October 18, 2010
NORTH STAR CAPITAL ACQUISITION, LLC, PLAINTIFF-RESPONDENT,
ABIP B. MUSTAFOSKI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-15921-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 14, 2010
Before Judges Wefing and Payne.
Defendant, Abip B. Mustafoski, appeals from a June 26, 2009 order denying his motion to vacate a default judgment in the amount of $947.86 entered against him and in favor of plaintiff, North Star Capital Acquisition, LLC, two and one-half years earlier on December 29, 2006. We affirm.
Counsel for North Star has certified that, on October 25, 2006, Mustafoski was served with the complaint in this matter, arising from an allegedly past due account that Mustafoski, a Macedonian native, held with Wells Fargo Financial that had been assigned to plaintiff North Star. Mustafoski's son Dzeni signed the acknowledgment of service. When Mustafoski failed to answer the complaint, a default judgment was entered and subsequently docketed pursuant to N.J.S.A. 2A:16-36 as DJ-081428-07. Mustafoski was informed of the judgment by a letter sent to his residence address that was dated January 15, 2007. On February 16, 2007, Mustafoski's son, with his father's permission, contacted North Star's counsel and sought to settle the matter. An agreement was reached whereby Mustafoski was to pay fifty dollars per month on the judgment debt, commencing March 15, 2007, but he failed to do so and, on March 27, 2007, counsel for North Star cancelled the settlement.
Following receipt of an order permitting a levy on Mustafoski's personal property and real estate, on June 20, 2007, North Star's statutory lien was perfected by a levy on Mustafoski's interest in his residence. Additionally, on July 9, 2007, North Star's counsel filed a motion in aid of litigant's rights as the result of Mustafoski's failure to respond to an information subpoena served on him. Following service of the motion, Mustafoski's son again contacted counsel for North Star to negotiate a settlement, but none could be reached. On August 3, 2007, an order was issued for Mustafoski's arrest as the result of his failure to respond to the information subpoena. In an additional order dated October 5, 2007, Mustafoski was ordered to contact the Passaic County Sheriff's Office and to permit entry into his home to conduct a levy and inventory of his personalty.
On October 16, 2007, a person named Ramsey Khattab contacted counsel for North Star on Mustafoski's behalf, requesting verification of the judgment and stating that Mustafoski planned to file for bankruptcy. On October 30, 2007, an additional warrant for Mustafoski's arrest was issued, resulting in his arrest. On November 16, 2007, the sheriff was denied entry to Mustafoski's home by his wife. Responses to North Star's information subpoena were received on December 6, 2007.
On August 14, 2008, counsel for North Star filed a motion for Mustafoski to pay the judgment out of self-employment income. The unopposed motion was granted on September 16, 2008. Thereafter, counsel received correspondence from Khattab on behalf of Mustafoski advising that he would file suit for alleged violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§1692 to 1692p.
On March 2, 2009, counsel for North Star filed a motion to hold Mustafoski in contempt of the order to pay out of income. On March 16, 2009, Mustafoski moved to vacate the default judgment. In support of his motion Mustafoski submitted an affidavit, dated March 16, 2009, in which he acknowledged having become aware of the action in or around April 2007*fn1 and acknowledged contacts on his behalf by Khattab in July and December 2007, in January 2008 and in January 2009. Mustafoski argued that neither North Star nor its counsel had properly validated the alleged debt in accordance with the Fair Debt Collection Practices Act.
A hearing in the matter was scheduled for May 28, 2009 but was adjourned to permit the retention of a Macedonian interpreter. The motion was argued on June 26, 2009 and denied. The judge held that Mustafoski could not rely on the grounds set forth in Rule 4:50-1(a), (b) and (c) because his motion was not filed within one year after the entry of judgment as required by Rule 4:50-2. The judge further held that Mustafoski had not demonstrated any of the remaining grounds for vacating a judgment set forth in Rule 4:50-1.
Mustafoski has appealed, raising the following arguments:
1. COURT MADE REVERSIBLE ERROR AND ABUSED DISCRETION WHEN IT HELD DEFENDANT TO HIGHER STANDARDS.
2. DEFENDANT IS ENTITLED TO A TRIAL ON THE MERITS. COURT ABUSED DISCRETION WHEN IT DENIED DEFENDANT TRIAL ON THE MERITS.
3. DEFENDANT SHOWED AN EXCUSABLE NEGLECT. HOWEVER, THE REQUIREMENTS FOR AN EXCUSABLE NEGLECT AND A MERITORIOUS DEFENSE MAY BE RELAXED IN THE INTEREST OF JUSTICE UNDER RULE 4:50-1(f) AND OTHER APPLICABLE LAWS. COURT ABUSED ITS DISCRETION WHEN REFUSED TO VACATE JUDGMENT.
4. PLAINTIFF COULDN'T FILE A LAWSUIT OR PROCEED ANY FURTHER SINCE PLAINTIFF FAILED AND REFUSED TO VALIDATE THE ALLEGED DEBT AS REQUESTED BY DEFENDANT WHEN PLAINTIFF FIRST CONTACTED DEFENDANT DEMANDING PAYMENT. THEREFORE, THE DEFAULT JUDGMENT IS VIOLATIVE TO THE FDCPA, 15 U.S.C. §§ 1692.
5. PLAINTIFF, ON RECORD, FAILED TO SHOW STANDING TO SUE, PROVE ELEMENTS OF HIS CAUSE OF ACTION, DAMAGES, AND TO STATE A CLAIM UPON WHICH A RELIEF COULD BE GRANTED. THEREFORE, THE COURT ERRED WHEN GRANTED DEFAULT JUDGMENT.
6. TRIAL COURT ABUSED DISCRETION AND MADE A REVERSIBLE ERROR WHEN IT ENTERED A DEFAULT JUDGMENT WITHOUT REQUIRING PROOF OF LIABILITY. EVEN DEFAULT JUDGMENTS MUST BE PROVED. THE TRIAL COURT VIOLATED THE STANDARDS FOR ENTRY OF JUDGMENT BY DEFAULT.
7. TRIAL COURT LACKED SUBJECT MATTER JURISDICTION RENDERING ITS DEFAULT JUDGMENT VOID AB INITIO.
Our review of the record in this matter in light of the arguments of the parties and applicable precedent satisfies us that Mustafoski's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). We note that Mustafoski was properly served in the matter, and he failed to answer or otherwise timely contest the debt. Thereafter, a judgment was entered in this matter by the clerk pursuant to Rule 6:6-3(a). Extended collection efforts ensued, with frequent acknowledged contact between authorized representatives of Mustafoski and counsel for North Star. Nonetheless, Mustafoski did not seek to vacate the judgment entered against him until two and one-half years after its entry. While Mustafoski argues that the judgment was improperly entered as the result of failure to comply with the FDCPA, he failed to comply with the time limitations set forth in 15 U.S.C.A. § 1692g governing the validation of the debt. We are satisfied, as was the motion judge, that Mustafoski has failed to demonstrate a valid reason for vacating the judgment against him pursuant to Rule 4:50-1.