemenashes to Zimmerman's interest in the real property. Plaintiff cites St. Vincent's Church v. Borough of Madison, 86 N.J.L. 567, 570 (E. & A. 1914) for the proposition that ". . . whenever delay in entering a judgment is caused by the action of the court, judgment nunc pro tunc will be allowed as of the time when the party would otherwise have been entitled to it." However, ...

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