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Asset Acceptance LLC v. Scott

October 30, 2007

ASSET ACCEPTANCE LLC, PLAINTIFF-RESPONDENT,
v.
NORMAN L. SCOTT, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Camden County, DC-9183-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: October 9, 2007

Before Judges C.S. Fisher and C.L. Miniman.

Defendant Norman L. Scott appeals from the denial of his motion to vacate a judgment by default and from the entry of an order for wage execution. He contends that he was not properly served and asserts as a defense that the statute of limitations bars this action. We reverse.

Plaintiff Asset Acceptance LLC filed a Special Civil Part complaint on July 15, 2005, seeking a $7676.37 judgment against defendant. Plaintiff's attorney signed a Statement of Case alleging that plaintiff was the assignee of "WFNNB/Micro Furniture" to which defendant owed the principal sum of $3578.38 plus $4097.99 as interest on principal "for the use and retention of a credit card."

Attached to the Statement of Case was an affidavit of Flora Stewart who certified that she was familiar with the records of plaintiff,*fn1 that plaintiff was the owner of a claim against defendant on Account Number 005856370021279618 from WFNNB/Micro Furniture and that the total sum due was $7676.37. She further stated "that the business records of this account received at the time of purchase have been reviewed and the information contained herein was obtained from said business records." She did not indicate who reviewed the records nor did she aver that the account was a credit card.

Also attached to the Statement of Case was a Statement of Account that indicated that the date of the last payment was January 30, 2000, and the date of charge off was April 25, 2000. It further indicates that plaintiff acquired the account on July 13, 2002, from "World Financial/WFNNB/Micro Furniture."

The summons was addressed to "Norman L Scott, 211 Keats Ct, Sicklerville NJ 08081-1112" and was sent by certified and regular mail. The certified mail was returned on July 27, 2005, as unclaimed. The record does not indicate if the regular mail was returned or not. When no answer was filed, Angela Harkness, an employee of plaintiff as a records custodian, signed a certification of proof and nonmilitary service on September 6, 2005. She averred that "[t]he goods [or] services for which said charges were made, were sold, delivered to and accepted by the Defendant at the special instance and request of Defendant." She further averred that the charges were fair and reasonable and in accordance with the agreement. She certified to the amounts due consistently with the Statement of Account. The certification was filed on September 12, 2005.

There is no further evidence or pleadings in the record on appeal and we glean the following additional facts from the written opinion of the Special Civil Part judge denying defendant's motion to vacate the judgment by default, which was apparently triggered by an application for a wage execution. The opinion was addressed to defendant at 211 Keats Drive, not Keats Court. The judge found that the judgment was entered against defendant on October 4, 2005. Defendant's motion was heard on January 4, 2006. The judge addressed two issues in his opinion, failure of service and the statute of limitations.

The defendant apparently certified that he had not received the summons and complaint. The court resolved this issue as follows:

The Court record shows that the defendant was served on July 28, 2005, at 211 Keats Court, Sicklerville, New Jersey. It's difficult for me to believe that the defendant wasn't served, because he filed this Motion from the same address at 211 Keats Drive. The record shows that he was properly served . . . .

As to the statute of limitations defense, the judge determined that "[p]laintiff is the assignee of a debt owed to the credit card company known as World Financial Network National Bank." The judge rejected defendant's argument that N.J.S.A. 12A:2-725(1) governed the time in which suit may be brought. That section of the Uniform Commercial Code (UCC) establishes a four-year statute of limitations. The judge explained that UCC § 2-725 applied only to the sale of goods. He found that UCC § 2-102, N.J.S.A. 12A:2-102, made it clear that UCC § 2-725 did not apply "to any transaction which, although in the form of an unconditional contract to sell . . ., is intended to operate only as a security transaction." He concluded that the proper statute of limitations was the six-year period prescribed by N.J.S.A. 2A:14-1. Concluding that there was no defense to the action and finding that defendant had been properly served, the judge denied the motion to vacate and ordered the wage execution. This appeal followed.

Pursuant to R. 6:2-3(d)(1) the clerk of court effects service by mailing the summons and complaint by certified and regular mail. If the certified mail is returned as unclaimed or refused, then the regular mail service constitutes effective service. R. 6:2-3(d)(4). ...


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