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Retail Recovery Services of N.J., Inc. v. Tauschek

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 11, 2007

RETAIL RECOVERY SERVICES OF N.J., INC., PLAINTIFF-RESPONDENT,
v.
ROCHELLE TAUSCHEK, A/K/A ROCHELLE ZEHNER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-12414-00.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2007

Before Judges Cuff and Lisa.

Defendant appeals from an order denying her motion to vacate a default judgment in the original amount of $8,021.63 entered on May 31, 2002. The motion to vacate judgment was filed on March 16, 2007, after the February 15, 2007 levy by plaintiff on defendant's bank account and the filing by plaintiff of a motion to turn over funds which was mailed to defendant on February 22, 2007.

In support of her motion, defendant certified that she "was never served with the suit papers, had no knowledge that this legal proceeding had been filed against [her], and [she] certainly never knew that this Judgment was entered against [her]." She further certified that she never incurred the underlying debt, and she set forth a detailed recitation of the history of false claims against her resulting from an incident of identity theft. She certified that the source of the identity theft problem was her husband's employment with the National Football League (NFL), and that the NFL informed her husband in about 1996-97 that hackers had stolen confidential information about him and other NFL employees and their families from the NFL's computers. Her motion was also supported by an affidavit dated March 9, 2007 from an NFL official confirming this information.

In response to defendant's motion, counsel for plaintiff submitted a letter acknowledging defendant's contention that she was never served with the summons and complaint and that she disputed the underlying debt as a result of identity theft. Counsel stated in the letter, "As the Court's records should reflect, the Defendant was properly served with the Summons and Complaint on or about February 1, 2002." However, no proof of service was furnished.

Without oral argument, the judge entered an order on April 13, 2007 denying the motion to vacate default judgment, with the following statement of reasons endorsed on the order: "Decision of the Court shows no excusable neglect or valid meritorious defense to action instituted 7 years ago and Judgment 5 years ago." This appeal followed.

The unrefuted evidence in the motion record establishes that defendant was never served with the summons and complaint. Upon being served with execution of the judgment, she became aware of its existence and promptly filed her motion to vacate. Because of the lack of personal service, the court lacked personal jurisdiction over defendant, thus rendering the judgment void. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004). Accordingly, the judgment is subject to being vacated, R. 4:50-1(d), as long as the motion is filed within a reasonable time, R. 4:50-2. Defendant's motion was timely filed under all of the circumstances, because she filed it immediately upon learning of the judgment when a levy was made on her bank account. Although the showing of a meritorious defense is not required for relief under Rule 4:50-1(d), see Jameson, supra, 363 N.J. Super. at 425, we note in passing that defendant did indeed furnish evidence of a meritorious defense based on identity theft.

The order denying the motion to vacate default judgment is reversed.

20071211

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