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Morristown Memorial v. Jennifer Franco

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 20, 2011

MORRISTOWN MEMORIAL, PLAINTIFF-APPELLANT,
v.
JENNIFER FRANCO, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Morris County, Docket No. DC-000814-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 7, 2011

Before Judges Grall and LeWinn.

In December 2001, plaintiff, Morristown Memorial Hospital (MMH) sued defendant, Jennifer Franco, for nonpayment of her hospital bill in the amount of $1244.79. MMH served Franco at her last known address, 53 Madison Street in Morristown, New Jersey, 07860. Franco did not answer and on February 4, 2003, a default judgment was entered against her for $1419.60, representing the amount of the unpaid bill plus prejudgment interest.

Between June 18, 2004 and July 14, 2008, MMH sent numerous documents to Franco's address, by both regular and certified mail; these mailings included information subpoenas and copies of MMH's motions to enforce litigant's rights. None of the material sent by regular mail was ever returned by the Postal Service. Several of the items mailed to Franco's address added the four-digit [ZIP] suffix, 5262, to her zip code.

In October 2009, a court officer levied on Franco's account at Bank of America (BOA) for $647.47; the court's notice of levy was mailed to Franco at the 53 Madison Street address. MMH thereupon filed a motion for turnover of those funds in partial satisfaction of its default judgment. MMH's proof of service of its motion stated that a copy was served on Franco at 53 Madison Street, "being the last known address, simultaneously by certified mail, return receipt requested and by regular mail with postage prepaid thereon" as well as service upon BOA.

On November 20, 2009, the judge entered an order denying the motion. A notation on the order stated: "Motion denied without prejudice. Plaintiff may refile with adequate proof of defendant's current address."

MMH filed a motion for reconsideration, claiming the judge misapplied pertinent case law and exceeded rule requirements by requiring more than its proof of mailing. By order dated April 13, 2010, the judge denied reconsideration and appended a statement of reasons. The judge concluded that MMH's reliance on New Century Financial Service, Inc. v. Nason, 367 N.J. Super. 17 (App. Div. 2004), and First Resolution Investment Corp. v. Seker, 171 N.J. 502 (2002), was "misplaced" because:

New Century Financial held that a judgment creditor need not attach a certified mail receipt card to its proof of service certification in the context of service of an information subpoena following entry of default judgment. . . . It should be noted, however, that the plaintiff in New Century Financial certified in its proof of mailing that the order . . . at issue was sent simultaneously by regular and certified mail to the defendant's last known address and that neither mailing was returned in a manner which indicated that service by mail was not effectuated. Likewise, First Resolution, which cited Morristown Memorial v. Caldwell [340 N.J. Super. 562 (App. Div. 2001)], relied upon by plaintiff in its present [m]otion for [r]econsideration, [is] distinguishable from the present matter for similar reasons.

This case involves judgment entered February 4, 2003, more than [seven] years ago. The only statements contained in [p]laintiff's [p]roof of [m]ailing submitted with the original [m]otion were that the [n]notice of [m]otion was served to defendant at her "last known address, simultaneously by certified mail, return receipt requested and by regular mail." Contrary to the cases cited by [p]laintiff, the papers submitted in support of its original [m]otion did not certify that either the certified mailing or the regular mailing was returned in a manner which indicated that service by mail was not effectuated, nor does the proof of mailing submitted with this [m]otion for [r]econsideration so state. Although certainly [p]laintiff could have provided some proof of its attempt to confirm defendant's current address for a judgment of this age, it chose not to do so.

The judge filed an amplification of her decision pursuant to Rule 2:5-1(b) on May 27, 2010. There, the judge reiterated her concern about "the age of this case" and MMH's "failure to submit any confirming postal information or [a]ffidavit of diligent inquiry . . . ." The judge also pointed out a discrepancy in MMH's proof of service of its turnover motion, showing service at 53 Madison Street, and the proof of service of its motion for reconsideration, showing service at 53 Madison Avenue. For these reasons the judge was concerned that defendant may not have "been afforded due process."

On appeal, MMH contends the judge erred as a matter of law by requiring it to submit supplemental proof of service and by failing to accept its service by mail as valid under the circumstances. We concur and, therefore, reverse.

Initially, we note that our standard of review here is de novo. "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).

Rule 1:5-2 states, in part, that service on a party "shall be made . . . by registered or certified mail, return receipt requested, and simultaneously by ordinary mail to the party's last known address." Rule 1:5-3 describes the required proof of service:

If service has been made by mail the [proof of service] certification shall state that the mailing was to the last known address of the person served. . . . Where service has been made by registered or certified mail, filing of the return receipt card with the court shall not be required.

In First Resolution, the Court adopted the reasoning in Caldwell, supra, 340 N.J. Super. at 564, that "service by regular mail of a notice seeking to levy on a debtor's bank accounts was valid even without proof of the results of service by certified mail." 171 N.J. at 506. The Court expressly overruled our earlier decision in Morristown Memorial Hospital v. Tureo, 329 N.J. Super. 154, 157 (App. Div.), certif. denied, 165 N.J. 487 (2000), which had held that "judgment creditors seeking a post-judgment [levy on a debtor's assets] must indicate, in the proof of service certification, that the certified mailing of notice sent to the debtor was either refused or not accepted before ordinary mail can be deemed to constitute valid service." Id. at 511, 514. In other words, the Court concluded that "a proof of service is sufficient if the creditor describes the date of mailing, the modes of service, and that the 'mailing was to the last known address of the person served.'" Id. at 511. Moreover, the Court noted, "[r]equiring a party to submit supplemental proof in a post-judgment action . . . run[s] counter to . . . the goal of eliminating unjustifiable expense and undue delay in court proceedings." Id. at 513.

We re-visited this issue in New Century, supra, 367 N.J. Super. at 23-24, where we noted that [a]ny possible ambiguity in the proof of service provision of Rule 1:5-3 . . . was resolved by the . . . Court in First Resolution Inv. Corp., [supra,] . . . . Rule 1:5-3 requires only that a proof of service certification "state that the mailing was to the last known address of the person served," and where certified mail was utilized, it does not require attachment of the return receipt card. No further proof is required by rule.

The plaintiff in New Century had certified that neither the certified nor ordinary mail was returned, but we noted that the Court in First Resolution had held that proof of the results of certified mailing was not required. Id. at 24-25 (citing First Resolution, supra, 171 N.J. at 513).

We are satisfied that MMH complied with the proof-of-service requirements in First Resolution. MMH certified (1) the date of service, (2) the mode of service and (3) that the mailing was to defendant's last known address. Id. at 511. The mail was not returned for any of the reasons noted in Rule 6:2-3(d)(4).*fn1 Therefore, there was no basis for the judge to conclude that service had not been effected.*fn2

We briefly address two other points raised by MMH. In denying the motion for reconsideration, the judge noted that the "age" of the judgment required MMH to "provide[] some proof of its attempt to confirm defendant's current address." This, however, ignored the fact that MMH had served numerous documents upon defendant at the 53 Madison Street address in the intervening years between entry of the 2003 default judgment and MMH's 2009 turnover motion. As noted, service of all of those documents was by certified and ordinary mail; none of the ordinary mail was ever returned. Thus, this factor provided no basis for the judge to conclude that service had not been effected.

In her supplemental opinion, the judge noted a discrepancy in the address on MMH's proof of service of its turnover motion and on its motion for reconsideration, the former listing Madison Street and the latter listing (for the first time) Madison Avenue. We are satisfied this discrepancy is of no moment. The proof of service of both motions noted the correct zip code plus 4-digit suffix, 07960-5262. Except for MMH's motion for reconsideration, every other document it sent to defendant since 2003, including its motion for turnover, had the correct address. Again, we find no basis to conclude that service of MMH's turnover motion was not properly effected.

Reversed and remanded for further proceedings in conformity with this opinion.


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