NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
PER CURIAM.
In this collection action, defendant Gilbert Gonzalez appeals an order denying his motion to vacate a default judgment that was entered nearly six years earlier. We affirm.
The record reveals that plaintiff, Palisades Collection, LLC, filed its complaint in the Essex County Special Civil Part on May 1, 2007. Plaintiff sought payment of $3124.37 allegedly owed on defendant's delinquent Verizon account. Pursuant to the service of process rule applicable to actions filed in the Special Civil Part, Rule 6:2-3(d)(1), the clerk of the court simultaneously mailed the summons and complaint to defendant at his Newark address by both certified and ordinary mail. The certified mailing was returned after several notices were left for defendant. The regular mail was not returned. Defendant did not file a responsive pleading, and on May 29, 2008, plaintiff served defendant with a notice of motion to enter judgment. Defendant did not object, and default judgment was entered on June 23, 2008, for $3311.70 plus costs.
After several attempts by plaintiff to collect the judgment were unsuccessful, plaintiff levied on defendant's bank account in February 2014. When notified of the bank levy, defendant moved to vacate the default judgment on March 5, 2014, and thereafter retained counsel. In seeking relief from the default judgment, defendant certified that he had "no record or recollection of ever receiving" the summons and complaint. He further averred that "the first notice I received of this lawsuit was when I checked my bank account ... on February 2, 2014, and saw that $3246.82 had been levied." Defendant also denied that he resided in New Jersey when the debt was allegedly incurred or that he ever attempted to enter into a payment plan with plaintiff's counsel.
In opposing defendant's motion, plaintiff's counsel certified to a litany of notices sent to defendant following the initial service, as well as a series of conversations with defendant establishing his knowledge of the lawsuit. Counsel certified:
3. Shortly after service of the [s]ummons and [c]omplaint, [d]efendant spoke to this office over the phone orally confirming his home address [in Newark]. This is the same address at which [d]efendant was served with the [s]ummons and [c]omplaint. During this phone conversation, [d]efendant advised that he had placed his debt with a debt consolidation company.... Defendant authorized this office to communicate with a credit counseling service called Affordable Debt Solution on his behalf to resolve the debt.
....
5. On May 29, 2008, this office filed a [m]otion to [e]nter [j]udgment, as [d]efendant had not filed a timely [a]nswer in response to the [c]omplaint and was in default. This motion was served on [d]efendant by certified and regular mail. The certified mail was returned to this office unclaimed and the regular mail was not returned. However, [d]efendant did not file opposition and on June 20, 2008, [Judge] Dennis F. Carey, III, [] entered... [j]udgment in favor of [p]laintiff. A copy of this [o]rder was served upon [d]efendant by certified and regular mail on June 30, 2008.
6. On July 10, 2008, this office served [d]efendant with a [n]otice of [m]otion for [w]age [e]xecution by certified and regular mail.
7. On July 17, 2008, [d]efendant telephoned this office and again confirmed [his Newark home address]. During this phone call, [d]efendant advised he had been laid off due to the weak economy, but promised he would call back to work out a payment plan when he found new employment. Defendant also advised during this phone call that [he] was contemplating filing for bankruptcy.
8. On September 14, 2009, this office again served [d]efendant with a [n]otice of [m]otion for [w]age [e]xecution by certified and regular mail. On September 15, 2009, [d]efendant telephoned this office and argued that he had cancelled his account with the original creditor, Verizon, when he only owed $400[] and that now as he was only working part-time, [he] had no interest in setting up any type of payment arrangement. Defendant again advised he was possibly going to file for bankruptcy.
The court heard oral argument on June 6, 2014, and denied defendant's motion. In an oral opinion, the court concluded that defendant failed to establish sufficient grounds for relief from judgment under Rule 4:50-1. This appeal followed.
On appeal, defendant argues that the motion judge abused his discretion under Rule 4:50-1 by refusing to vacate the judgment. Defendant contends that he is entitled to relief under Rule 4:50-1(d) and that the judgment was void because he was never served with the summons and complaint. He also contends that regardless of whether service was proper, he has demonstrated both excusable neglect and a meritorious defense and accordingly his motion should have been granted under subsection (a) of the Rule. Finally, defendant seeks relief under the "catch-all" provision of subsection (f). Having reviewed the record, we conclude that these arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.
Rule 4:50-1 provides, in pertinent part, as follows:
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: (a) mistake, inadvertence, surprise, or excusable neglect; ... (d) the judgment or order is void; ... or (f) any other reason justifying relief from the operation of the judgment or order.
A trial judge's decision to grant or deny an application to vacate a default judgment is accorded substantial deference and will not be disturbed absent a "clear abuse of discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012); Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994). A party seeking relief from a default judgment pursuant to Rule 4:50-1(a) must demonstrate both excusable neglect and a meritorious defense. Dynasty Bldg. Corp. v. Ackerman, 376 N.J.Super. 280, 285 (App. Div. 2005) (citing Marder v. Realty Constr. Co., 84 N.J.Super. 313, 318 (App. Div.), aff'd, 43 N.J. 508 (1964)). Motions seeking relief under subsection (a) must be made within one year after entry of judgment. R. 4:50-2. Although a claim that a judgment is void under Rule 4:50-1(d) does not require a showing of excusable neglect, it must still be filed within a reasonable time after the judgment is entered. R. 4:50-2; M & D Assocs. v. Mandara, 366 N.J.Super. 341, 351-52 (App. Div.), certif. denied, 180 N.J. 151 (2004).
As noted, service of process in Special Civil Part actions is governed by Rule 6:2-3. The Rule provides that "[t]he clerk of the court shall simultaneously mail such process by both certified and ordinary mail." R. 6:2-3(d)(1). It further provides in relevant part:
Effective service. Consistent with due process of law, service by mail pursuant to this rule shall have the same effect as personal service, and the simultaneous mailing shall constitute effective service unless the mail is returned to the court by the postal service with a marking indicating it has not been delivered, such as "Moved, Left No Address," "Attempted — Addressee Not Known," "No Such Number/Street," "Insufficient Address," "Not Deliverable as Addressed — Unable to Forward," or the court has other reason to believe that service was not effected.
[R. 6:2-3(d)(4).]
Here, the certified mailing sent by the court did not bear any of those markings upon its return, and the regular mail was not returned. Importantly, also, defendant in his certification did not deny that he resided at the Newark address where the summons and complaint were served, and at oral argument his counsel conceded that defendant had lived at that address. Accordingly, we conclude that defendant was validly served with the summons and complaint.
It is also clear from the numerous notices that were thereafter sent to defendant and his various telephone conversations with plaintiff's counsel that defendant was aware of the pending lawsuit, contrary to his claim that he had no knowledge of it until the 2014 bank levy. While defendant specifically denied agreeing to any payment plan, he did not deny the phone calls themselves. Notably, on April 7, 2014, while still self-represented, defendant advised the court that he had previously "signed up for Affordable Debt Solution," which corroborated the information imparted to plaintiff's counsel soon after defendant was served with the summons and complaint. The evidence was thus sufficient to show that that defendant had notice of the action and received notice of the entry of the judgment. See Wohlegmuth v. 560 Ocean Club, 302 N.J.Super. 306, 311-12 (App. Div. 1997); Rogan Equities, Inc. v. Santini, 289 N.J.Super. 95, 112-13 (App. Div.), certif. denied, 145 N.J. 375 (1996).
Regarding his Rule 4:50-1(a) contention, we conclude, as did the motion judge, that defendant has not demonstrated excusable neglect as required under this section of the rule and case law. See Guillaume, supra, 209 N.J. at 469. "Excusable neglect" may be found when the default was "`attributable to an honest mistake that is compatible with due diligence or reasonable prudence.'" Id. at 468 (quoting Mancini v. EDS, 132 N.J. 330, 335 (1993)). Here, plaintiff properly served defendant with the summons and complaint. Defendant took no action, and thereafter ignored, without excuse, continued notices of these proceedings. Additionally, relief on these grounds is barred by the one-year time limitation of Rule 4:50-2.
Finally, our case law recognizes that, in limited situations, a party may be entitled to relief from a default judgment under Rule 4:50-1, even where that party's failure to have contested the complaint in a timely fashion is not readily explained. In particular, Rule 4:50-1(f) provides that a court may vacate a judgment for "any other reason justifying relief from the operation of the judgment or order." To obtain relief under this subsection, defendant must ordinarily show that the circumstances are exceptional and that enforcement of the judgment would be unjust, oppressive, or inequitable. See Guillaume, supra, 209 N.J. at 484. Defendant has failed to make such showing here, nor has he otherwise established that the judge abused his discretion in denying defendant's motion to vacate the default judgment.
Affirmed.
