On appeal from the Superior Court of New Jersey, Special Civil Part, Morris County, DC- 6035-99.
Before Judges Coburn, Lefelt and Axelrad.
The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Plaintiff appeals the denial of its unopposed post-judgment motion for turnover of funds from defendants' bank accounts, which stemmed from "defective service." The issue raised by this appeal is whether a judgment creditor is required to provide the result of service in order to demonstrate entitlement to a turnover order under N.J.S.A. 2A:17-63 and the Court Rules. We hold that where a levy is properly made under R. 4:59-1(g) and R. 6:7-1(b), and service of the turnover motion has been made simultaneously by certified and ordinary mail at the debtors' last known address, the application should be granted unless either mailing has been returned by the postal service for any of the reasons set forth in R. 6:2-3(d)(4) indicating that the debtor has not received the moving papers.
As a general rule, applications in aid of execution should be granted without requiring supplemental proof of service reciting that certified or registered mail service failed because it was refused or not claimed. When a motion is served by ordinary mail, it is presumed to have been delivered on the third business day after mailing. R. 1:6-3(c).
Creditor's counsel has an ethical obligation under R.P.C. 3.3(a)(5) to promptly inform the court if the ordinary or certified mail is returned with a notation such as "moved, unable to forward" or "addressee not known," or if counsel for the creditor has "other reason to believe that service was not effected." R. 6:2-3(d)(4).
In so holding, we respectfully disagree with our court's decision in Morristown Memorial Hosp. v. Tureo, 329 N.J. Super. 154, certif. denied, 165 N.J. 487 (2000). In that case, plaintiff certified that, on a specific date, a motion for a wage execution was sent to defendant's last known address by certified mail, return receipt requested, and by regular mail. The court held that in order for the creditor to rely on the ordinary mail service, it was required to submit supplemental proof of service reciting "either that the certified or registered mail was accepted and the date of acceptance or . . . [it] was either refused or not accepted." Id. at 157.
We believe that Tureo has unnecessarily delayed post-judgment collection proceedings by imposing a requirement not warranted by the rules or due process.
On August 31, 1999, plaintiff sued for unpaid medical bills for hospital services rendered to defendants' minor children. On September 14, 1999, service of the summons and complaint was effected. Since defendants failed to file an answer or other responsive pleading, the clerk of the Special Civil Part automatically entered default against defendants on October 4, 1999. R. 6:6-2. On October 25, 1999, default judgment was entered upon affidavit in the amount of $317.17, including costs. R. 6:6- 3.
The judgment debtors failed to respond to an information subpoena served on December 15, 1999, pursuant to R. 6:7-2. On January 13, 2000 plaintiff sought a writ of execution to levy upon defendants' bank accounts, pursuant to R. 6:7-1(a). On April 5, 2000, the Special Civil Part court officer levied upon defendants' bank accounts at Summit Bank containing $132.53. The court officer mailed a notice to the debtors in the form prescribed by Appendix VI, sent a copy to plaintiff, and filed a copy with the court clerk. R. 6:7-1(b), incorporating R. 4:59-1(g).
On April 25, 2000, plaintiff filed a motion for turnover of funds pursuant to N.J.S.A. 2A:17-63 and R. 4:59-1(g). Pursuant to R. 1:5-2, the motion was simultaneously served upon defendants by certified mail, return receipt requested, and regular mail at the same address contained on the summons, which was believed to be their last known address, and on the garnishee Summit Bank. Service of the motion was also made by ordinary mail on the clerk of the court pursuant to R. 1:5-2, in the event that defendants' current address was unknown to plaintiff's counsel. Plaintiff's moving papers included proof of service detailing the above in accordance with R. 1:5-3. No opposition was filed by defendants or the bank.
On May 1, 2000, defendants sent plaintiff's counsel a money order in the amount of $207.54 representing the difference between the judgment and the bank levy. On May 31, 2000, the Special Civil Part Judge denied plaintiff's motion for turnover of the levied funds, noting on the order for turnover that "[t]here is no certificate as to Results of Service." No further explanation was provided by the judge for her denial of the motion. We presume, ...