United States District Court, D. New Jersey
Honorable Freda L. Wolfson United States District Judge
MATTER, having been opened to the Court by Frederick
Coles, III, Esq., counsel for the Plaintiff Luciana Destefano
(“Plaintiff”), on a motion to vacate judgement,
pursuant to Fed.R.Civ.P. 60(a), 60(b)(1), and
60(b)(6); it appearing that Defendants Ocwen Loan
Servicing, LLC, and Deutsche Bank National Trust Company,
through counsel Blank Rome LLP; and Udren Law Offices, P.C.,
through counsel David Neeren, Esq., (collectively,
“Defendants”); oppose the motion;
APPEARING THAT, 1. On June 29, 2017, this Court
dismissed Plaintiff's Complaint under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692e, with prejudice, as time-barred by the
applicable, one-year statute of limitations.
Plaintiff's October 19, 2016 Complaint alleged that
Defendants violated the FDCPA by bringing of a foreclosure
complaint against Plaintiff's property located at 634
Clark Avenue, Union Beach, New Jersey 07735, in the Superior
Court of New Jersey, on August 13, 2015. Compl. ¶¶
action under the FDCPA must be brought “within one year
from the date on which the violation occurs.” 15 U.S.C.
§ 1692k(d). Where “FDCPA claims are premised upon
allegations of improper pursuit of debt collection
litigation, courts are split as to when the FDCPA's
one-year statute of limitations begins to run: some have held
that such claims accrue upon filing the underlying collection
action, see Naas v. Stolman, 130 F.3d 892, 893 (9th
Cir. 1997), while others use the date on which the purported
debtor was served with the complaint. See Johnson v.
Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002).”
Schaffhauser v. Citibank (S.D.) N.A., 340 Fed.Appx.
128, 130-31 (3d Cir. 2009).
Court found that, under either standard, Plaintiff's
FDCPA action was filed out of time. Defendants filed their
foreclosure complaint against Plaintiff on August 13, 2015,
more than a year prior to the filing of Plaintiff's
Complaint on October 19, 2016. This Court also found that,
based on the available record of the New Jersey Superior
Court action, Plaintiff was served with the allegedly
offending foreclosure complaint on August 21, 2015, again
more than a year prior to the filing of Plaintiff's
Plaintiff, however, contended that, although the only
affidavit of service filed in the Foreclosure Action
indicates that service was made on August 21, 2015, a
December 14, 2015 Order of the Superior Court vacating
default, as a matter of law, converted the date of service to
December 14, 2015, because one of the bases on which
Plaintiff moved to vacate default was the insufficiency of
service. In support of her argument, Plaintiff
relied upon the December 14, 2015 Order of the Superior
Court, which provided no reasoning or explanation beyond that
it was entered “for good cause shown.”
Court found that Plaintiff's position was not supported
by applicable New Jersey law, which permits the vacating of
default even where service is proper. See O'Connor v.
Altus, 67 N.J. 106 (1975). In the absence of any
explanation from the Superior Court, therefore, this Court
found that the December 14 Order on its face did not
invalidate the August 21st date of service. This
Court therefore found that, because Defendants had introduced
some evidence in support of their contention that Plaintiff
was served on August 21, 2015, and Plaintiff, conspicuously,
had failed to introduce any evidence that she was not served
on that date, instead relying upon a carefully crafted
certification of counsel and erroneous legal argument, the
only date of service supported by the record was August 21,
2015, and Plaintiff's October 19, 2016 FDCPA Complaint
was filed out of time.
Local Rule 7.1(i) allows a party to seek reconsideration of a
court's decision if there are “matters or
controlling decisions which counsel believes the Judge ...
has overlooked.” L. Civ. R. 7.1(i); see also
Interfaith Cmty. Org. v. Honeywell Int'l, Inc., 215
F.Supp.2d 482, 507 n. 12 (D.N.J. 2002). Reconsideration is
“an extraordinary remedy” that is to be granted
“very sparingly.” Id. at 507. A motion
for such reconsideration may only be granted upon finding:
“(1) an intervening change in the controlling law; (2)
the availability of new evidence that was not available when
the court granted the motion ...; or (3) the need to correct
a clear error of law or fact or to prevent manifest
injustice.” Max's Seafood Café v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). Moreover,
the Court will only grant such a motion if the matters
overlooked might reasonably have resulted in a different
conclusion. Bowers v. Nat'l. Collegiate Athletics
Ass'n., 130 F.Supp.2d 610, 613 (D.N.J. 2001).
support of the present motion, Plaintiff has, submitted a
certification of counsel, attaching the transcript from the
December 14, 2015 hearing before the New Jersey Superior
Court, deciding Plaintiff's motion to vacate default in
the foreclosure proceeding. This transcript was not
previously provided to the Court, and Plaintiff has provided
no explanation for why it was not. Nor has Plaintiff
explained why Plaintiff failed to rely upon the transcript in
opposition to Defendants' motion to dismiss. The Court,
therefore need not consider the transcript. Blystone v.
Horn, 664 F.3d 397, 415-16 (3d Cir. 2011)
(“‘‘new evidence, ' for reconsideration
purposes, does not refer to evidence that a party ... submits
to the court after an adverse ruling. Rather, new evidence in
this context means evidence that a party could not earlier
submit to the court because that evidence was not previously
available.'” (Howard Hess Dental Labs., Inc. v.
Dentsply Int'l Inc., 602 F.3d 237, 252 (3d Cir.
2010)); Id. at 416 (“Evidence that is not
newly discovered, as so defined, cannot provide the basis for
a successful motion for reconsideration.” (citing
Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d
Nevertheless, if I were to consider the transcript, after
reviewing the Superior Court's statements on the record,
I find the following passage potentially relevant to the
matter at bar:
There is argument as to whether she was serve[d] properly but
I find at this point she has had knowledge of this action. I
find that the defendant has shown good cause for setting
aside the entry of default. If she was never served, she
found out sometime around November 6th, and filed this motion
immediately. So certainly she filed the motion November 18th,
so that was certainly 12 days afterwards. So certainly that
is within enough time.
Coles Declaration, Ex. B, Tr. 11:16-12:6.
This statement is not, however, inconsistent with this
Court's prior holding, as the Superior Court did not
explicitly find that the August 21, 2015 service of Plaintiff
with the foreclosure complaint was invalid. Moreover, the
Superior Court's ambiguous reference to November 6, 2015,
as a potential date of effective service or at least of
Plaintiff's discovery of the action - a date not
previously argued by the parties or evidenced in the record
in this proceeding - only raises further questions as to why
Plaintiff has consistently argued to this Court ...