NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010
Before Judges Ashrafi and Nugent.
Defendant Roberto Beras appeals from an order of the Special Civil Part dated June 4, 2009, denying his motion to vacate a default judgment. We affirm, although for reasons different from those stated by the trial court. See Isko v. Planning Bd. of Livingston, 51 N.J. 162, 175 (1968) ("if the order of the lower tribunal is valid, the fact that it was predicated upon an incorrect basis will not stand in the way of its affirmance"); State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002) (an appeal is taken from the court's order rather than reasons for the order).
Defendant is an inmate at a federal prison. He states he has been incarcerated since December 2000, and confined at the Elkton Federal Correctional Institution in Lisbon, Ohio since January 2002. He is scheduled to be released from prison in 2022.
In January 2004, plaintiff Unifund CCR Partners filed a Special Civil Part complaint alleging that it is the assignee of a Citibank Universal Card account established by defendant, and that defendant has failed to pay $4,105.02 plus interest on that account. Defendant does not dispute that, under the rules of the Special Civil Part, the complaint would have been mailed to an address given to the court by plaintiff. The address for the account was defendant's former home address in Bergenfield, New Jersey.
Defendant did not file an answer to the complaint. Plaintiff obtained a default judgment on May 6, 2004, for $4,560.23 plus costs and attorney's fees of $160.20, for a total of $4,720.43.
According to defendant, he first learned of the judgment in June 2006 by means of a report from a title agency. He filed a pro se motion in February 2007 to vacate the judgment, alleging in an accompanying certification that he had not been served with the complaint and that his due process rights were violated by entry of a default judgment following mailed service to his former address. Included with defendant's motion was a proposed answer to plaintiff's complaint, in which defendant stated: "There is no contract or judgment making defendant liable for the debt plaintiff alleges." According to defendant, the Special Civil Part denied his motion on April 13, 2007.
In February 2009, plaintiff filed a motion to enforce litigant's rights under Rule 6:7-2(e), stating that defendant had failed to respond to a post-judgment information subpoena issued in accordance with Rule 6:7-2(b)(1) and Appendix XI-L. Plaintiff had served the information subpoena and its motion to enforce litigant's rights by mail sent to defendant's former address in Bergenfield. Defendant did not file opposition to plaintiff's motion, and the court issued an order enforcing litigant's rights on April 3, 2009. The order also directed that defendant pay an attorney's fee to plaintiff of $250 for the motion. On April 8, 2009, counsel for plaintiff served the court's order enforcing litigant's rights upon defendant by mail, again at the same Bergenfield address.
After receiving that order, defendant filed another pro se motion on May 7, 2009, to vacate the default judgment. In a supporting certification, defendant stated that his daughter forwarded to him the court's order enforcing litigant's rights but that he had never received the information subpoena. Defendant also declared again that he had not been served with plaintiff's original complaint because he was incarcerated. He also claimed that plaintiff continued to serve him papers at his former address in New Jersey although he has not resided there for many years, and that his 2007 motion to vacate default judgment had been denied but an appeal of that ruling was filed and remained pending.
By order dated June 4, 2009, and marked "unopposed," the court denied defendant's motion to vacate the default judgment, stating: "Defendant has not established a meritorious defense. Appellate Division has no record of appeal for this case." Defendant filed a notice of appeal from the June 4, 2009 order. Subsequently, counsel assigned under this court's Pro Bono Civil Pilot Program entered an appearance and filed defendant's brief on appeal. Plaintiff has not filed opposition to the appeal.
On appeal, defendant challenges the judgment entered in May 2004 on several grounds, but there is no clear indication about why no appeal was taken from the April 2007 denial of his motion to vacate default judgment. The trial court correctly noted on its June 4, 2009 order that there is no record of a prior appeal. Since plaintiff has not filed opposition to the current appeal, we will decide it on the merits without consideration of whether the 2009 motion to vacate default judgment was barred by res judicata because the same motion had been denied in 2007 and not appealed.
The trial court erroneously based its denial of defendant's 2009 motion on the absence of a meritorious defense to plaintiff's claim. While a motion to vacate a default judgment under some subsections of Rule 4:50-1 requires a showing of a potentially meritorious defense, see Mancini v. EDS, 132 N.J. 330, 334 (1993), defendant's motion was brought under subsection (d) of that rule, in effect, asserting a void judgment. Defendant claimed that the court lacked personal jurisdiction to enter a judgment against him because of improper service of process. See Berger v. Paterson Veterans Taxi Serv., 244 N.J. Super. 200, 204 (App. Div. 1990). To vacate a judgment that is void for lack of personal jurisdiction, the moving party is not required to show a meritorious defense to the claim. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S. Ct. 896, 900, 99 L. Ed. 2d 75, 82 (1988); Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425 (App. Div. 2003), certif. denied, 179 N.J. 309 (2004).
The question presented to us is whether the judgment entered in May 2004 is void because service of a summons and complaint by mail to defendant's home address was ineffective in conferring personal jurisdiction over defendant while he was incarcerated in another state. In the specific circumstances of this case, we conclude that ...