New Century Financial Services, Inc. v. Ivette Cordero

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2951-24 NEW CENTURY FINANCIAL SERVICES, INC., Plaintiff-Respondent, v. IVETTE CORDERO, Defendant-Appellant. ___________________________ Argued September 23, 2026 – Decided October 14, 2026 Before Judges Mayer and Vinci. On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. DC-006974-10. Yongmoon Kim argued the cause for appellant (Kim Law Firm LLC, attorneys; Yongmoon Kim, on the briefs). Jonathan M. Robbin (J. Robbin Law, PLLC) of the New York bar, admitted pro hac vice, argued the cause for respondent (Jacquelyn A. DiCicco (J. Robbin Law, PLLC), and Jonathan M. Robbin, attorneys; Austin O'Brien, on the brief). PER CURIAM Defendant Ivette Cordero appeals from an April 7, 2025 order denying her motion to vacate default judgment. We affirm substantially for the reasons set forth in Judge Dara Aquila Govan's thorough and well-reasoned written opinion. Prior to February 23, 2010, defendant obtained a Capital One credit card and defaulted by failing to pay amounts due. Plaintiff New Century Financial Services thereafter acquired the debt and, on April 8, 2010, filed a complaint against defendant in the Special Civil Part seeking judgment in the amount of $2,315.78, plus interest and attorneys' fees. In accordance with Rule 6:2-3(d)(1), on April 14, 2010, the clerk of the court attempted to serve defendant by "simultaneously mail[ing] . . . [service of] process by both certified and ordinary mail" at a post office box in Elizabeth. The certified mail receipt was returned to the clerk marked "not deliverable as addressed – unable to forward." On July 22, 2010, after plaintiff provided the court with an updated address for defendant, the clerk mailed the summons and complaint by certified and regular mail to defendant at a different post office box in Elizabeth. On August 19, 2020, the certified mail receipt was returned to the clerk by the A-2951-24 2 United States Postal Service without any indication it was undeliverable. The regular mail was not returned. Defendant did not answer the complaint. On August 31, 2010, plaintiff requested the entry of default judgment. On September 9, 2010, the court entered default judgment in the total amount of $2,729.96. On October 4, 2010, the court issued a writ of execution against goods and chattels in the amount of $3,011.78. On April 18, 2014, the court issued a second writ of execution against goods and chattels in the amount of $3,069.97. On August 22, 2016, LVNV Funding LLC (LVNV) acquired the judgment. By letter dated September 12, 2016, LVNV wrote to defendant at her address on Seymour Avenue in Newark, notifying her that "ownership of the judgment" entered against her in the lawsuit had been transferred to LVNV. The letter set forth the case name and docket number, identified the original creditor as "Capital One," and included defendant's Capital One account number. On November 14, 2017, LVNV requested the issuance of an alias writ of execution for a levy against defendant's Wells Fargo Bank account. That letter, which was delivered to defendant at her residential address in Elizabeth, again advised her that "[j]udgment ha[d] previously been entered" against her in the lawsuit. On November 20, 2017, a writ executing on goods and chattels issued A-2951-24 3 in the amount of $3,146.35. On November 16, 2019, the writ of execution was returned as "partly satisfied" after the court officer collected $1,210.00 from defendant's bank account. On August 27, 2024, defendant filed a motion to vacate default judgment pursuant to Rule 4:50-1. She argued the judgment was void because "[w]hen [plaintiff] sued [her] in 2010 . . . [she] never received the [s]ummons or [c]omplaint." She claimed she "never owned" the post office box where the summons and complaint were served and beginning at some point "[i]n 2010, [] was living in Puerto Rico." She also contended that, when she "got back to the United States in 2011, [she] learned that [her] identity was stolen" and was "receiving calls and letters threatening [her] with the loss of [her] property, cars, etc." According to defendant, she "did not know what they were collecting on" and "started making payments purely because [she] felt threatened." Defendant also argued the "debt was void" because plaintiff "was not properly licensed as a consumer lender under the New Jersey Consumer Finance Licensing Act" (NJCFLA), N.J.S.A. 17:11C-1 to -49, and was "taking money from [her] illegally." On April 7, 2025, after hearing oral argument, Judge Aquila Govan entered an order denying defendant's motion supported by a written decision. A-2951-24 4 The judge determined "service was effective pursuant to Rule 6:2-3(d)(4)" because the regular mail had not been returned and the certified mail, tendering the summons and complaint, failed to indicate "service had not been made." The judge concluded defendant's claims that she "did not own" the post office box where the summons and complaint were delivered and "resided in Puerto Rico at the time of the initiation of" the lawsuit were not "sufficient to rebut the presumption of good service established by the [c]ourt's record of service of process." The judge also determined defendant's motion was not filed "within a reasonable amount of time" as required by Rule 4:50-2. She found "[d]efendant was aware of the [j]udgment since at least November 2019" and waited "four years, nine months[,] and eight days to challenge the [j]udgment." The judge held that timeframe "was far too long to find diligence or concern on defendant's part that could excuse the delay." The judge rejected "[d]efendant's claim that enforcing [her] debt somehow [wa]s unfair" because "[t]here is nothing inherently wrong with paying back credit card debt" and defendant "never . . . denied opening the Capital One credit card or defaulting on her payment obligations." A-2951-24 5 The judge also rejected defendant's claim that the judgment was void because plaintiff was not properly licensed pursuant to the NJCFLA. She held "the NJCFLA does not provide a mechanism for action and enforcement to anyone other than the Commissioner of Banking and Insurance." On appeal, defendant argues the judge abused her discretion in ruling that the default judgment is not void pursuant to Rule 4:50-1(d) and (f). Specifically, defendant contends the judgment is void because she "was not served with the [s]ummons and [c]omplaint." She also contends she is entitled to relief under Rule 4:50-1(f) because she had a defense under the NJCFLA that was not asserted and the judge "fail[ed] to weigh public policy." Defendant further argues the judge abused her discretion by "misapplying" the "timeliness standard" under Rule 4:50-2.1 We are unconvinced. "We review a motion under Rule 4:50-1 to vacate final judgment under an 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)). "The trial court's determination under 1 Defendant also asserted the NJCFLA confers a private right of action. She subsequently acknowledged that our Supreme Court's opinion in Diana v. LVNV Funding LLC, 264 N.J. 354 (2026), "forecloses [that] argument." A-2951-24 6 [Rule 4:50-1] . . . should not be reversed unless it results in a clear abuse of discretion." Guillaume, 209 N.J. at 467 . To establish a right to relief under Rule 4:50-1(d), a movant must show "the judgment or order is void." A judgment may be set aside as void, for example, if the court lacked personal jurisdiction, Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86 (1988), or lacked subject matter jurisdiction. See Bank v. Kim, 361 N.J. Super. 331, 339 (App. Div. 2003). Errors, "[e]ven gross errors committed by a court in reaching a decision do not render the court's judgment or order void." Hendricks v. A.J. Ross Co., 232 N.J. Super. 243, 248-49 (App. Div. 1989) (citation omitted). Rule 4:50-1(f) has been described as a catch-all provision, and in "'exceptional cases its boundaries are as expansive as the need to achieve equity and justice.'" DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 270 (2009) (quoting Ct. Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966)). "[R]elief under Rule 4:50-1(f) is available only when 'truly exceptional circumstances are present,'" because of the "importance that we attach to the finality of judgments." Hous. Auth. of Morristown v. Little, 135 N.J. 274, 286 (1994) (quoting Baumann v. Marinaro, 95 N.J. 380, 395 (1984)). Not only must the movant "demonstrate the circumstances are exceptional" but also that "enforcement of the judgment or A-2951-24 7 order would be unjust, oppressive[,] or inequitable." Johnson v. Johnson, 320 N.J. Super. 371, 378 (App. Div. 1999). Motions pursuant to Rule 4:50-1(d) and (f) "shall be made within a reasonable time, . . . after the judgment, order or proceeding was entered or taken." R. 4:50-2. "[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 court "has the discretion to consider the circumstances of each case." Ibid. "The [Rules 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." Guillaume, 209 N.J. at 467 (internal quotation marks omitted). The length of time between entry of the default judgment and moving to vacate should be considered in determining whether to grant relief. Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534, 541 (App. Div. 2003). There is no basis for us to disturb the judge's determination that defendant's motion was not filed within a reasonable time as required by Rule 4:50-2. Defendant's motion was filed nearly fourteen years after entry of the final judgment. In the intervening years, defendant received numerous notices A-2951-24 8 and writs of execution alerting her to the judgment against her. She does not deny receiving any of those documents, nor does she deny knowing funds were collected from her bank account to satisfy the judgment in November 2019. The judge's finding that defendant filed her motion too late was based on the totality of the circumstances, including overwhelming evidence in the record. There is also no basis for us to disturb the judge's determination that defendant failed to overcome the presumption of effective service. The clerk simultaneously mailed the summons and complaint to defendant by regular and certified mail as required by Rule 6:2-3(b) and Rule 6:2-3(d)(1). The simultaneous mailing constitutes effective service unless the mail is: (1) "returned to the court by the postal service with a marking indicating it has not been delivered" or (2) "the court has other reason to believe that service was not effected." R. 6:2-3(d)(4). A presumption of effective service is created by a mailing that complies with the provisions of Rule 6:2-3(d) and is based on the recognized "presumption that mail properly addressed, stamped, and posted was received by the party to whom it was addressed." SSI Med. Servs., Inc. v. HHS, Div. of Med. Assistance & Health Servs., 146 N.J. 614, 621 (1996). If evidence tending to disprove effective service is presented, the presumption of effective service A-2951-24 9 is eliminated from the case. Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 426-27 (App. Div. 2003). Here, after the clerk mailed the summons and complaint to defendant, the regular mail was not returned, and the certified mail receipt was returned with no indication that it was not delivered. As the judge found, defendant's claim that she "did not own" the post office box where the summons and complaint were delivered is not persuasive. Notably, defendant did not deny that she received mail at that post office box, only that she did not "own" it. Nor is her claim that she resided in Puerto Rico for some period of time in 2010 sufficient to overcome the presumption of effective service. We are also convinced the judge did not misapply her discretion by denying defendant's motion on the merits. Defendant failed to demonstrate the judgment was void as required by Rule 4:50-1(d) because she did not rebut the presumption that she was properly served. Defendant's claim that she could have asserted a defense based on the NJCFLA does not render the judgment void. Relief under Rule 4:50-1(f) is available only when the movant demonstrates "the circumstances are exceptional" and that "enforcement of the judgment or order would be unjust, oppressive[,] or inequitable." Johnson, 320 A-2951-24 10 N.J. Super. at 378. There is nothing unjust, oppressive, or inequitable about compelling defendant to pay the judgment. As the judge aptly noted, defendant has never denied she incurred the debt and failed to pay the amount alleged due. Defendant failed to demonstrate exceptional circumstances sufficient to justify relief under Rule 4:50-1(f). To the extent we have not specifically addressed any remaining arguments, including defendant's contention that the court failed "to weigh public policy" under the facts of this case, it is because they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Affirmed. A-2951-24 11