Opinion
DOCKET NO. A-4918-11T1
05-13-2013
DISCOVER BANK, Plaintiff-Respondent, v. OSMARA G. PALOMINO, Defendant-Appellant.
Osmara Palomino, appellant pro se. Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. DC-3695-11.
Osmara Palomino, appellant pro se.
Respondent has not filed a brief. PER CURIAM
Defendant Osmara Palomino appeals from an April 27, 2012 order denying her motion to vacate a final judgment by default entered against her on September 2, 2011 in the amount of $2740.92 plus reasonable attorneys fees and costs for purchases made on a credit card. As expressed by Judge Francine Schott at oral argument and set forth in the order, the motion was denied "without prejudice" for defendant to present more than a mere general denial. We affirm.
Defendant did not obtain plaintiff's attorney's consent to adjourn the Special Civil Part trial of the collection case scheduled for May 30, 2011, nor did she seek permission of the court for an adjournment. Defendant was out of state on the trial date and did not appear. Apparently, plaintiff's attorney did not alert the court to the fact that defendant was out of town. The court entered default. As detailed by Judge Schott at oral argument on the subject motion, plaintiff filed a motion to enter default judgment, defendant filed opposition, the court set it down for a hearing on September 2, 2011, and despite the court having left a voice mail at defendant's acknowledged number prior to that date, defendant failed to appear. Accordingly, the court entered default judgment.
The record reflects that defendant acknowledged notice of the default judgment. On October 31, 2011, defendant filed a motion to vacate the default judgment. The motion was opposed and denied by order of December 19, 2011 with the notation "Movant failed to appear for oral argument (Movant notified of 12/19 argument by message left Dec. 13, 2011)."
On January 18, 2012, plaintiff filed a notice of application for wage execution. Defendant objected and filed another motion to vacate the default judgment. At oral argument, defendant had a myriad of excuses for missing the hearings.
Judge Schott denied defendant's motion to vacate the default judgment without prejudice to her ability to present a meritorious defense. She also permitted the wage execution. The judge was willing to give defendant the benefit of the doubt that she had established excusable neglect if she were able to proffer a meritorious defense, which she was not compelled to do under the circumstances of this case. The judge noted, however, that all defendant had done was to assert a general denial that she did not owe the money, which was insufficient to result in an order vacating the default judgment. See Marder v. Realty Const. Co., 84 N.J. Super. 313, 318 (App. Div.) (holding that "a defendant seeking to reopen a default judgment must show that the neglect to answer was excusable under the circumstances and that he [or she] has a meritorious defense"), aff'd, 43 N.J. 508 (1964). She advised defendant of her deficiencies and what she needed to present to satisfy her burden to vacate the default judgment. Defendant had more than ample ability to have her "day in court" throughout this litigation, and we discern no denial of due process.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION