On appeal from the Superior Court of New Jersey, Law Division, Passaic County, DC-011033-01.
Before Judges King, Lintner and Lisa.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 3, 2003
We consider in this appeal whether it was a mistaken exercise of discretion for the trial judge to refuse to issue an arrest warrant for a judgment debtor who failed to answer an information subpoena, failed to respond to a motion to enforce litigant's rights, and failed to respond after being served with an order for arrest. The judgment creditor complied with all applicable court rules. All required documents were served on the judgment debtor by regular and certified mail sent to his last known address. The address was the same for all mailings. The trial judge refused to issue the warrant in the absence of proof that the debtor was personally served with or had actual notice of the order for arrest, which provided that his failure to answer the information subpoena would result in the issuance of the arrest warrant. We now reverse.
Plaintiff, New Century Financial Services, Inc., obtained a default judgment in the Special Civil Part against defendant, Wayne Nason, for $1,853.61 for credit card debt. Plaintiff mailed an information subpoena, R. 6:7-2(b)(1), simultaneously by regular and certified mail, to defendant's last known address. R. 6:7-2(c). The information subpoena was in the form prescribed by Appendix XI-L, and contained the following statements:
Attached to this Information Subpoena is a list of questions that court rules require you to answer within 14 days from the date you receive this subpoena. If you do not answer the attached questions within the time required, the opposing party may ask the court to conduct a hearing in order to determine if you should be held in contempt. You will be compelled to appear at the hearing and explain your reasons for your failure to answer.
If this judgment has resulted from a default, you may have the right to have this default judgment vacated by making an appropriate motion to the court. Contact an attorney or the clerk of the court for information on making such a motion. Even if you dispute the judgment you must answer all of the attached questions.
Defendant failed to respond, and plaintiff proceeded to the next step. It filed a motion to enforce litigant's rights. R. 6:7-2(e). The form of the motion and the supporting certification accorded with Appendices XI-M and -N. Service was again made by simultaneous regular and certified mail to defendant's last known address. R. 6:7-2(e). The motion informed defendant that, at a specified time and date, at the county courthouse, plaintiff would apply to the court for an order: (1) determining that defendant violated plaintiff's rights as a litigant by failing to comply with the information subpoena, (2) compelling defendant to immediately furnish answers to the questions in the subpoena, and (3) directing that if defendant failed to appear in court he would be arrested. The motion further stated that defendant"may avoid having to appear in court by sending written answers to the questions attached to the information subpoena no later than three (3) days before the court date."
In support of the motion, plaintiff's counsel certified that (1) he served the information subpoena on defendant at his last known address, by regular and certified mail, (2)"[t]he regular mail has not been returned by the U.S. Postal Service," and (3)"[t]he certified mail return receipt card has been signed for and returned to me." Counsel further certified that defendant had not complied with the information subpoena and that counsel requested an order enforcing litigant's rights. Finally, counsel certified that he served the motion on defendant by simultaneous regular and certified mail, as authorized by Rule 6:7-2(e).
Defendant failed to either answer the questions prior to the court date or appear in court. A Special Civil Part judge issued an"Order for Arrest" in the form prescribed by AppendiX XI-O. The order provided:
1) Defendant Wayne Nason has violated plaintiff's rights as a litigant;
2) Defendant Wayne Nason shall immediately furnish answers as required by the ...