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Worldwide Asset Purchasing II, LLC v. Briggs

February 5, 2010

WORLDWIDE ASSET PURCHASING II, LLC, AS ASSIGNEE OF BANK OF AMERICA, PLAINTIFF-RESPONDENT,
v.
LORETTA BRIGGS, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-1476-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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