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New Century Financial Services, Inc v. Cathrina Blackie

March 6, 2012

NEW CENTURY FINANCIAL SERVICES, INC., PLAINTIFF-RESPONDENT,
v.
CATHRINA BLACKIE, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Essex County, Docket No. DC-40334-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 23, 2012

Before Judges Ashrafi and Fasciale.

Defendant Cathrina Blackie appeals from a July 9, 2010 order of the Special Civil Part denying her motion for reconsideration of a prior order dated April 1, 2010. The prior order denied her motion to vacate a default judgment entered by the clerk of the Special Civil Part on February 8, 2010. Defendant did not file a notice of appeal from the April 1, 2010 order, and her motion for reconsideration was not timely filed under Rule 4:49-2. Therefore, we affirm the trial court's order of July 9, 2010.

Plaintiff New Century Financial Services, Inc. filed a one-page complaint against defendant on December 10, 2009, in which it claimed to be the owner of a specifically numbered Sears Premier Card account that was in default, and the total sum of $1,395.01 was due from defendant on that account. On December 15, 2009, the clerk of the Special Civil Part served the complaint and a summons by mail upon defendant at the address provided by plaintiff. Under Rule 6:3-1, defendant had thirty-five days to file and serve an answer to the complaint. With the addition of three days under Rule 1:3-3 because of mailed service of process, the deadline for the filing of defendant's answer was January 22, 2010. Defendant did not file an answer by that date.

The Postal Service returned the certified mailing of the summons and complaint to the court stamped "unclaimed." Upon plaintiff's application, the clerk of the Special Civil Part entered a default judgment for a total of $1,481.42, which included court costs of $39.00 and statutory attorney's fees of $42.98. On February 12, 2010, plaintiff's attorney wrote to defendant informing her of the default judgment.

On March 11, 2010, pro bono counsel for defendant filed a motion to vacate the default judgment. Defendant's certification in support of the motion asserted that she had not received the summons and complaint and that the February 12, 2010 letter from plaintiff's attorney was her first notification of the court action against her.*fn1 Also, the motion alleged that the proofs submitted by plaintiff to obtain default judgment were insufficient.

On April 1, 2010, the court denied defendant's motion to vacate the judgment, stating in its order that mailed service was effective under the court rules and that defendant had shown neither excusable neglect for her failure to answer the summons and complaint nor a meritorious defense to plaintiff's claim of money owed.

On June 21, 2010, counsel for defendant filed a motion for reconsideration. The court denied the motion on July 9, 2010, stating in its order that the motion was untimely under Rule 4:49-2 and that it also failed to meet the requirements of Rule 4:50-1 for vacating a judgment.

On appeal, defendant argues that plaintiff's debt-collection tactics were unfair because they failed to include sufficient information about the debt and plaintiff's entitlement to a judgment. She argues that we should adopt rules and requirements to balance the equities between debt collectors and unsophisticated debtors engaged in litigation.

We decline to use this appeal for the broad policy-making purposes advocated by pro bono defense counsel. The procedural and factual record before us is inappropriate for a holding that would affect many other litigants and alter the process employed in our courts for debt collection cases. We will limit our decision to the factual and procedural issues of this case.

We lack jurisdiction to determine the merits of defendant's contentions on appeal because she did not pursue her appeal in a timely manner. Had defendant filed a notice of appeal within forty-five days, Rule 2:4-1(a), from the court's April 1, 2010 order, we would decide this appeal based on the merits of defendant's claims under Rule 4:50-1 seeking to vacate the default judgment. But defendant did not file an appeal from that order. Instead, she filed a late motion for reconsideration in the Special Civil Part. That motion was properly denied as untimely under Rule 4:49-2, which sets a strict twenty-day time period for seeking reconsideration of a judgment or order. Rule 4:49-2 is made applicable to the Special Civil Part by Rule 6:6-1, and its time limitation may not be enlarged, Rule 1:3-4(c).

Although the procedural deficiencies are sufficient ground for rejection of defendant's appeal, we add the following comments in the interest of completeness. Nowhere in defendant's papers is there a denial that the Sears credit card alleged in the complaint was her account or that it went into default for non-payment. Defendant also has not challenged the amount due on the account. Furthermore, defendant has not denied the accuracy of the mailing ...


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