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Wolf v. Marathon Bank

March 23, 2010

SUSAN R. WOLF, PLAINTIFF-RESPONDENT,
v.
MARATHON BANK/OCWEN BANK/BERKELEY FEDERAL, DEFENDANT-APPELLANT, AND SOVEREIGN BANK LEGAL DEPARTMENT, DEFENDANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-42210-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2010

Before Judges Grall and Messano.

Defendant Marathon Bank (Marathon) appeals from an order reinstating a default judgment entered by the Special Civil Part of the Essex County Vicinage of the Superior Court in favor of plaintiff Susan R. Wolf.*fn1 Wolf's claims against defendant Sovereign Bank (Sovereign) were dismissed on motion for summary judgment.*fn2 Marathon contends that the judgment must be vacated because the Special Civil Part's exercise of jurisdiction was contrary to Rule 6:1-3(a) and because Rule 4:50-1 required that court to grant its motion to vacate the default. As Marathon's objections to the court's jurisdiction and its allegations of excusable neglect and a meritorious defense are wholly lacking in merit, we affirm.

Wolf filed her complaint naming defendants Marathon and Sovereign on December 21, 2007. She sought to recover $14,500, inclusive of interest due, plus $250 for the costs of suit.

Wolf alleged that on April 13, 1988, she opened an individual "Retirement Acorn Guaranteed Growth Account" with Berkeley Federal Savings (Berkeley) and deposited $2000. With her complaint, Wolf included a document signed by an "authorized representative" of Berkeley memorializing the opening of her account and stating an interest rate of 8.30% per annum. Wolf also alleged that on April 17, 1989, she acquired a "Retirement Savings Certificate" from Berkeley with another $2000 deposit. That certificate provides for interest at the rate of 9.70% annually. The complaint was served on Marathon by certified mail from the Office of the Special Civil Part Clerk and received by Marathon on January 7, 2008 in Astoria, New York. There is no dispute that Marathon has a branch in Bergen County and Sovereign has branches in Essex County.

On March 12, 2008, default judgment was entered against Marathon. The judgment was executed by levy on April 18, 2008, and Marathon issued a check in the amount of $16,106.20, payable to the Superior Court of New Jersey. In turn, on May 15, 2008, the Special Civil Part Officer issued a check in the amount of $14,642, payable to Wolf.

More than five months after entry of the default judgment, on August 26, 2008, Marathon moved to vacate the default. In support of its application to vacate the judgment, Marathon, through its Vice President, asserted, without offering any explanation, that it "inadvertently omitted the submission of an Answer to the Complaint" and claimed that the court lacked "jurisdiction" because Marathon's only branch in New Jersey is located in Bergen, not Essex, County. Although Wolf opposed the motion, on September 23, 2008 the court dismissed the judgment pursuant to Rule 4:50-1. Two days later, Marathon wrote to Wolf's attorney demanding return of the funds paid to her.

On November 16, 2008, Wolf moved to vacate the September 23 order and reinstate the default judgment. Marathon opposed that motion and filed a separate motion in aid of litigant's rights demanding return of $16,106.20, which is the amount Marathon paid in response to the levy. On January 8 and 15, 2009, respectively, the court entered an order denying Marathon's motion and an order reinstating the default judgment. This appeal followed.

On appeal Marathon argues:

I. THE JUDGMENT MUST BE VACATED BECAUSE THE COURT BELOW HAD NO JURISDICATION [SIC] IN VIOLATION OF COURT RULE 6:1-3(a).*fn3

II. THE JUDGMENT MUST BE VACATED UNDER RULE 4:50-1.

These arguments do not warrant more than brief comment. R. ...


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