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Palisades Collection, LLC v. Lieber

August 9, 2007

PALISADES COLLECTION, LLC, PLAINTIFF-RESPONDENT,
v.
KEN D. LIEBER, DEFENDANT, AND ELLEN J. LIEBER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-003537-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 31, 2007

Before Judges Yannotti and Miniman.

Defendant Ellen J. Lieber (Ellen) appeals from an order entered on August 24, 2006, which denied her motion to vacate a default judgment that had been entered against her. For the reasons that follow, we reverse.

Plaintiff filed a complaint in the Special Civil Part against Ellen and Ken D. Lieber (Ken) seeking a judgment for monies allegedly due on a Bank One credit card account. On March 3, 2005, the complaint was served by ordinary and certified mail upon Ellen and Ken at 240 Prospect Avenue, Apt. 105, Hackensack, New Jersey.

Defendants were married in November 1991. They separated in August 2001, and sometime thereafter Ken commenced residing at 240 Prospect Avenue in Hackensack. The marriage was dissolved by a final judgment of divorce entered on September 13, 2001, and in the property settlement agreement (PSA) executed by defendants in July 2001, Ken agreed to convey to Ellen all of his "right, title and interest" in the marital residence at 160 Overlook Avenue, Unit 12B, in Hackensack. Ellen remained in the marital residence until it was sold, and then moved in 2002 to a new home in Paramus. There is no evidence that Ellen ever resided at 240 Prospect Avenue in Hackensack.

On April 15, 2005, Ellen phoned the offices of plaintiff's attorneys. The call was recorded and a transcript of the call was submitted to the trial court. According to the transcript, someone at the law firm had phoned Ellen the night before and left a message. Ellen returned the call, and spoke with a paralegal. Ellen stated that she had never received mail at 240 Prospect Avenue in Hackensack. The paralegal asked Ellen for her current address but she did not provide it.

The paralegal told Ellen that the Bank One credit card account had been opened in 1996, and "charged off" in 2003. The debt was $5,315.10. Ellen stated that she had opened an account in 1996. Ellen said her name may have been on the card, but she insisted that she had never used the card. Ellen stated that she was going to fight collection of the debt. The paralegal did not inform Ellen that a complaint had been filed against her seeking a judgment for the monies due on the account. In the call, Ellen made no reference to the pending lawsuit.

Ellen did not file an answer to the complaint, or otherwise appear in the action. On June 8, 2005, a final judgment by default was entered against her. Notice of the judgment was sent to Ellen on June 13, 2005, at the 240 Prospect Avenue address. Ken died in December 2005. According to Ellen, she first learned of the judgment in March 2006, while investigating her credit for a car loan. On or about April 6, 2006, Ellen filed a motion to vacate the default judgment, which plaintiff opposed.

The motion was heard on June 9, 2006. The judge found that Ellen had not been properly served with the complaint but she had actual notice of the lawsuit in April 2005. However, the judge decided to deny Ellen's motion without prejudice to afford her an opportunity to present additional evidence in support of her contention that she was not responsible for the debt. An order was entered on June 13, 2006, in conformance with the judge's decision.

Subsequently, Ellen filed a motion seeking reconsideration of the June 13, 2006 order, and an order vacating the default judgment. In a certification submitted in support of that motion, Ellen asserted that, contrary to the judge's finding, she did not have notice of the lawsuit in April 2005. Ellen insisted that in the phone call on April 15, 2005, the paralegal had not informed her of the pending action.

Ellen also maintained that she was not responsible for the debt. She furnished the court with a copy of the PSA, which did not mention any specific credit card accounts and merely stated that Ellen and Ken would each be responsible for any debts in their own names. Ellen asserted, "There is no mention [in the PSA] of any Bank One Card. I know that I have not used anything except the [credit card] listed on my [case information statement] for many years." The judge denied the motion by order entered on August 24, 2006. This appeal followed.

Ellen raises the following points for our consideration: 1) the judge erred by not vacating the default judgment because the court did not have jurisdiction in the matter; 2) the judge erred by refusing to vacate the judgment because her failure to answer the complaint was excusable in the circumstances and there is a meritorious defense; 3) the judge erred by applying a higher standard to her "merely because she is an attorney"; and ...


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