Submitted December 3, 2013
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2833-11.
Carl Albern Jr., appellant pro se.
Pressler and Pressler, L.L.P., attorneys for respondent (Lawrence J. McDermott, Jr., on the brief).
Before Judges Fisher, Espinosa and Koblitz.
This appeal presents a procedural question: is a defendant, who, in responding to a complaint, moved for dismissal but did not file an answer after the motion was denied, entitled to notice of a plaintiff's request for default? Because the applicable rules of procedure do not expressly authorize an ex parte request for default in this unusual circumstance, and because the rules are based on a policy favoring the disposition of cases on their merits, we reverse the denial of defendant's Rule 4:50 motion to vacate both the default and the default judgment later entered.
On June 15, 2011, plaintiff Midland Funding LLC commenced this action against defendant Carl Albern, Jr., on an alleged outstanding credit card account. The summons contained the customary admonition that defendant was required to answer or otherwise move within the time allotted or default would be entered against him. Defendant timely responded by filing a pro se motion to dismiss, which was denied on October 6, 2011. The judge's order did not specify a time within which defendant was required to file an answer nor did it refer to defendant's need to file an answer. Rule 4:6-1(b) allots ten days to file an answer after denial of a motion to dismiss. Defendant did not file an answer within that time period.
On December 1, 2011, plaintiff submitted to the Clerk an ex parte application for entry of default, claiming "no defendant named herein has answered or otherwise moved." This representation was incorrect because, as mentioned, defendant had "otherwise moved, " albeit unsuccessfully. Plaintiff did correctly assert that defendant had not filed an answer and the time to do so had expired. Default was entered against defendant in early December 2011.
Although not included in either party's appendix, we are told plaintiff applied for the Clerk's entry of default judgment on March 15, 2012. Whatever plaintiff submitted at the time was apparently also served on defendant, who quickly submitted written opposition to the Clerk on March 19, 2012, claiming: he had not been served with an application to enter default; he had "filed an answer in the form of a motion to dismiss"; and plaintiff did not have standing to sue. The Clerk entered default judgment against defendant in the amount of $19, 366.77, with costs taxed in the amount of $269.12, on March 21, 2012. We assume the Clerk did not consider – perhaps she did not receive – defendant's written response because defendant's opposition was not mentioned in the judgment and because the normal course, upon receipt of opposition, would have required the Clerk to refer the matter to the court for disposition.
On May 14, 2012, shortly after plaintiff sought discovery of defendant's assets, defendant moved for relief pursuant to Rule 4:50-1. The trial judge denied this motion for reasons set forth in a written opinion, concluding that defendant had not shown his failure to file an answer was excusable because he should have understood his earlier unsuccessful motion would not be viewed as an answer. The judge also determined that defendant failed to present a meritorious defense, finding the allegation of plaintiff's lack of standing insufficient in this regard.
In this pro se appeal, defendant argues: (1) an ex parte application for entry of default in these circumstances was not permitted; (2) he was wrongfully denied oral argument on the return date of his Rule 4:50-1 motion; (3) the trial judge held him "to a more stringent standard" than plaintiff; and (4) plaintiff "has provided no credible evidence that [it] ha[d] standing to file this action." Because we agree plaintiff was not entitled to apply for default without notifying defendant and because defendant presented a meritorious defense – even though he ...