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Capital One Bank, (U.S.A), N.A v. Red Industries

May 17, 2011

CAPITAL ONE BANK, (U.S.A), N.A., PLAINTIFF-RESPONDENT,
v.
RED INDUSTRIES, INC., DEFENDANT, AND VAROUJAN PANOSSIAN, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7910-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 15, 2010

Before Judges C.L. Miniman and LeWinn.

Defendant, Varoujan Panossian, is a part-owner of Red Industries, Inc. Plaintiff, Capital One Bank, (U.S.A.), N.A. (Capital One) sued Panossian and Red Industries for the unpaid balance on a business credit card in the name of Red Industries; Panossian had personally signed the credit card application. The matter was referred to arbitration. On September 8, 2009, the arbitrator awarded Capital One $28,185 against Panossian "due to [his] personal guarantee."

On November 3, 2009, Capital One filed a motion to enforce the arbitration award. On November 6, 2009, Panossian filed a motion to set aside the arbitration award and a demand for a trial de novo; he requested oral argument. On December 10, 2009, the judge decided both motions on the papers and entered two orders, one entering judgment in favor of Capital One for the amount of the arbitration award, and the other denying Panossian's motion in its entirety. Panossian moved for reconsideration and again requested oral argument. On January 27, 2010, the judge entered an order denying reconsideration without holding oral argument.

Panossian now appeals from the orders of December 10, 2009 and January 27, 2010. We affirm.

Only the attorneys for both parties appeared at the arbitration. Capital One submitted the credit card application bearing Panossian's signature, the monthly billing statements, and the terms and conditions of the account. Counsel for Panossian contended that a former partner in Red Industries, Enis Hrdisa, had forged Panossian's name on the application; counsel submitted a copy of Panossian's signature on interrogatory answers furnished in discovery in an attempt to prove the forgery.

In his decision, the arbitrator noted that he could not find a factual basis to support the forgery defense because Panossian did not testify. Furthermore, there was no expert testimony presented on the issue.

In his motion to set aside the arbitration award and demand a trial de novo, filed fifty-nine days after entry of the award, Panossian claimed that his failure to file within the requisite thirty days, R. 4:21A-6(b)(1), was due to a calendaring error by his attorney. He also asserted a "meritorious defense," namely forgery, and contended that "justice require[d] that he be allowed to file . . . out of time."

The judge did not explain his failure to grant Panossian's request for oral argument. In a statement of reasons appended to his December 10, 2009 order, the judge noted that the thirty-day time limit in the Rule "can be extended for good cause shown[,]" but the concept of "'extraordinary circumstances' . . . does not include excusable neglect and hence does not encompass negligence or carelessness by the attorney or his office staff."

Regarding Panossian's claim of a meritorious defense of forgery, the judge noted that the arbitrator found no basis for such a defense because defendant neither testified nor presented expert testimony on the issue, adding:

In [d]efendant's [m]otion, . . . counsel provides no further basis for [d]efendant's alleged meritorious defense . . . other than his certified statement. If [d]efendant really did have a meritorious defense worthy of determination, a showing should have been made at arbitration or again here. Instead, there is nothing more to support the assertion of a meritorious defense other than defense counsel's hearsay statements.

The judge concluded that Panossian "had an opportunity to argue the merits of his case before the arbitrator by having his counsel appear on his behalf . . . . He was not denied his day in court, ...


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