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New Century Financial Services, Inc. v. Khalil

April 15, 2009

NEW CENTURY FINANCIAL SERVICES, INC., PLAINTIFF-RESPONDENT,
v.
BUTHAINA KHALIL, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DC-2969-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 27, 2009

Before Judges Wefing and LeWinn.

Defendant Buthaina Kahlil appeals from the April 13, 2007 order of the Special Civil Part denying her motion to vacate a default judgment against her and to rescind a Writ of Execution upon certain personal property belonging to her. For the reasons that follow, we affirm.

On or about December 27, 2002, plaintiff, New Century Financial Service, Inc., sued defendant on a credit card debt. The record contains proof of service of that lawsuit upon defendant in the form of an Automated Case Management System (ACMS) print-out showing service upon Buthaina Kahlil on February 26, 2003. Defendant failed to file an answer, and on June 6, 2003, plaintiff obtained a default judgment against her in the amount of $7,206.64.

Between September 24, 2003 and August 16, 2006, plaintiff served three information subpoenas on defendant, for the purpose of discovering her income and assets in order to execute upon the default judgment. Defendant completed, signed and returned all three subpoenas to the office of plaintiff's attorney.

As a result of information obtained from those subpoenas, plaintiff filed a Writ of Execution upon defendant's automobile and personalty. On December 20, 2006, a court officer levied upon defendant's 1995 Ford Escort.

On March 12, 2007, defendant filed a motion to vacate the default judgment and to rescind the Writ of Execution on her automobile. Defendant certified that she had "no information or knowledge of th[e] lawsuit." She further claimed that she had "not opened any credit cards since the early [']90's and [had] closed all of the cards by January 2000[,] [and] . . . had credit protection insurance on all [her] cards." Defendant asserted that she "never heard about this [credit] card or [plaintiff] before."

Plaintiff argued in opposition that defendant had failed to seek relief within a reasonable time, and had failed to establish "excusable neglect" as required by Rule 4:50-1(a).

In reply, defendant certified that she first became aware of this matter on March 7, 2007, when she received a letter from the Department of Motor Vehicles informing her of the levy upon her automobile. She claimed that she was "not in receipt of any contract making [her] liable to any other party."

On the return date of her motion, April 13, 2007, plaintiff appeared but defendant failed to appear. The court ruled: "It's a motion and the moving party has not appeared. It is now 11:25 a.m. [a]nd the motion is denied. And there was no excusable neglect. . . . [S]o it's denied."

On appeal, defendant argues that the trial court erred in denying her motion to vacate the default judgment because: (1) plaintiff failed to produce proof to support its claims; (2) defendant was not properly served with the complaint; (3) the court should have considered defendant's representation as a pro se litigant; and (4) the court erred in denying her motion due to her absence on April 13, 2007, because she had "wr[itten] in the motion papers that [she is] [d]isabled and [would] not be able to [a]attend any [h]earing."

At the outset, we note that an application to vacate a default is "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). However, "a defendant seeking to reopen a default judgment must show that the neglect to ...


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