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Schider v. Uychich

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 22, 2007

ROBERT SCHIDER AND LAURA SCHIDER, PLAINTIFFS-RESPONDENTS,
v.
PRISCILLA M. UYCHICH, STEVEN ZAVADA AND DOCTORS FINANCIAL GROUP, DEFENDANTS-APPELLANTS.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. PAS-L-6190-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 6, 2007

Before Judges Winkelstein and Baxter.

Defendants Priscilla Uychich and Doctors Financial Group*fn1 appeal from the September 14, 2006 order denying their motion to vacate a default judgment entered against them on August 19, 2005, in the amount of $61,430. The judgment encompassed principal and interest due on two ten-year promissory notes, plus interest that had accrued between the maturity dates of the promissory notes in question,*fn2 and the date when judgment was entered on August 19, 2005.

On appeal defendants argue that the motion judge erred when he rejected their argument that they had made a sufficient showing of "excusable neglect," pursuant to Rule 4:50-1, as to have entitled them to relief from judgment. We disagree, and affirm.

I.

Defendant operated a business in which she sold financial and investment products. In 1994, plaintiffs were introduced to defendant through a mutual acquaintance, and they invested $13,000 with defendant based upon her promise to repay that principal ten years from maturity at an annual interest rate of 16.25%. When the notes matured without defendant making any effort to repay the principal and accrued interest, plaintiffs filed a motion for summary judgment seeking the entry of a monetary judgment against her.

On August 16, 2005, three days before the motion was scheduled to be heard, plaintiffs' counsel was contacted by an attorney who explained that he had been retained by defendant only a few days earlier and had not had sufficient time to familiarize himself with the file or any possible defenses. Defendant's adjournment request was denied, and plaintiffs' motion for entry of judgment was granted as an unopposed motion.

On August 1, 2006, defendant filed a motion to vacate the judgment that had been entered against her on August 19, 2005, nearly one year earlier. Even though the notice of motion specified that excusable neglect justified granting defendant relief from judgment, the only allegations potentially supporting that claim were those contained in defendant's attorney's certification.*fn3 That certification alleged that after the judgment was entered against defendant in August 2005, counsel "informed [her] that [she] needed to contact [her] former counsel . . . to obtain the file if she wanted [him] to review the matter . . . and advise [her] on how to proceed."

Counsel's certification specified that neither he nor defendant could locate her prior counsel because he was not listed in the Lawyers' Diary and apparently no longer maintained an office in New Jersey. The attorney's certification noted that he had advised defendant that if she could not retrieve the file from her former counsel, she should obtain a copy of it from "closed court records." That was the extent of the explanation defendant provided in her attorney's certification to support her contention that excusable neglect entitled her to relief from judgment pursuant to the terms of Rule 4:50-1.*fn4

The motion brought by defendant under Rule 4:50-1 was decided without the benefit of oral argument. When Judge Brogan denied the motion, he wrote on the order "this application is denied as lacking excusable neglect. Defendants' status fourteen months ago as pro se does not constitute exceptional circumstances or excusable carelessness. This is further compounded by the fact that defendants retained counsel over one year ago yet apparently did nothing for 360 days."

We review Judge Brogan's order denying relief from judgment in accordance with our standard of review. "A motion under Rule 4:50-1 is addressed to the sound discretion of the trial court, which should be guided by equitable principles in determining whether relief should be granted or denied," and "the decision granting or denying an application to open a judgment will be left undisturbed unless it represents a clear abuse of discretion." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). In pertinent part, Rule 4:50-1(a) provides that "[o]n motion, with briefs, and upon such terms as are just, the court may relieve a party . . . from a final judgment or order for the following reasons: (a) . . . excusable neglect . . . ." The term "excusable neglect" has been defined as excusable carelessness "attributable to an honest mistake that is compatible with due diligence or reasonable prudence." Mancini v. EDS, 132 N.J. 330, 335 (1993).

We agree with Judge Brogan's conclusion that difficulty in reconstructing the file or in locating prior counsel did not constitute excusable neglect, especially for a period of nearly one year. At oral argument, defendant argued before us that her pro se status in August 2005 and lack of familiarity with court rules constituted excusable neglect. Parties who are not represented by counsel are expected to respond in a timely fashion to motions that are filed against them. Pro se litigants are required to abide by the same rules as parties represented by counsel. Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997). Defendant has provided no evidence on personal knowledge of her neglect in failing to respond to plaintiff's motion for summary judgment. See R. 1:6-6 (affidavit must be made on personal knowledge). Nor has defendant presented evidence to justify her delay for nearly a year in seeking to vacate the resulting judgment. Judge Brogan's decision of September 14, 2006, finding no excusable neglect and denying relief under Rule 4:50-1, was not a mistaken exercise of his discretion.

Affirmed.


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