June 21, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
EDGARDO SAEZ, DEFENDANT, AND LEXINGTON NATIONAL INSURANCE CORP., DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, No. 02-09-01124I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 25, 2007
Before Judges Wefing and Messano.
In July 2002, Lexington National Insurance Corp. ("Lexington") posted bail in the amount of $20,000 on behalf of Edgardo Saez, and he was released from custody. Saez was scheduled to appear before the trial court in October 2002, but he did not show up. While a bench warrant was issued, bail was not declared forfeited. There is no indication that Lexington was notified of Saez's non-appearance.
For reasons that do not appear in the record before us, Saez's matter was placed on the inactive list and then revived in 2005. A pre-arraignment interview was scheduled for June 14, 2005, and again Saez did not appear. Another bench warrant was issued, and this time bail was declared forfeited.
In September 2005, a default judgment was entered against Lexington for the $20,000 bail. Lexington thereafter moved to set aside that default judgment. In support of its motion, Lexington submitted the hearsay certification of its counsel which recited that Lexington had advised him that "prior to the forfeiture the bail agent kept in touch with defendant, by mail, telephone and personal contact, to insure his presence in Court." In light of Saez's disappearance from 2002 to 2005, the trial court was entirely justified in viewing that conclusory assertion with some skepticism.
Prior to Lexington's motion being heard, defendant was arrested in Massachusetts. At the time of the motion, Saez remained incarcerated in Massachusetts, awaiting extradition.
Lexington argued to the court that there had been no compliance with the requirements of R. 3:26-6(a) since it had not been notified of Saez's initial non-appearance in 2002. Relying on State v. Hawkins, 382 N.J. Super. 458 (App. Div. 2006), it argued that it was, in consequence, entitled to have the judgment vacated. Lexington has appealed from the trial court order denying its motion.
We are satisfied that the trial court was correct in rejecting this argument. Hawkins is entirely distinguishable from the present matter. In that case, as a result of the surety not being notified of a non-appearance, it agreed to issue another bail, thus significantly increasing its financial exposure. Lexington can point to no such prejudice in the instant matter.
The order under review is affirmed.
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