July 30, 2009
WAYNE WILLIAMS, PLAINTIFF-RESPONDENT,
GLOBAL AUTO/AUTO COLLECTION GROUP AND COX NATIONAL, LLC, DEFENDANTS-APPELLANTS.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-2683-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 16, 2009
Before Judges Lisa and Collester.
Defendant Global Auto Inc./Auto Collection Group ("Global") appeals from the trial court's July 3, 2008 denial of its motion to set aside a default judgment entered on March 10, 2008. We affirm.
Plaintiff Wayne Williams filed a pro se complaint against Cox National, LLC (Cox) and Global on July 25, 2006 seeking rescission and damages relating to the sale and return of an automobile purchased from Cox and financed by Global. After the complaint was filed, plaintiff received a letter from the law firm of Marmero & Mammano, attorneys for Cox, which indicated that the firm would be jointly representing both Cox and Global in the pending action.
When the law firm entered its formal appearance with the trial court, it was solely for defendant Cox because Global never contacted the law firm regarding the action. Since Global never answered or responded to plaintiff's complaint, plaintiff then moved for a default judgment entered against Global. On February 1, 2008, Judge William Wertheimer set the matter for a proof hearing. After notice was provided, the proof hearing was conducted on March 10, 2008. Default judgment was entered against Global in the amount of $87,283.17 for violation of the New Jersey Consumer Fraud Act, N.J.S.A. 56:8-2. Plaintiff later secured the judgment by levying on defendants' bank account for the full amount. It was only then that Global filed a motion to vacate the default. On July 3, 2008 Judge Wertheimer denied the motion based on a lack of excusable neglect.
Rule 4:50-1(a) provides that a court may relieve a party from a final judgment or order based on "mistake, inadvertence, surprise, or excusable neglect...." The decision whether or not to set aside a default judgment is left to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. F.B. v. A.L.G., 176 N.J. 201, 207-08 (2003).
"Excusable neglect" is neglect which might have been the act of a reasonably prudent person under the same circumstances. Tradesmens Nat'l Bank & Trust Co. v. Cummings, 38 N.J. Super. 1, 5 (App. Div. 1955). Carelessness may be excusable when attributable to an honest mistake which is compatible with due diligence or reasonable prudence. Mancini v. Eds ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 335 (1993).
In this case Global asserts that Cox said that the law firm would represent both defendants if Global paid $2,500 to Cox. Global claims it immediately sent Cox the $2,500, but the record contains neither the alleged agreement nor proof of payment. Moreover, Global admits that it received various notices throughout the pendency of the action that would apprise a reasonable person that the lawsuit was proceeding.
We find no abuse of discretion by the trial judge in declining to vacate the default judgment.
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