NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2827-22
ASSET ACCEPTANCE, LLC, assignee of CITIFINANCIAL SERVICES INC./CITI FINANCIAL PLUS,
Plaintiff-Respondent,
v.
CAMILLA A. TOFT,
Defendant-Appellant. ______________________________
Argued April 23, 2024 – Decided May 8, 2024
Before Judges Paganelli and Whipple.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. DC-012106-13.
Mark H. Jensen argued the cause for appellant (Kim Law Firm LLC, attorneys; Yongmoon Kim and Mark H. Jensen, on the briefs).
Han Sheng Beh argued the cause for respondent (Hinshaw and Culbertson LLP, attorneys; Han Sheng Beh, on the brief). PER CURIAM
Defendant Camilla A. Toft appeals from a February 23, 2023 order
denying her motion to vacate a default judgment and wage execution entered in
favor of plaintiff Asset Acceptance, LLC (AA). We affirm.
We glean the facts and procedural history from our April 19, 2022,
opinion, Camilla Toft, on behalf of herself and those similarly situated v. Asset
Acceptance, LLC, Asset Acceptance Capital Corp., and Midland Credit Mgmt.,
Inc., A-4470-19 (App. Div. Apr. 19, 2022),1 as well as the from the motion
record in this appeal.
In October 2013, AA filed a complaint for debt collection against Toft.
Toft was served with the complaint but never filed an answer or other responsive
pleading. In December 2013, AA obtained a default judgment against Toft and,
in the following December, obtained a wage execution. Thereafter, the 2013
matter lay dormant.
Nearly six years later, in October 2019, Toft filed a class action against
AA. In the class action, Toft asserted "'improper [consumer] debt collection
activity without required licenses,' in violation of the New Jersey Consumer
Finance Licensing Act (CFLA), N.J.S.A. 17:11C-1 to -49, and sought 'to void
1 R. 1:36-3. A-2827-22 2 [the December 2013 judgment] obtained against [her].'" See Toft slip op. at 3
(first alteration in the original).
In our April 2022 opinion, we addressed Toft's "appeal from the June . . .
2020 . . . order[] dismissing [her] class action complaint[] as barred by the entire
controversy doctrine." Id. at 2. We explained that Toft's "complaint alleged
that after acquiring a defaulted debt extended to Toft[,] . . . [AA] filed a lawsuit
against Toft to collect the debt and obtained a default judgment against her on
December 11, 2013." Id. at 3. Toft's complaint "alleged that [AA's] collection
lawsuit[] w[as] void ab initio due to the failure of [AA] to have obtained the
required licenses to pursue collection activity." Id. at 3-4.
In our opinion we affirmed the trial court's application of the entire
controversy doctrine because, as the judge observed, Toft "could have
challenged [AA]'s debt collection activity . . . [and] raised all the legal theories
asserted here as defenses/counterclaims in the prior [c]ollection [l]awsuit[]." Id.
at 5.
In February 2023, Toft filed a motion to vacate the December 2013
judgment and subsequent wage execution. The motion judge denied the motion
because "the motion was not filed within a reasonable time."
A-2827-22 3 On appeal, Toft contends the judge abused his discretion under Rule 4:50-
1(d), (e ), and (f) by denying the motion because the default judgment was void
under the CFLA. For support, Toft relies on our opinions in LVNV Funding,
LLC v. Deangelo, 464 N.J. Super. 103 (App. Div. 2020) and Berger v. Paterson
Veterans Taxi Serv., 244 N.J. Super. 200 (App. Div. 1990). We disagree.
We begin our discussion with a review of the principles governing our
analysis. "We review a motion under Rule 4:50-1 to vacate final judgment under
the abuse of discretion standard." 257-261 20th Ave. Realty, LLC v. Roberto,
477 N.J. Super. 339, 366 (App. Div. 2023) (citing U.S. Bank Nat'l. Ass'n v.
Guillaume, 209 N.J. 449, 467 (2012)). "Although the ordinary abuse of
discretion standard defies precise definition, it arises when a decision is made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002) (internal quotations and citations omitted). "[A] functional
approach to abuse of discretion examines whether there are good reasons for an
appellate court to defer to the particular decision at issue." Ibid.
When a
court has entered a default judgment . . . the party seeking to vacate the judgment must meet the standard of Rule 4:50-1:
A-2827-22 4 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: . . . (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.
[Guillame, 209 N.J. at 467 (quoting R. 4:50-1).]
Moreover, motions pursuant to Rule 4:50-1 (d), (e), and (f) "shall be made
within a reasonable time, . . . after the judgment, order or proceeding was entered
or taken." R. 4:50-2. "The rule[s are] designed to reconcile the strong interests
in finality of judgments and judicial efficiency with the equitable notion that
courts should have authority to avoid an unjust result in any given case."
Guillame, 209 N.J. at 467 (internal quotations and citations omitted).
"We have explained that a reasonable time is determined based upon the
totality of the circumstances . . . ." Romero v. Gold Star Distrib., LLC, 468 N.J.
Super. 274, 296 (App. Div. 2021). The judge "has the discretion to consider the
circumstances of each case." Ibid.
A-2827-22 5 We are convinced Toft's reliance on Deangelo and Berger is misplaced
and does not control our opinion on appeal. Moreover, applying well-
established principles to this matter, we are satisfied the judge did not abuse his
discretion in finding Toft's motion was not filed within a reasonable time , and
affirm the order denying the motion.
Toft contends Deangelo is "[a]nalogous to the instant action, [because it]
involved a debt collector's enforcement of an alleged debt it had no legal right
or authority to collect." In asserting that AA had "no legal right or authority to
collect," Toft resuscitates the CFLA claim initially asserted in her 2019 class
action filing.
In Deangelo, the defendant filed a Rule 4:50-1(f) motion to vacate an
eight-year-old default judgment. Deangelo, 464 N.J. Super. at 105. We found
no abuse of discretion and affirmed the order vacating the judgment after the
trial judge:
concluded that plaintiff violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2827-22
ASSET ACCEPTANCE, LLC, assignee of CITIFINANCIAL SERVICES INC./CITI FINANCIAL PLUS,
Plaintiff-Respondent,
v.
CAMILLA A. TOFT,
Defendant-Appellant. ______________________________
Argued April 23, 2024 – Decided May 8, 2024
Before Judges Paganelli and Whipple.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. DC-012106-13.
Mark H. Jensen argued the cause for appellant (Kim Law Firm LLC, attorneys; Yongmoon Kim and Mark H. Jensen, on the briefs).
Han Sheng Beh argued the cause for respondent (Hinshaw and Culbertson LLP, attorneys; Han Sheng Beh, on the brief). PER CURIAM
Defendant Camilla A. Toft appeals from a February 23, 2023 order
denying her motion to vacate a default judgment and wage execution entered in
favor of plaintiff Asset Acceptance, LLC (AA). We affirm.
We glean the facts and procedural history from our April 19, 2022,
opinion, Camilla Toft, on behalf of herself and those similarly situated v. Asset
Acceptance, LLC, Asset Acceptance Capital Corp., and Midland Credit Mgmt.,
Inc., A-4470-19 (App. Div. Apr. 19, 2022),1 as well as the from the motion
record in this appeal.
In October 2013, AA filed a complaint for debt collection against Toft.
Toft was served with the complaint but never filed an answer or other responsive
pleading. In December 2013, AA obtained a default judgment against Toft and,
in the following December, obtained a wage execution. Thereafter, the 2013
matter lay dormant.
Nearly six years later, in October 2019, Toft filed a class action against
AA. In the class action, Toft asserted "'improper [consumer] debt collection
activity without required licenses,' in violation of the New Jersey Consumer
Finance Licensing Act (CFLA), N.J.S.A. 17:11C-1 to -49, and sought 'to void
1 R. 1:36-3. A-2827-22 2 [the December 2013 judgment] obtained against [her].'" See Toft slip op. at 3
(first alteration in the original).
In our April 2022 opinion, we addressed Toft's "appeal from the June . . .
2020 . . . order[] dismissing [her] class action complaint[] as barred by the entire
controversy doctrine." Id. at 2. We explained that Toft's "complaint alleged
that after acquiring a defaulted debt extended to Toft[,] . . . [AA] filed a lawsuit
against Toft to collect the debt and obtained a default judgment against her on
December 11, 2013." Id. at 3. Toft's complaint "alleged that [AA's] collection
lawsuit[] w[as] void ab initio due to the failure of [AA] to have obtained the
required licenses to pursue collection activity." Id. at 3-4.
In our opinion we affirmed the trial court's application of the entire
controversy doctrine because, as the judge observed, Toft "could have
challenged [AA]'s debt collection activity . . . [and] raised all the legal theories
asserted here as defenses/counterclaims in the prior [c]ollection [l]awsuit[]." Id.
at 5.
In February 2023, Toft filed a motion to vacate the December 2013
judgment and subsequent wage execution. The motion judge denied the motion
because "the motion was not filed within a reasonable time."
A-2827-22 3 On appeal, Toft contends the judge abused his discretion under Rule 4:50-
1(d), (e ), and (f) by denying the motion because the default judgment was void
under the CFLA. For support, Toft relies on our opinions in LVNV Funding,
LLC v. Deangelo, 464 N.J. Super. 103 (App. Div. 2020) and Berger v. Paterson
Veterans Taxi Serv., 244 N.J. Super. 200 (App. Div. 1990). We disagree.
We begin our discussion with a review of the principles governing our
analysis. "We review a motion under Rule 4:50-1 to vacate final judgment under
the abuse of discretion standard." 257-261 20th Ave. Realty, LLC v. Roberto,
477 N.J. Super. 339, 366 (App. Div. 2023) (citing U.S. Bank Nat'l. Ass'n v.
Guillaume, 209 N.J. 449, 467 (2012)). "Although the ordinary abuse of
discretion standard defies precise definition, it arises when a decision is made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J.
561, 571 (2002) (internal quotations and citations omitted). "[A] functional
approach to abuse of discretion examines whether there are good reasons for an
appellate court to defer to the particular decision at issue." Ibid.
When a
court has entered a default judgment . . . the party seeking to vacate the judgment must meet the standard of Rule 4:50-1:
A-2827-22 4 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: . . . (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.
[Guillame, 209 N.J. at 467 (quoting R. 4:50-1).]
Moreover, motions pursuant to Rule 4:50-1 (d), (e), and (f) "shall be made
within a reasonable time, . . . after the judgment, order or proceeding was entered
or taken." R. 4:50-2. "The rule[s are] designed to reconcile the strong interests
in finality of judgments and judicial efficiency with the equitable notion that
courts should have authority to avoid an unjust result in any given case."
Guillame, 209 N.J. at 467 (internal quotations and citations omitted).
"We have explained that a reasonable time is determined based upon the
totality of the circumstances . . . ." Romero v. Gold Star Distrib., LLC, 468 N.J.
Super. 274, 296 (App. Div. 2021). The judge "has the discretion to consider the
circumstances of each case." Ibid.
A-2827-22 5 We are convinced Toft's reliance on Deangelo and Berger is misplaced
and does not control our opinion on appeal. Moreover, applying well-
established principles to this matter, we are satisfied the judge did not abuse his
discretion in finding Toft's motion was not filed within a reasonable time , and
affirm the order denying the motion.
Toft contends Deangelo is "[a]nalogous to the instant action, [because it]
involved a debt collector's enforcement of an alleged debt it had no legal right
or authority to collect." In asserting that AA had "no legal right or authority to
collect," Toft resuscitates the CFLA claim initially asserted in her 2019 class
action filing.
In Deangelo, the defendant filed a Rule 4:50-1(f) motion to vacate an
eight-year-old default judgment. Deangelo, 464 N.J. Super. at 105. We found
no abuse of discretion and affirmed the order vacating the judgment after the
trial judge:
concluded that plaintiff violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 – 1692p, because it failed to commence the suit "within four years after the cause of action . . . accrued," N.J.S.A. 12A:2-725(1). The judge, however, also found that defendant's neglect in failing to respond to the complaint was inexcusable. In weighing these conflicting circumstances, the judge concluded that plaintiff's breach of the Fair Debt Collection Practices Act outweighed defendant's inexcusable neglect;
A-2827-22 6 relying on Rule 4:50-1(f), the judge granted the motion and dismissed the time-barred complaint.
[Id. at 105.]
However, Deangelo is distinguishable from the matter on appeal. Unlike
in Deangelo, where there was no intervening litigation, here, Toft asserted her
CFLA claim in her subsequent 2019 class action filing against AA. The class
action filing reveals she knew, at least as of 2019, about the CFLA claim, which
she now reasserts to vacate the December 2013 judgment. Yet, Toft fails to
explain why she let four years expire after the class action was dismissed to
move to vacate the default judgment. In considering Rule 4:50-2's "reasonable
time" element, we conclude Toft's 2019 filing renders Deangelo inapposite.
Moreover, Toft's reliance on Berger, for the proposition "that a void
judgment may be moved against . . . at any time," overstates our holding in
Berger as it applies to the facts in this appeal. In Berger, "there [wa]s no
indication that [defendant] had actual notice of the suit until after the judgment"
and defendant filed the Rule 4:50-1(d) motion approximately two years "after
first bec[o]m[ing] aware of the judgment." Berger, 244 N.J. Super. at 205, 203.
Therefore, we held "when a court is satisfied on a R[ule] 4:50-1(d) application
that initial service of process was so defective that the judgment is void for want
A-2827-22 7 of in personam jurisdiction, the resulting void default judgment must ordinarily
be set aside." Id. at 205.
Unlike in Berger, Toft had notice, in fact she filed a class action against
AA that mirrors her claim that the default judgment is void. Moreover, Toft's
delay—ten years from the date of default judgment or four years from the
dismissal of her class action—is substantially longer than the defendant's two-
year delay in Berger. Under these circumstances Berger is distinguishable and
provides no support for Toft's assertion that she filed her Rule 4:50-1(d) motion
"within a reasonable time." R. 4:50-2.
Setting Deanglo and Berger aside, our review of the record reveals AA
was granted default judgment in 2013. Despite notice, Toft failed to move to
vacate the judgment. Instead, six years later, Toft filed a class action against
AA. The class action was dismissed in 2020, a decision affirmed by us in 2022.
Not until 2023 did Toft move to vacate the 2013 judgment. The basis for the
motion to vacate was the same basis as Toft's class action. Yet, Toft failed to
explain why she delayed—ten years after the entry of the judgment or four years
after the dismissal of her class action—to move to vacate the default judgment.
Nonetheless, these timeframes belie the notion that Toft's motion to vacate was
filed "within a reasonable time" under Rule 4:50-2.
A-2827-22 8 To the extent we have not addressed any of Toft's remaining arguments,
we conclude they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
A-2827-22 9