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Carmen A. Burgos and Carlos R. Burgos, W/H v. International Vacation Club

March 13, 2012

CARMEN A. BURGOS AND CARLOS R. BURGOS, W/H, PLAINTIFFS-RESPONDENTS,
v.
INTERNATIONAL VACATION CLUB, LTD., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1712-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 28, 2012

Before Judges Simonelli and Accurso.

Defendant International Vacation Club, Ltd. (IVC) appeals from the May 13, 2011 Law Division order, which denied its motion to vacate a default judgment entered on October 26, 2009. We reverse.

IVC is a company organized under the laws of the British Virgin Islands, with its principal place of business located in Naco, Dominican Republic. IVC manages the sale of timeshare units located at the Hamaca Beach Resort in the Dominican Republic. It conducts no business and has no office, registered agent or employees in the United States. It's main business address is Lope de Vega Avenue #19, Pisa Building, 2nd Floor, Naco, Dominican Republic. It maintains a Post Office box in Miami, Florida (the P.O. Box) as a mailing address, where customers send their payments and any contractual complaints. Mail received at the P.O. Box is forwarded to a P.O. Box in the Dominican Republic, where an IVC employee collects it for distribution.

On May 3, 2007, plaintiffs, who are Cherry Hill residents, executed a contract with IVC to purchase a timeshare. Plaintiffs allege that while at their timeshare on May 20, 2008, plaintiff Carmen Burgos sustained injuries when she slipped and fell on a slippery/wet substance that had accumulated in the hallway leading to plaintiffs' timeshare.

On April 2, 2009, plaintiffs filed a complaint against IVC in the Superior Court of New Jersey, Camden County. Without first filing an affidavit of diligent inquiry, plaintiffs attempted to serve the summons and complaint on IVC by certified mail addressed to the P.O. Box. Plaintiffs obtained a signed certified mail return receipt. On April 21, 2009, plaintiffs filed a proof of service; however, they did not file an affidavit. IVC did not answer or otherwise respond to the complaint.

On June 17, 2009, plaintiffs' counsel mailed a letter and request to enter default to IVC at the P.O. Box, and advised IVC that if it failed to respond within ten days, a judgment may be entered against it without a hearing. On June 30, 2009, plaintiffs' attorney mailed copies of a letter to the court and a request to enter default to IVC at the P.O. Box. On July 1, 2009, the court entered the order of default. The record does not indicate that plaintiffs' attorney served IVC with the filed order of default, as required by Rule 4:43-1.*fn1

On July 22, 2009, plaintiffs filed a motion for an assessment of damages hearing, and mailed it to the P.O. Box. By order dated August 14, 2009, the court scheduled a proof hearing. Plaintiffs' attorney mailed the order to the P.O. Box.

On October 26, 2009, the court entered judgment against IVC for a total of $39,010.*fn2

On October 5, 2010, plaintiffs domesticated the judgment in Florida by filing a certified copy and an affidavit of foreign judgment, which they did not serve on IVC. They obtained a Florida writ of garnishment on December 10, 2010. Thereafter, approximately $78,000 of IVC's funds were levied. On January 9, 2011, IVC filed a motion in Florida to dissolve the writ based on lack of service and defective service of process. The Florida court entered an order on January 26, 2011, abating the writ for ninety days and allowing IVC to challenge the judgment in New Jersey.

IVC filed a motion in New Jersey pursuant to Rule 4:50-1(d) to vacate the default judgment based on lack of or defective service of process. The trial judge denied the motion, concluding that IVC did not show excusable neglect, IVC had received the summons and complaint, there was a technical violation of the service of process rules "[b]ut it in no way went to the essential due process requirement that the defendant get notice of the summons and complaint," and defendant "made a tactical decision to not file an answer." This appeal followed.

On appeal, IVC contends that the judgment is void and must be vacated because the court lacked in ...


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