DEUTSCHE BANK NATIONAL TRUST COMPANY, ETC. VS.JIN S. CHOI(F-6432-13, BERGEN COUNTY AND STATEWIDE)
A-2947-15T3
| N.J. Super. Ct. App. Div. | Aug 25, 2017Background
- Choi and Yoon executed a mortgage on property in Palisades Park; Choi defaulted and the mortgage was later assigned to Deutsche Bank.
- Deutsche Bank filed a foreclosure complaint (Feb 2013) and the bank's process server made multiple personal-service attempts at the mortgaged premises and at 406 Crocus Hill (Choi's residence) without success.
- Bank performed searches (MVC, tax, internet, skip-trace, postmaster) identifying addresses including 406 Crocus Hill and P.O. Box 237, Leonia; certified mailings were returned unclaimed.
- Bank published notice of the complaint in a Bergen County newspaper on Oct 1, 2013, and filed an affidavit of diligent inquiry with its default application on Mar 25, 2014; default entered Apr 25, 2014.
- Choi later received a copy of the motion for final judgment (Aug 2015), moved to vacate the default (Sept 2015) asserting defective service and requested a plenary hearing; the Chancery Court denied relief and entered final judgment for Deutsche Bank (Feb 2016).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service by publication was proper after diligent inquiry | Bank: conducted reasonable, documented searches and multiple personal-service attempts, justifying publication under R.4:4-5(a)(3) | Choi: process was inadequate; affidavit of diligent inquiry unreliable | Court: service by publication was proper; inquiry was diligent and publication satisfied due process |
| Timeliness/validity of affidavit of diligent inquiry | Bank: affidavit need not precede publication; filed with default request within six months of publication as required for default entry | Choi: affidavit was filed too late (six months after publication) and thus defective | Court: Rules do not require affidavit before publication; affidavit filed timely for default entry and not untimely |
| Whether a plenary hearing on service was required | Bank: no genuine disputed material fact; affidavit and documents suffice | Choi: credibility and sufficiency of service efforts dispute warrants plenary hearing | Court: no genuine material factual dispute and Choi did not dispute specific affidavit facts; plenary hearing unnecessary |
| Whether default should be vacated for lack of meritorious defense | Bank: Choi failed to present a meritorious defense after being properly served | Choi: due process violated by defective service, so meritorious-defense requirement should not apply | Court: because service was proper, Choi had to show a meritorious defense and failed to do so; default not vacated |
Key Cases Cited
- Modan v. Modan, 327 N.J. Super. 44 (App. Div. 2000) (defines scope of "diligent inquiry" before service by publication)
- U.S. Bank Nat. Ass'n v. Guillaume, 209 N.J. 449 (2012) (abuse-of-discretion standard for procedural rulings)
- Bernhardt v. Alden Café, 374 N.J. Super. 271 (App. Div. 2005) (standard for reviewing motions to vacate default)
- M & D Associates v. Mandara, 336 N.J. Super. 341 (App. Div. 2000) (affidavit of diligent inquiry may be filed after publication)
- Peralta v. Heights Medical Center, Inc., 485 U.S. 80 (1988) (due process limits requirement of meritorious defense where service is defective)