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Laridian Consulting, Inc., As Assignee of Nations Bank v. Pedro G. Bolanos

November 7, 2011

LARIDIAN CONSULTING, INC., AS ASSIGNEE OF NATIONS BANK, PLAINTIFF-RESPONDENT,
v.
PEDRO G. BOLANOS, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. DC-8110-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 17, 2011

Before Judges Parrillo and Skillman.

Defendant appeals from an order entered on October 29, 2010, which denied his motion to vacate a default judgment entered against him on June 3, 2004, and an October 15, 2010 order, which required the Bank of America to turnover $20,043.10 held by defendant in a joint bank account with his wife to satisfy that judgment.

Plaintiff is the assignee of defendant's unpaid credit card debt. In April 2003, plaintiff filed this action in the Special Civil Part for the recovery of $15,000 due on defendant's account. That same month, service was made upon him by mail at his home address.

On May 14, 2004, following expiration of six months without defendant filing an answer, plaintiff filed a motion for entry of a default judgment, and on June 3, 2004, the trial court entered a default judgment against defendant in the amount of $15,369.

Before the trial court, defendant denied receipt of service of the complaint and relied upon the alleged failure of service of process as the basis for vacating the default judgment. However, defendant admittedly became aware of the action and the default judgment in the summer of 2004, and on appeal, he has abandoned his argument that the alleged failure of service of process in 2003 could provide a basis for vacating the default judgment in 2010. See Rogin Equities, Inc. v. Santuri, 289 N.J. Super. 95, 113-15 (App. Div. 1996); Rosa v. Araujo, 260 N.J. Super. 458, 463 (App. Div. 1992), certif. denied, 133 N.J. 434 (1993).

In an effort to execute upon the default judgment, plaintiff sent defendant an information subpoena. Defendant signed the subpoena on September 17, 2004, and sent it to plaintiff's counsel and the trial court together with a transmittal letter, which indicated that he had moved to the Bronx and was seeking legal counsel to represent him. Defendant's letter also sought documentation concerning the basis for the default judgment.

Insofar as the record before us indicates, plaintiff did not undertake any additional efforts to execute upon the default judgment over the next six years, and defendant admittedly did not move to vacate.

On August 18, 2010, plaintiff filed a motion for a turnover of funds in a joint savings account defendant holds with his wife in order to satisfy the judgment. On September 28, 2010, defendant responded by filing a motion to vacate the default judgment. Defendant's primary argument in support of his motion was that he had not been served with process in 2003. As previously noted, defendant has now abandoned that argument. Defendant also argued that plaintiff had failed to submit sufficient documentation to the trial court to support entry of the default judgment.

The trial court denied defendant's motion to vacate the default judgment and granted plaintiff's motion for a turnover order by oral opinions issued on October 15 and 29, 2010. On December 23, 2010, after this appeal was filed, the court issued a supplemental oral opinion expanding upon the reasons for its decision.

I.

Defendant's motion to vacate the default judgment was based on Rule 4:50-1(f), which provides that a party may be relieved from a judgment for "any other reason," (in addition to the specific reasons set forth in Rule 4:50-1(a) through (e)), "justifying relief from the operation of the judgment[.]" Relief under the subsection, sometimes referred to as the "catch-all" provision, DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 269 (2009), "is available only when 'truly exceptional circumstances are present.'" Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)). Rule 4:50-1(f) should be invoked "'sparingly' and only 'in situations in which, were it not applied, a grave injustice would occur[.]'" First Morris Bank & Trust v. Roland Offset Serv., Inc., 357 N.J. Super. 68, 71 ...


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