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Sovereign Bank v. Yang

Superior Court of New Jersey, Appellate Division

November 6, 2013

SOVEREIGN BANK, Plaintiff-Respondent,
v.
FENG YANG, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 29, 2013

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-000820-06.

David J. Khawam, attorney for appellant.

Respondent has not filed a brief.

Before Judges Reisner and Carroll.

PER CURIAM

Defendant Feng Yang appeals from a September 5, 2012 Law Division order denying his motion to vacate a May 2010 default judgment or, alternatively, for a proof hearing, and an October 12, 2012 order denying reconsideration. We affirm.

On March 27, 2006, plaintiff Sovereign Bank commenced this collection action seeking to recover $24, 513.22 due from defendant on a business loan. Following service of the complaint, defendant entered into a payment arrangement with plaintiff. The suit was then administratively dismissed for lack of prosecution, in light of defendant's agreement to pay the debt.

Defendant ceased making payments in January 2010, and plaintiff moved to reinstate its complaint. The complaint was reinstated, and default judgment then entered against defendant in the sum of $12, 194.76 on May 28, 2010. On August 6, 2010, plaintiff moved to enforce litigant's rights for defendant's failure to respond to an information subpoena. In June 2012, plaintiff levied against defendant's bank account, and on July 16, 2012, the court signed a turnover order. Defendant did not oppose these applications, and did not move to vacate the default judgment until July 10, 2012, some two years after its entry. In August 2012, the judge conducted oral argument and, in a September 5, 2012 order, denied defendant's motion to vacate the default judgment, finding that it was untimely, and that defendant failed to establish excusable neglect. Also, because this was a book account action where defendant owed plaintiff a sum certain, the court found no reason to schedule a proof hearing. On October 12, 2012, the judge denied reconsideration.

On appeal, defendant argues that he never received service of the complaint because it was served on his elderly mother-in-law, who only speaks Mandarin and suffers from dementia. Defendant further contends that he has a meritorious defense in that the debt which plaintiff seeks to collect has now been fully satisfied.

We focus primarily on defendant's contention regarding his appeal from the order denying the vacation of the default judgment. Defendant moved to vacate the default judgment under Rule 4:50-1, which provides:

On motion, with briefs, and upon such terms as are just, the court may relieve a party or the party's legal representative from a final judgment or order for the following reasons: (a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

When a trial court considers a timely-filed and appropriately-supported motion to vacate a default judgment, the motion must be "viewed with great liberality, and every reasonable ground for indulgence is tolerated to the end that a just result is reached." Marder v. Realty Constr. Co., 84 N.J.Super. 313, 319 (App. Div.), aff'd, 43 N.J. 508 (1964). However, a motion to vacate a judgment under Rule 4:50-1(a) "should be granted sparingly, and is addressed to the sound discretion of the trial court, whose determination will be left undisturbed unless it results from a clear abuse of discretion." Fineberg v. Fineberg, 309 N.J.Super. 205, 215 (App. Div. 1998) (citing Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283-84 (1994)). An abuse of discretion occurs "when a decision is made without a rational explanation, inexplicably ...


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