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New Century Financial Services, Inc v. Ronald J. Davis

July 20, 2012


On appeal from Superior Court of New Jersey, Special Civil Part, Sussex County, Docket No. DC-002989-00.

Per curiam.


Argued March 13, 2012

Before Judges Payne and Simonelli.

Defendant, Ronald J. Davis, Jr., appeals from an order of March 11, 2011, denying his second motion to vacate a default judgment entered against him in the amount of $9,961.06 plus costs and attorney's fees of $263.23 on February 7, 2001 in the Special Civil Part. On appeal, defendant argues that the default judgment should be vacated pursuant to Rule 4:50-1(f) because plaintiff, New Century Financial Services, Inc. (New Century) failed to comply with the requirements of Rule 6:6-3(a) in obtaining its default judgment. We affirm.


The procedural history of this matter is lengthy. On December 16, 2000, plaintiff filed suit in the Special Civil Part against defendant, seeking recovery of unpaid charges and fees allegedly incurred by defendant on a Citibank MasterCard account that had been assigned to it. An envelope containing the complaint, bearing a post mark of December 21, 2000, was sent to defendant's residence address by certified and regular mail. The certified mail envelope bore the zip code 00784, which was incorrect. Nonetheless, the envelope bears markings that indicate that it was received in the correct post office and dates that suggest that notices of the certified mail were provided to defendant on three occasions - on December 22, 2000 and on January 11 and 15, 2001. The certified mail was returned to the Special Civil Part as unclaimed. However, the regular mail was not returned, raising a presumption of proper service.

R. 6:2-3(d)(1) and (4). Evidence has established that defendant has lived at the address utilized by plaintiff since 1991.

Default was automatically entered when defendant failed to file an answer and, on September 7, 2001, a default judgment was entered pursuant to Rule 6:6-3(a) by the clerk. Because the judgment was sought within six months of service of the complaint, no prior notice was provided to defendant. See R. 6:6-3(d). However, thereafter, defendant was served with an information subpoena on September 24, 2001, and on October 11, 2001, defendant was served with a motion to enforce litigant's rights. On November 15, 2001, an order to enforce litigant's rights was entered that was served on defendant on November 23, 2001. A further order to enforce litigant's rights was executed on March 1, 2002. Additionally, on August 5, 2003, a letter was sent to defendant reminding him of the judgment.

A further motion to enforce litigant's rights was served on June 11, 2004, resulting in an additional order dated July 16, 2004. Yet another motion was filed on May 29, 2007, which was granted either on June 15, 2007 or September 25, 2007. The court's records demonstrate that, in that connection, in 2007 a court officer contacted defendant and obtained responses from him to plaintiff's information subpoena, including defendant's social security number. In addition, a number of warrants for defendant's arrest were issued, but they do not appear to have been executed.

In November 2009, plaintiff levied on defendant's bank account with Wachovia Bank, and on November 21, 2009, defendant was notified that the levy had taken place. On January 20, 2010, a motion for turn-over of funds in the amount of $206.71 was granted as unopposed.

However, on January 18, 2010, two days before the turn-over order was entered, defendant moved, through counsel with whom he had frequent contact as an insurance company investigator, to vacate the default judgment entered against him nine years earlier, arguing that there was no proof that New Century was a proper plaintiff; he was never served with plaintiff's complaint; he was not the proper defendant; and, despite responding to a 2007 information subpoena, he did not have any notice of plaintiff's suit until November 16, 2009 when he received notice of the bank levy from Wachovia.

The motion was argued on February 11, 2010. After reciting evidence of notice to defendant contained in the court file as set forth previously, the motion judge stated that he found that it was "difficult for this court to believe, or conclude, or accept a proposition that Mr. Davis was without notice until recent date." Additionally, the judge found regularly mailed service to have been properly effected; that New Century was the proper plaintiff; and, by comparison of defendant's social security number with one furnished by defendant in 2007, that suit was properly filed against defendant, Ronald Davis, Jr., not his father, Ronald Davis, Sr. However, responding to defendant's argument that the account was not his, in an order issued on the day of the hearing, the judge ordered plaintiff to provide "all available account information" within its possession within ten days. Additionally, he ordered plaintiff's counsel to "diligently attempt" to locate and provide account information from Citibank within sixty days.

In accordance with court order, on February 19, 2010, plaintiff's counsel provided information "that the account at issue was a Citibank MasterCard account which was opened on May 1, 1989 and charged off on November 10, 1997. The last payment on this account was made on January 20, 1998 in the amount of $150.00." Thereafter, counsel informed defendant that ...

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