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Bavosa v. Bobbitt

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 30, 2008

MARILYN BAVOSA, PLAINTIFF-RESPONDENT,
v.
RITA BOBBITT, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Middlesex County, SC-2609-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 5, 2008

Before Judges Wefing and R. B. Coleman.

Defendant Rita Bobbitt appeals from a May 15, 2007 order that reinstated default judgment against her and in favor of plaintiff Marilyn BaVosa in the amount of $3,809.10. Defendant had Section 8 status and became a tenant in an apartment owned by plaintiff. Defendant viewed the apartment on August 12, 2006 and filled out a rental application. Before signing a lease and with the permission of plaintiff, defendant moved her things into the apartment. Defendant then allegedly changed the locks to the apartment without plaintiff's consent. On September 6, 2006, plaintiff sent a letter to defendant stating plaintiff's intention to remove defendant from the apartment. In her letter, plaintiff stated that she did not trust defendant and indicated that she would be initiating eviction proceedings. Defendant thereafter agreed to vacate the apartment by November 15, 2006.

On October 13, 2006, plaintiff filed a small claims complaint against defendant in the Special Civil Part of the Law Division, Middlesex County, seeking back rent and payment of utility bills. After compiling a moving-out check list, plaintiff calculated that defendant owed her $3,557.92, which included alleged damage to the apartment. The court forwarded the summons to defendant via regular mail on October 24, 2006. The summons was thereafter sent again on November 6, 2006 via certified mail. The certified mailing was stamped and returned as "Unclaimed" by the U.S. Postal Service. All mail addressed to defendant was sent to a P.O. Box in Middleton, NJ, the same address from which defendant sent a certified mailing to plaintiff on November 16, 2006.

Defendant did not respond to this complaint, and the court entered default judgment in the amount of $3,809.10. That judgment was vacated on March 23, 2007. Following a motion for reconsideration, the trial court heard oral argument on May 15, 2007 and reinstated the judgment because it found the previous order vacating judgment was "improvidently granted."

Defendant then filed her Notice of Appeal in this matter. Although defendant failed to include cogent point headings in her brief, we discern that she is asserting that she was unduly prejudiced because proper service of process was never effected upon her. She also seeks a dismissal of the Small Claims Complaint by this court. As that latter issue is not properly before us, we will not comment on it in this written opinion. In any event, after a careful review of the record and applicable rules of service, we find defendant's challenge to the propriety of service wholly lacks merit.

The service of process requirements within the Special Civil Part differ from those in the Law Division. The court rules governing civil practice in the Law Division, Special Civil Part, provide:

[I]f the process is to be served in this State, or if substituted service of process is to be made within this state:

(1) Initial Service. The clerk of the court shall simultaneously mail such process by both certified and ordinary mail . . . . Process shall be mailed within 12 days of the filing of the complaint . . . .

(2) Reservice. Where initial service by mail is not effected, plaintiff or the attorney may request reservice by mail or by court officer personally pursuant to R. 4:4-4. If reservice by mail at the same address is requested the plaintiff or attorney shall be required to provide a postal verification or other proof satisfactory to the court that the party to be served receives mail at that address.

[R. 6:2-3(d).]

Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service with a marking indicating it has not been delivered, such as "Moved, Left No Address," "Attempted -- Addressee Not Known," "No Such Number/Street," "Insufficient Address,"

"Not Deliverable as Addressed -- Unable to Forward," or the court has other reason to believe that service was not effected. However, if the certified mail is returned to the court marked "unclaimed" or "refused," service is effective provided that the ordinary mail has not been returned. Process served by mail may be addressed to a post office box. Service shall be effective when forwarded by the postal service to an address outside the county in which the action is instituted . . . .

[R. 6:2-3(d)(4) (emphasis added).]

In the case before us, the court effected proper service on defendant. The court clerk sent a summons to defendant via regular mail and certified mail. The certified letter was returned to the court, marked as "unclaimed." The regular mail was not returned to the court. Therefore, according to Rule 6:2-3(e), service on Ms. Bobbitt was effective. She failed to appear in court to answer the complaint, and thus, the court entered default judgment against her. Defendant did not establish excusable neglect for her failure to respond, and we see no reason why that default judgment should be disturbed.

Affirmed.

20080530

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