Midland Funding LLC v. Afeez Ayinde

• Court: New Jersey Superior Court Appellate Division
• Decided: October 11, 2024
• Docket: A-3751-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3751-22

MIDLAND FUNDING LLC,

Plaintiff-Respondent,

v.

AFEEZ AYINDE,

Defendant-Appellant. ________________________

Argued August 13, 2024 – Decided October 11, 2024

Before Judges Mayer and Bishop-Thompson.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-007497-18.

Mark Jensen argued the cause for appellant (Kim Law Firm LLC, attorneys; Yongmoon Kim and Mark Jensen, on the briefs).

Han Sheng Beh argued the cause for respondent (Hinshaw & Culbertson, LLP, attorneys; Han Sheng Beh, on the brief).

PER CURIAM In this credit card collection lawsuit, defendant Afeez Ayinde appeals

from two Law Division orders: a May 5, 2023 order denying defendant's motion

to vacate a bank levy and default judgment and a July 14, 2023 order denying

defendant's motion for reconsideration. We affirm.

We glean the relevant facts from the motion record. Defendant defaulted

on credit card debt owed to Credit One Bank, N.A., which was purchased by

plaintiff Midland Funding LLC. On May 31, 2018, plaintiff filed a complaint

against defendant, seeking the outstanding balance of $871.10, plus costs.

Pursuant to Rule 6:2-3(a), the clerk of the court served the complaint on

defendant by regular and certified mail at his last known address in Union. The

regular mail was not returned, and the certified mail was returned as "unclaimed"

by the post office. In his certification, defendant attested that he no longer

resided in Union as of 2012 and moved to Carteret in April 2018.

Defendant failed to file an answer or otherwise respond to the complaint.

Plaintiff requested the entry of a default judgment, which was subsequently

entered by the court clerk on August 14, 2018. Thereafter, on September 21,

2018, plaintiff obtained a writ of execution against bank funds in defendant's

name. Defendant did not respond to any of the notices sent by regular mail to

the Union address. In seeking to vacate the bank levy and default judgment

A-3751-22 2 defendant certified that he "did not receive [s]ervice of [p]rocess" and had no

knowledge of the proceedings against him until plaintiff levied his bank account

in October 2018.

Thereafter, writs of execution were entered on October 30, 2020 against

defendant's wages and on December 16, 2022 against defendant's goods and

chattels. In March 2023, plaintiff filed a motion to turnover funds to satisfy the

judgment. Plaintiff continued to mail notices to the Union address. The next

month, defendant moved to vacate the bank levy and default judgment, which

plaintiff opposed.

In an oral opinion on May 5, 2023 accompanied by an order, the trial court

denied defendant's motion, finding defendant's motion to vacate was "untimely"

and "no explanation was offered" for the lengthy delay. Defendant then moved

for reconsideration of the May 5 order. In a comprehensive oral opinion

rendered on July 14, 2023 denying defendant's motion, the court found

defendant (1) impermissibly attempted to enlarge the record by stating that he

was not aware of the judgment until February 2023, (2) Rule 4:50-2 required a

motion to vacate be brought within one year, and (3) waived the lack of personal

jurisdiction defense because it was not raised within a reasonable time.

A-3751-22 3 On appeal, defendant argues the trial court abused its discretion in finding

(1) the default judgment was not void pursuant to Rule 4:50-1(d) and (2) the

default judgment was not void pursuant to Rule 4:50-1(f). We disagree and

affirm.

A trial court's decision to grant or deny a motion to vacate default

judgment will not be disturbed absent a clear abuse of discretion. U.S. Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012); Hous. Auth. of

Morristown v. Little, 135 N.J. 274, 283 (1994). "The trial court's determination

under the rule warrants substantial deference and should not be reversed unless

it results in a clear abuse of discretion." Guillaume, 209 N.J. at 467. To show

an abuse of discretion, the moving party must demonstrate the decision was

"made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis." Borough of Englewood Cliffs v.

Trautner, 478 N.J. Super. 426, 437 (App. Div. 2024) (quoting Flagg v. Essex

Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

When a default judgment has been entered, the party seeking to vacate it

"must meet the standard of Rule 4:50-1." Guillaume, 209 N.J. at 467. Rule

4:50-1(d) permits a party to vacate a default judgment by demonstrating the

judgment or order is void. In such cases, the movant has "the overall burden of

A-3751-22 4 demonstrating that its failure to answer or otherwise appear and defend should

be excused." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425-

26 (App. Div. 2003). A motion brought under this rule "shall be made within a

reasonable time, . . . after the judgment, order[,] or proceeding was entered or

taken." R. 4:50-2.

Here, the trial court denied defendant's motion to vacate the bank levy and

the default judgment because defendant offered no reasonable explanation for

his nearly four and a half years of inaction. Specifically, defendant offered no

explanation for delay in moving to vacate the bank levy or the default judgment

until after the writ of execution was served in October 2018. Instead, defendant

contends that he was not properly served with the 2018 complaint, asserting that

he did not live in Union at the time the complaint or the subsequent notices and

pleadings were served. Defendant argues the judge should have focused on

plaintiff's non-compliance with the court rules and the notices should have been

sent by regular and certified mail but were not. The record, however, does not

support defendant's argument. The regular mail serving the complaint and other

notices were not returned, and the certified mail forwarding those documents

were marked "unclaimed;" thus, service was effective pursuant to Rule 6:2-

A-3751-22 5 3(d)(4). We are satisfied defendant failed to meet the requisite standard by

providing a factual basis the significant delay in filing the motion to vacate.

Under Rule 4:50-1(f), relief is available only when truly exceptional

circumstances are present and when no other subsection of the rule applies. 257-

261 20th Ave. Realty, LLC v. Roberto, 477 N.J. Super. 339, 367 (App. Div.

2023). As noted above, defendant failed to present a reasonable explanation for

the lengthy delay in moving to vacate the bank levy and the default judgment.

Defendant's renewed argument regarding service of process does not establish

exceptional circumstances under Rule 4:50-1(f) for vacating the default

judgment. Therefore, we reject defendant's arguments as lacking merit. R. 2:11-

3(e)(1)(E).

Affirmed.

A-3751-22 6