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Intek Auto Leasing Inc. v. Zetes Microtech Corp.

Decided: December 1, 1993.

INTEK AUTO LEASING, INC., PLAINTIFF-RESPONDENT,
v.
ZETES MICROTECH CORP. AND TESFAYE MITSLAL, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Bergen County

Pressler, Brochin and Kleiner. The opinion of the court was delivered by Brochin, J.A.D.

Brochin

[268 NJSuper Page 427] According to the verified complaint of Intek Auto Leasing, Inc., it leased a 1987 Mercedes Benz 300 SDL automobile to defendants Zetes Microtech Corporation and Tesfaye Mitslal. Defendants

ceased making the required lease payments, and plaintiff tried unsuccessfully to repossess the automobile, alleging that its reasonable value was $24,200. The complaint, which was filed July 11, 1991, sought damages and repossession of the automobile.

A request to enter default for failure to answer was filed on August 30, 1991. On April 9, 1992, plaintiff filed a notice of motion for leave to enter a default judgment against defendants for $41,496.48, and an order for default judgment in that amount was entered against "defendant"*fn1 on May 1, 1992. Because the default judgment was sought more than six months after entry of the default, plaintiff moved on notice to defendants. See R. 4:43-2(d) (if party entitled to default judgment does not apply therefor within six months after entry of default, judgment shall not be entered except on application to the court and written notice to defaulting party served at least five days prior to hearing).

In response, a cross-notice was filed on behalf of both defendants for an order vacating the default and for leave to file an answer. The notice was signed only by defendant Tesfaye Mitslal who is not a New Jersey lawyer. Defendant Mitslal's response appears to have been prompted by the plaintiff's demand for the entry of a money judgment. Defendant Mitslal's supporting certification states that he was served with plaintiff's notice of motion, presumably its notice of motion for issuance of a writ of replevin, but that the notice of motion was not accompanied by a complaint. He alleged that he had a meritorious defense, although he did not disclose what it was, and he asserted that if he had been served with the complaint, he would have answered within the time allowed.

The certification of plaintiff's attorney filed in opposition to defendants' cross-motion alleges that the complaint and a notice of motion for a writ of replevin were mailed to each of the defendants on July 3, 1991. Copies of return receipts for mail directed to

Zetes Microtech Corporation and to Tesfaye Mitslal are attached to the certification. The certification also alleges that the "file retrieved from prior counsel reflects service of process was effectuated by Guaranteed Subpoena Service" and that "[o]n August 3, 1991, defendant personally acknowledged receipt of the Summons and Complaint which was served upon him."

Two identical forms of acknowledgment of service, both dated August 3, 1991, state, "I Tesfaye Mitshal [sic] acknowledge receipt of a summons, complaint, writ or warrant in the matter of Intek Auto Leasing vs. Zetes MicroTech Corp. Docket Number Ber-L-9180-91 in accordance with [ R. ] 4-4:6 [sic].*fn2 Each of these forms bears an illegible signature as well as the certification of Chris LaBadie, a New Jersey notary public, that defendant Mitslal signed it in his presence. Mr. LaBadie has also sworn to affidavits which state that copies of the summons and complaint were personally served on defendant Mitslal, individually and as agent for Zetes Microtech Corporation.

In a further certification to the court in opposition to plaintiff's motion for the entry of a default judgment, Mr. Mitslal denied having been served with the summons and complaint, claimed that the signatures on the forms of acknowledgement of service were not his, and asserted that he was not in default under the lease. He also stated:

I do not know how [plaintiff's attorney] can seek a judgment in the amount of $48,642. Representatives of plaintiff have indicated orally and in writing that my maximum liability to plaintiff did not exceed approximately $12,000 and this representation also includes the fact title to the subject automobile should be in me with nothing else owed.

Plaintiff's motion for the entry of a default judgment was granted and defendants' motion to vacate the default previously entered was denied. ...


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