PORTFOLIO RECOVERY ASSOCIATES, LLC VS. SIRISRI LIWATTANA(DC-013075-15, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 7, 2017
• Docket: A-3168-15T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3168-15T1

PORTFOLIO RECOVERY ASSOCIATES, LLC,

Plaintiff-Respondent,

v.

SIRISRI LIWATTANA,

Defendant-Appellant. _______________________________________________________

Submitted May 23, 2017 – Decided June 7, 2017

Before Judges Fisher and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Hudson County, Docket No. DC-013075-15.

Sirisri Liwattana, appellant pro se.

Thomas M. Murtha, attorney for respondent.

PER CURIAM

Plaintiff Portfolio Recovery Associates, LLC, commenced this

special civil part action, claiming defendant Sirisri Liwattana

owed $11,423.01 on a book account. The record on appeal is not

entirely clear, but we assume for present purposes the truth of

plaintiff's assertion that defendant's time to respond to the complaint expired on January 25, 2016. The following day, January

26, 2016, defendant filed a motion to dismiss the complaint. That

motion was not rejected by the clerk's office as an untimely

response to the complaint or because the existing filings might

have suggested defendant was in default; instead, the motion was

placed on a motion calendar and denied on its merits on February

19, 2016.

On February 17, 2016, plaintiff applied for entry of a default

judgment – notwithstanding the pending motion to dismiss that was

denied two days later – suggesting in its application that

defendant had not appeared in the case.1 True, defendant had not

filed an answer, but the pending motion constituted a responsive

pleading. See Midland Funding, LLC v. Albern, 433 N.J. Super. 494,

498-99 (App. Div. 2013).

Plaintiff's application for default judgment and defendant's

motion to dismiss were like ships that pass in the night. Neither

party responded to the other's application. Plaintiff's

1 The application for default judgment did not assert defendant was actually in default. One of the supporting affidavits, however, includes statements by plaintiff that: it "believe[d] no defendant herein is an infant or incompetent person"; the address used for service of process "is the [d]efendant's current address according to [p]laintiff's computer records"; and, after "diligent inquiry," to plaintiff's knowledge defendant was "not in the military service." These assertions could have led the clerk to assume defendant had not appeared in the action.

2 A-3168-15T1 application was granted two days before defendant's motion was

denied. There is no indication the motion judge was aware the

clerk had entered a default judgment.

Defendant appeals. He submitted a brief containing nine

separate arguments, including contentions that the judge erred in

denying the unopposed motion to dismiss and the clerk erred in

entering a default judgment when the case was contested. We need

not discuss all defendant's arguments. It is clear that we must

vacate the default judgment, affirm the denial of the motion to

dismiss and remand this contested matter to the trial court.

Our procedural rules favor adjudications on their merits and

not on mere technicalities. See Ragusa v. Lau, 119 N.J. 276, 284

(1990); Handelman v. Handelman, 17 N.J. 1, 10 (1954). As then

Judge (later Justice) Jacobs said for this court in Tumarkin v.

Friedman, 17 N.J. Super. 20, 27 (App. Div. 1951), certif. denied,

9 N.J. 287 (1952), the rules were designed to be "a means to the

end of obtaining just and expeditious determinations between the

parties on the ultimate merits." This sentiment is encapsulated

in Rule 1:1-2(a), which declares that the essential purpose of our

rules is "to secure a just determination, simplicity in procedure,

fairness in administration and the elimination of unjustifiable

expense and delay."

3 A-3168-15T1 By the time plaintiff sought a default judgment, defendant

had appeared by filing a responsive pleading in the form of a

motion to dismiss. Defendant's only fault – if there was fault at

all – was in filing the motion to dismiss a day later than required

and, consequently, in failing to seek an extension of time to

respond to the complaint, an application we assume would have been

readily granted. Simple, fundamental fairness barred entry of the

default judgment even if defendant's appearance was a day late.

The February 19, 2016 order denying defendant's motion to

dismiss is affirmed,2 the default judgment of February 17, 2016 is

vacated, and the matter is remanded to the trial court for entry

of an order permitting defendant to file an answer to the complaint

within a fixed time and allowing the matter to proceed as a

contested case if he answers.

Affirmed in part, vacated in part, and remanded. We do not

retain jurisdiction.

2 We find insufficient merit in defendant's arguments regarding the denial of his motion to dismiss to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).

4 A-3168-15T1