February 5, 2010
WORLDWIDE ASSET PURCHASING II, LLC, AS ASSIGNEE OF BANK OF AMERICA, PLAINTIFF-RESPONDENT,
LORETTA BRIGGS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1476-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 25, 2010
Before Judges Baxter and Alvarez.
Defendant Loretta Briggs appeals from an April 9, 2009 Law Division order confirming an arbitration award in favor of plaintiff, Worldwide Asset Purchasing II, LLC, as assignee of Bank of America. Defendant also appeals from the court's April 20, 2009 denial of her motion to vacate the arbitration award. We affirm.
On April 29, 1998, Briggs opened a credit card account with Bank of America. Although the account was in good standing between 1998 and 2003, with defendant satisfying her minimum monthly payment obligations, she breached the terms of the cardholder agreement, as of September 1, 2003, by failing to make the required monthly payment, and has not made a single payment on the account since that time. When Bank of America's three years of collection efforts proved futile, it sold the account to plaintiff.
Plaintiff instituted suit on May 14, 2008. The complaint alleged that the balance due plaintiff was $34,645, plus any additional interest accruing after the filing of the complaint and any attorney's fees. Neither defendant's answer to the complaint, nor any of her interrogatory responses, set forth any defenses. Specifically, she responded to interrogatory questions that asked her what payments she had made on the account, what defenses she asserted to plaintiff's complaint, and whether she had ever disputed any of the monthly invoices or statements that had been mailed, by stating either "[d]efendant is not inedited [sic] to plaintiff" or "[d]efendant has not requested or received any service, credit or merchandise from plaintiff." Thus, defendant's discovery answers failed to provide any defenses to plaintiff's claim, and provided no more detail than the general denial that had already been set forth in her answer to the complaint. Rather than move to compel more specific answers, plaintiff chose to await receipt of the date for the Rule 4:21A-1(a) arbitration hearing.
Plaintiff appeared on January 29, 2009 for the scheduled arbitration hearing. After two hours, when defendant had failed to appear, plaintiff asked the arbitration clerk to verify that notice had been sent to defendant informing her of the arbitration proceeding. The arbitration clerk confirmed that the notice had been sent, and that it had been sent to the same address that appeared on all of defendant's filings, and which now appears on her appellate brief. The arbitration clerk also confirmed that the arbitration notice sent to defendant had not been returned to the court by the postal service.
The clerk telephoned defendant at the telephone number specified on defendant's answer, and left several messages on defendant's answering machine. More than two hours later, at 1:30 p.m., when all of the other arbitrations had concluded, plaintiff confirmed with the arbitration clerk that defendant had not returned any of the clerk's telephone messages. In accordance with the provisions of Rule 4:21A-4(f), defendant's answer was stricken, the arbitration proceeded with only plaintiff present, and the arbitrator granted plaintiff an arbitration award in the amount of $43,099, which included all interest to date.
On January 30, 2009, plaintiff filed a timely motion to confirm the arbitration award, pursuant to Rule 4:21A-6(b)(3). Plaintiff also served a copy of the arbitration award on defendant, notifying her that if she wished to reject the arbitration award, she was required to file a demand for a trial de novo within thirty days, along with a check payable to the Treasurer, State of New Jersey in the amount of $200. Plaintiff further advised defendant that if she took no affirmative relief to vacate the arbitration award within thirty days, i.e., on or before March 1, 2009, then plaintiff would proceed to file a motion to confirm the award and to convert such award into a judgment against her.
Rather than file a motion for a trial de novo, see Rule 4:21A-6(b)(1), on February 10, 2009, defendant filed a document entitled "Defendant's Response [to] Court-Ordered Arbitration," in which she asserted that she objected to the arbitration award because she had never been notified of the court-ordered arbitration hearing and had never received plaintiff's answers to the discovery questions she propounded in October 2008. As we understand the record, defendant also failed to submit the mandatory $200 payment that is required by Rule 4:21A-6(c) when a party rejects an arbitration award and demands a trial de novo.
Because of these procedural deficiencies, the court treated defendant's filing as a mere objection to the motion to confirm the arbitration award, but not as a request for a trial de novo. Ultimately, on March 27, 2009, before the April 9, 2009 return date of plaintiff's motion to confirm the arbitration award and enter judgment, defendant filed a proper motion to vacate the arbitration award. Defendant's March 27, 2009 motion asserted the same grounds for relief that were contained in defendant's earlier February 10, 2009 "Response." Even though defendant's motion was untimely, as it was filed more than thirty days after the January 29, 2009 arbitration proceeding, the judge nonetheless considered defendant's March 27, 2009 motion.
However, the judge denied defendant's motion, concluding that defendant had not established good cause to vacate the judgment and had not provided any defenses to plaintiff's complaint, much less any meritorious defenses. In his written opinion, Judge David B. Rand relied upon Rule 4:21A-4(f), which provides that "[i]f a party defending against a claim of damages does not appear [for non-binding arbitration], that party's pleadings shall be stricken, the arbitration shall proceed and the non-appearing party shall be deemed to have waived the right to demand a trial de novo." The judge also held, relying upon Resolution Trust Corp. v. Associated Gulf Contractors, Inc., 263 N.J. Super. 332, 344 (App. Div.), certif. denied, 134 N.J. 480 (1993), that when a defendant moves to vacate a judgment, he or she has the burden to demonstrate that the failure to answer or appear in defense should be excused.
To resolve the question of whether defendant's failure to appear at the arbitration proceeding should be excused, the judge evaluated defendant's claim that she had not been notified of the date. The judge noted that the clerk's office confirmed that the arbitration notice "was mailed to the exact same address that appears o[n] [defendant's] answer and now appears on [her] motion. The notice was not returned to the clerk's office. Also, . . . numerous calls were placed to [defendant] on the morning of the arbitration." The judge concluded that plaintiff had presented no good cause warranting relief from the arbitration judgment. Thus, on April 20, 2009, the court denied defendant's motion to vacate the arbitration award.
On appeal, defendant argues that the April 20, 2009 order denying her motion to vacate the arbitration award in plaintiff's favor should be reversed because she had no notice of the arbitration hearing and the court's refusal to compel plaintiff to respond to her discovery requests was "an error and unconstitutional."
We review plaintiff's contentions in accordance with well-accepted principles. First among them is the deference owed to a trial judge's discretion when presented with a motion to vacate a judgment. The granting or denying of such a motion lies within the sound discretion of the trial judge, and will be reversed only where the exercise of that discretion has been abused. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). Second, to obtain relief, a defendant must establish both that her failure to answer or otherwise appear and defend was somehow excusable, and there exists a meritorious defense to the cause of action or the amount of the judgment. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div.), aff'd 43 N.J. 508 (1964).
Where, as here, a party fails to appear for court-ordered arbitration, such party is deemed to have waived the right to demand a trial de novo, and relief from the arbitration award will be granted "only on motion showing good cause . . . ." R. 4:21A-4(f). When such motion is made, the moving party bears the burden of demonstrating that the failure to answer or otherwise appear and defend should be excused. Resolution Trust, supra, 263 N.J. Super. at 344.
Here, defendant asserted that her failure to appear at the arbitration proceeding was excusable because she never received notice that the proceeding had been scheduled. The record contains a copy of the notice mailed by the clerk on December 3, 2008. It is presumed that an article sent by ordinary mail, bearing sufficient postage and properly addressed, has been received by the addressee. State v. Eatontown Borough, 366 N.J. Super. 626, 639 (App. Div. 2004).
Thus, the burden shifts to defendant to overcome that presumption. Defendant has provided no detail concerning any purported problems she had been having with her mail. She has not claimed that any neighbors have been receiving her mail, that she is aware of other mail and/or bills sent to her that were not been received, that she is aware of some person who has been stealing her mail, nor did she advise the trial court of any steps she has taken to rectify such purported problems with her mail, such as writing a letter to the post office or renting a post office box.
We are satisfied that the trial judge did not abuse his discretion when he concluded that defendant had not demonstrated that her failure to appear at the arbitration proceeding should be excused. See Resolution Trust, supra, 263 N.J. Super. at 344.
While the judge did not address defendant's claim that she was entitled to the vacating of the arbitration award because plaintiff never responded to her October 2008 discovery requests, we are satisfied that such contention is meritless. As plaintiff correctly observes, defendant has presented no proof that she ever served such a discovery request. The record does not include copies of any demand for discovery by defendant or any correspondence sent to plaintiff regarding plaintiff's failure to respond to such discovery. Under these circumstances, we consider meritless defendant's claim that plaintiff's failure to respond to discovery justifies setting aside the arbitration award.
Last, defendant has failed to present any defense, meritorious or otherwise, to the relief sought in plaintiff's complaint. Under those circumstances, she was not entitled to relief from judgment. Marder, supra, 84 N.J. Super. at 318.
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