On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Mercer County, Docket No. DC-82-06.
NOT FOR PUBLICATION WITHOUT
Decided Before Judges Messano and Waugh.
Defendant Wayman Brown appeals from the May 5, 2009 order of the Law Division, Special Civil Part, denying his motion to vacate the default judgment entered against him and in favor of plaintiff, Palisades Collection, L.L.C. Defendant argues that the judgment "is void because of defective service of process," and that the motion judge "abused [his] discretion when [he] failed to grant [defendant's] motion to vacate default judgment." We have considered these arguments in light of the record and applicable legal standards. We reverse.
Plaintiff filed this collection action on January 4, 2006, alleging that it was the owner of "defendant's AT&T Wireless . . . account" and that defendant was in default in the amountof $5,739.44, plus additional accrued interest. The summons and complaint were served simultaneously by regular and certified mail addressed to "Wayman Brown" at an address on North Lenape Avenue, Trenton, (the Trenton address), which was claimed to be defendant's last known address and the address of his sister, Ruth Davis. The certified mail was returned to the court on January 17 with the words "in jail" handwritten in two places on the envelope. The regular mail was not returned. On March 23, default judgment was entered against defendant. See R. 6:6-3(a) (permitting entry of default judgment "for a sum certain" by the clerk "on request of the plaintiff and on affidavit . . . if a default has been entered against the defendant for failure to appear . . . .").*fn1
On May 3, plaintiff served an information subpoena on defendant simultaneously by regular and certified mail at the Trenton address. R. 6:7-2(c). Receiving no response to the information subpoena, on June 12, plaintiff filed a motion to enforce litigant's rights, serving copies of the motion simultaneously by regular and certified mail at the Trenton address. R. 6:7-2(e). In support of the motion, plaintiff's counsel represented that the "certified mail return receipt card [for the information subpoena] [w]as . . . signed for and returned," and that the regular mail was not returned. The record does not reveal who signed the receipt card, which is not part of the appendix. On September 15, the judge granted plaintiff's motion.
On August 8, 2008, plaintiff levied on bank accounts at Sovereign Bank held jointly by defendant and Davis. Apparently in response to a "notice to debtor," see R. 6:7-1(c), on September 23, Davis filed a written objection. She claimed to be the "joint account holder" of the levied accounts, and that she held a "[p]ower of [a]attorney for [her] brother during his current incarceration." Davis further claimed that she had not been notified of the suit and further asserted that "[t]he monies being held [we]re a collection of contributions from [her] paychecks, [her] mother['s] . . . Social Security checks, and [her] sister['s] . . . pension checks[.]" Davis claimed the levied funds were intended to defer defendant's legal expenses.
On October 1, plaintiff filed a motion for turnover and mailed notice to defendant at the Trenton address. See N.J.S.A. 2A:17-63. OnOctober 10, Davis filed a pro se motion on behalf of herself anddefendant opposing the turnover. In her certification, Davis alleged that defendant was incarcerated andhad appointed her his attorney-in-fact "during his incarcerationin [Pennsylvania]." She further claimed that service of the summons and complaint in 2006 was not "proper and timely . . . ." In his opposition, plaintiff's counsel did not addressany issues regarding service of the summons and complaint, instead certifying that Davis "failed to provide proof that thefunds levied upon belong to someone other than . . . . [d]efendant or that the funds are exempt from levy."
On November 7, defendant sent a letter to the judge in which he claimed that he had "not resided at [his] sister['s] . . . home for more than eleven (11) years," and confirmed the source of the monies in the levied accounts. In an attached affidavit, defendant further claimed that he had been incarcerated since 2000, that he was currently serving his sentence in a federal prison in Pennsylvania, and that he had "never entered into any [c]ontract with . . . AT&T for the purchase of a [c]ell [p]hone prior to [his] incarceration . . . ."
The judge conducted a hearing on November 13. Appearing pro se, Davis reiterated that defendant had not resided with her for many years and that the monies in the joint accounts derived from contributions made by other family members. She also claimed that defendant did not have a cell phone and that the AT&T bill was likely her father's, Wayman Brown, Sr., who passed away two years prior to the hearing. Davis also denied that she had "refused" the summons by telling the postal authorities that defendant was "in jail." She claimed plaintiff had not made "effective service" upon defendant. On November 18, the judge entered an order for turnover compelling Sovereign Bank to pay the levied funds into court. The judge noted on the order that "[t]he joint account-holder said the funds were those of defendant being accumulated for his defense. Accordingly they are subject to levy."
On December 19, defendant filed a notice of appeal. On March 4, 2009,
we dismissed the appeal without prejudice so that defendant might file
a motion to vacate the default judgment, which he did on April 15. In
his affidavit in support of that motion, defendant reiterated that he
had been incarcerated since2000 and claimed that he "never owned,
possessed, or been under a
contract with AT&T Wireless, or any other [c]ell [p]hone provider."
Defendant further stated that his "sister . . . ha[d] been [his] Power
of Attorney from the time [he] first entered into custody, for the
express purpose of handling [his] personal, business and legal affairs
while being incarcerated . . . ." On May 5, the judge denied
defendant's motion to vacate the default judgment, finding
"[d]efendant was served at the address of his Attorney-in-Fact, the
same person and same address from which a prior motion was filed in
On July 6, 2009, we granted defendant's motion to vacate dismissal of his original appeal and reinstate the appeal. We limited the appeal, however, solely to the denial of defendant's Rule 4:50-1 motion to vacate the default judgment.*fn2
In the interim, the motion judge supplemented his decision with a written statement of reasons. R. 2:5-1(b). The judge concluded that service on defendant and his attorney-in-fact "was proper" pursuant to Rule 1:5-4(b). The judge noted that both "Davis and [d]efendant admit[ted] that Davis was [d]efendant's attorney-in-fact beginning at the time of his incarceration, before commencement of this action." Therefore, the judge reasoned that service on Davis would serve as notice of the action to defendant, and that "service through his sister and [p]ower of [a]attorney was [not] improper."
The judge further determined that personal service at the Trenton address was valid, despite defendant's incarceration in Pennsylvania. Citing Ellingburg v. Connett, 457 F.2d 240, 241 (5th Cir. 1972), the judge noted that defendant was not domiciled at the prison because he was there involuntarily and did not intend to remain there indefinitely. The judge further concluded:
[The return of] the certified mail slip by the admitted attorney-in-fact with a handwritten message was nothing more than a refusal of the certified mail, so that service would have still been complete on the mailing of regular mail, which was never returned. Both Davis's residence at [d]efendant's last known address and her status as his ...