STATE OF NEW JERSEY v. CHRISTOPHER FIGUEROA (07-09-3171
A-2450-15T3
| N.J. Super. Ct. App. Div. | Jun 20, 2017Background
- New Bank sued Green Bamboo, LLC and guarantors, including Chang D. Kim, on a $500,000 promissory note; complaint filed December 8, 2014.
- Plaintiff effected personal service on other defendants but could not personally serve Kim after three attempts at his Alpine residence (gated, intercom) in December 2014.
- Court authorized substituted service by certified and regular mail at three addresses (Alpine residence, Green Bamboo business addresses); return receipts showed signatures by Kim.
- Kim did not timely respond; default judgment entered July 7, 2015.
- Kim moved under R. 4:50 to vacate the default judgment (filed October 22, 2015); the motion and a reconsideration were denied and he appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of substituted service / whether judgment is void | Substituted service was proper after diligent attempts at personal service; certified mail receipts signed by Kim | Substituted service was improper; plaintiff failed to serve the motion and order authorizing substituted service, rendering judgment void under R. 4:50-1(d) | Court affirmed: substituted service was properly authorized and effected; absence of service of the motion papers does not void a judgment once summons and complaint were validly served |
| Requirement to show a meritorious defense to vacate judgment | Not required if relief sought on ground of defective service due process-based | Kim argued he shouldn't need to show meritorious defense | Court agreed that when relief is based on defective service movant need not show a meritorious defense (citing Due Process precedents) |
| Excusable neglect under R. 4:50-1(a) | N/A (plaintiff opposed) | Kim claimed excusable neglect based on his attorney’s conclusory statement that Kim mistakenly/ carelessly failed to appreciate the need to respond | Court affirmed denial: attorney’s hearsay, conclusory assertions and Kim’s own lack of factual explanation were insufficient to establish excusable neglect; movant failed to show meritorious defense required on this theory |
Key Cases Cited
- Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349 (App. Div. 2004) (attorney hearsay and conclusory statements insufficient to establish excusable neglect)
- Higgins v. Thurber, 413 N.J. Super. 1 (App. Div. 2010) (same principle affirmed on related procedural issues)
- Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) (due process limits requiring proof of meritorious defense not applicable when relief rests on lack of service)
- Midland Funding LLC v. Albern, 433 N.J. Super. 494 (App. Div. 2013) (discussing due process and service-based relief)
Affirmed.