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Eichenbaum & Stylianou, LLC v. Osaedebiri

Superior Court of New Jersey, Appellate Division

August 15, 2013

EICHENBAUM & STYLIANOU, LLC, RAB PERFORMANCE RECOVERIES, Plaintiff-Respondent,
v.
JAMES OSAEDEBIRI, Defendant-Appellant

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 16, 2013

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-23864-11.

James Osaedebiri, appellant pro se.

Respondent has not filed a brief.

Before Judges Ashrafi and St. John.

PER CURIAM

Defendant James Osaedebiri appeals from the February 3, 2012 denial of his motion to vacate the default judgment entered against him. We affirm.

We briefly summarize the relevant procedural history and the facts based on the record before us.

Plaintiff RAB Performance Recoveries filed an action against defendant seeking to recover a past due balance in connection with a Chase Bank Visa account. On January 12, 2012, the matter was scheduled to be heard in the Special Civil Part, Essex County. Defendant appeared for the calendar call but failed to appear when the case was called for mediation. Defendant alleges that he was in the restroom and that he suffers from urinary frequency. He contends that when he returned to the courtroom he was informed that the case had been called and that default had been entered against him.

Defendant's motion to vacate default judgment was denied on February 3, 2012. Defendant then filed four motions to reconsider all of which were denied. On March 28, 2012, judgment was entered against defendant in the amount of $2, 792.35.[1] It is from these determinations that defendant appeals.

Applications to vacate default judgments should be looked at indulgently and granted with "great liberality" in order that a just result can be reached in the litigation. Rosenberg v. Bunce, 214 N.J.Super. 300, 304 (App. Div. 1986). The decision is "left to the sound discretion of the trial court, and will not be disturbed absent an abuse of discretion." Mancini v. EDS ex. rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). To vacate a default judgment, the applicant must make a showing of excusable neglect and a meritorious defense. Marder v. Realty Construction Co., 84 N.J.Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964).

Rule 2:6-1(a)(1) requires the appendix prepared by the appellant to include "the complete pretrial order, if any, and the pleadings." Failure to include any item essential to the decision hinders appellate review. Johnson v. Schragger & Krasny, 340 N.J.Super. 84, 87 n.3 (App. Div. 2001). Our refusal to address an issue where the appellant's appendix failed to include the final order dismissing her claim has been affirmed by the Supreme Court. Capala v. Lincoln Tech. Inst., 179 N.J. 45, 55 (2004).

Here, the motion judge determined that defendant failed to show excusable neglect and a meritorious defense. Because defendant has not provided us with his original motion to vacate the default judgment, opposition to it, or any transcript of the motion hearing if one was held, we have no basis by which to determine whether defendant demonstrated excusable neglect or a meritorious defense. We have before us only the statements made in defendant's brief which are outside the record As such we cannot adequately review the record and must affirm

Affirmed.


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