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New Century Financial Service, Inc. v. Sutton

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


April 29, 2008

NEW CENTURY FINANCIAL SERVICE, INC., PLAINTIFF-RESPONDENT,
v.
ROY F. SUTTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0046-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2008

Before Judges Wefing and Parker.

Defendant Roy F. Sutton appeals pro se from an order entered on August 20, 2007 denying his motion to vacate a default judgment and granting plaintiff's motion to confirm an arbitration award in favor of plaintiff in the amount of $4,349.26. We affirm.

The complaint was filed in Special Civil Part, Atlantic County, on July 23, 2004. Defendant answered and counterclaimed on August 26, 2004. On September 24, 2004, defendant's motion to transfer the case to the Law Division was granted on the ground that the counterclaim exceeded the jurisdictional amount of the Special Civil Part. Defendant dismissed the counterclaim in March 2005 and the matter was scheduled for non-binding arbitration. Defendant failed to appear for the arbitration, however, and plaintiff's motion to confirm the arbitration award and enter a default judgment was granted.

A default judgment was entered on May 27, 2005. Defendant did not move to vacate the default until July 13, 2007. He did not present any substantial reason for the delay, although he denied the debt on his GMcard on the ground that he had "exercised credit disability life insurance terms of [a Household Life Insurance, Co.] policy."

The trial court rendered a written memorandum of decision on August 17, 2007, in which it reviewed the requirements of Rule 4:50-1 and concluded that defendant did not present sufficient reason for vacating the judgment.

In this appeal, defendant argues that: (1) the trial court abused its discretion in denying his motion to vacate the default; (2) the trial court erred in entering a default without fair notice to defendant; and (3) "TENSIONS CREATED BY THE MANDATORY TRANSFER COMPONENT OF R. 6:4-1(c) AND THE PERMISSIVE REMAND COMPONENT OF R. 6:4-1(e) CREATE AN UNCONSTITUTIONALLY VAGUE SITUATION FOR COURTS AND LITIGANTS, RESPECTING R. 6:1-2(a)(1) [AMOUNT IN CONTROVERSY DETERMINING JURISDICTION]."

We have carefully considered defendant's arguments in light of the applicable law and we are satisfied that they lack sufficient merit to warrant discussion in a written decision. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons set forth in Judge Daryl F. Todd's written memorandum of decision dated August 17, 2007. Nevertheless, we add the following comments.

Defendant argues that the default judgment was entered without fair notice to him because plaintiff's notice of motion to confirm the arbitration award and enter default incorrectly listed Essex rather than Atlantic County. Defendant did not deny receiving the notice, nor did he attest that he responded to the motion in either Essex or Atlantic County. As Judge Todd correctly noted, the error in the notice of motion did not deprive the court of jurisdiction or defendant of his due process right to notice. Defendant failed to respond to the notice of motion in either county, failed to move timely to vacate the default pursuant to Rule 4:50-2 and failed to provide any basis for a finding that the more than two-year delay in filing his motion to vacate the default judgment was excusable neglect.

Affirmed.

20080429

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