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NCO Portfolio Management v. Lorenzo

September 10, 2010

NCO PORTFOLIO MANAGEMENT, ASSIGNEE OF CHASE, PLAINTIFF-RESPONDENT,
v.
EDWIN LORENZO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. DC-15062-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 3, 2010

Before Judges Axelrad and Espinosa.

Defendant has been incarcerated at East Jersey State Prison since 2002. In 2007, plaintiff, as assignee of Chase Manhattan Bank, N.A. (Chase), filed a complaint against Edwin Lorenzo and allegedly served him by mailing the complaint by ordinary and certified mail to an address in Woodbridge and thereafter obtained a default judgment. Defendant appeals from the denial of his motion to vacate the default judgment. We reverse and remand.

The summons and complaint were mailed to Edwin Lorenzo at the Woodbridge address pursuant to R. 6:2-3(d)(1). The Rule states, "Attorneys shall submit to the clerk the mailing addresses of parties to be served." In the certification of service of process later submitted by counsel, the basis for the address provided was set forth in apparently boilerplate language as follows:

2. At the time the defendant(s) account was placed with our office for handling, our client and/or their agent provided us with certain information regarding its claim against the defendant(s). The information included but is not limited to the defendants(s) last known address.

3. This office also attempted to verify the address through one of several methods which may include telephone calls, a postal search, credit report, address database and other proprietary address confirmation methods.

[(Emphasis added).]

Although paragraph 3 identified a number of available methods for confirmation of the address, it failed to identify what was attempted, when the attempt was made, or what information was obtained from the attempt. As a result, paragraph 3 adds little, if anything, to verify that the Woodbridge address would be effective for service upon defendant. We are then left with the representation that the address was provided as the last known address by Chase. Plaintiff did not provide a copy of a billing statement showing defendant's address. Although the certification states that this information was provided at the time that the account was placed with plaintiff for collection, no date was given for that placement and so, it is unknown how old the information was. However, because the copy sent by certified mail was returned as "unclaimed" and the copy sent by ordinary mail was not returned to the court, defendant was deemed to be personally served pursuant to R. 6:2-3(d)(4).

Thereafter, plaintiff served defendant with its application for default judgment, mailing it to defendant by ordinary mail at the Woodbridge address. A copy of the judgment and an information subpoena were served by certified and ordinary mail to the Woodbridge address. Plaintiff also filed a motion to enforce litigant's rights, again serving plaintiff by certified and ordinary mail to the Woodbridge address. In each instance, the mail sent by certified mail was returned as "unclaimed" and the ordinary mail was not returned.

In June 2009, defendant filed a motion to vacate the default judgment. He submitted a certification in support of the motion in which he stated that he became aware of the judgment against him when he ordered a credit report in May 2009 and learned that plaintiff's counsel had requested a credit report. He wrote to plaintiff's counsel, asking why the report had been requested. In response, plaintiff's counsel advised that the report had been requested as part of an effort to collect the amount due on a defaulted credit card account that had been opened in March 1997 and identified the account number.

Defendant's certification also stated that he had never received any notice about the debt from plaintiff's law firm since his incarceration and that he has "never lived at that address, nor have I ever provide[d] that address to anyone."*fn1

Defendant's motion was denied in an order that bore the explanation, "No meritorious defense plead [sic]." A subsequent motion for ...


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