Opinion
DOCKET NO. A-4642-10T3
05-07-2013
RJM ACQUISITIONS, LLC, Assignee of Wachovia Bank, N.A., Plaintiff-Respondent, v. ALEXIS NGO, Defendant-Appellant.
Alexis Ngo, appellant pro se. Morgan, Bornstein & Morgan, attorneys for respondent (Kristen M. Sinclair, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and Kennedy.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. DC-011220-10.
Alexis Ngo, appellant pro se.
Morgan, Bornstein & Morgan, attorneys for respondent (Kristen M. Sinclair, on the brief). PER CURIAM
Defendant Alexis Ngo appeals from two May 20, 2011 Special Civil Part orders, denying, for a second time, his request to vacate or amend a judgment in favor of plaintiff RJM Acquisitions LLC as assignee of Wachovia Bank, NA (Wachovia), and ordering turnover of levied funds. Defendant is not fluent in English, and his brief was not professionally translated, but converted to English using "Google Translate." As a result, some arguments are murky. We understand he challenges the entry of summary judgment, asserting a trial was necessary as he believes he has a defense to plaintiff's collection action. We have considered defendant's arguments and find his assertions are procedurally flawed and substantively without merit. Accordingly, we affirm.
These facts are taken from the motion record. On April 30, 2008, defendant deposited a $4,750 check into his Wachovia checking account. He then withdrew the same amount. The check was returned by the drawee bank because the account drawn upon held insufficient funds to satisfy the account. Wachovia charged defendant's account with the amount of the returned check plus applicable fees. Defendant's account was short of funds, resulting in a negative account balance of $3,746.49. When defendant failed to remit payment, Wachovia closed his checking account and assigned the receivable to plaintiff, who commenced this collection action.
In the course of the litigation, defendant failed to respond to plaintiff's interrogatories. Plaintiff moved to strike defendant's answer and for summary judgment. Defendant's responsive pleading included the single word, "trial." The judge granted plaintiff's motions, striking defendant's answer and providing conditions of reinstatement; further, summary default judgment was entered. Plaintiff's proofs resulted in a judgment against defendant for $3,754.49.
Defendant moved to vacate the summary judgment. The certification accompanying the notice of motion included brief phrases which asserted defendant was not properly served and suggested he did not owe the bank the money and wanted a trial. Other than these broad generalizations, no specific facts were set forth. Plaintiff opposed the motion certifying defendant had not cured the discovery deficiencies, and had received the complaint and motions as evidenced by his answer and response, respectively. Moreover, defendant offered no facts in dispute or legal defenses to plaintiff's claims. The judge denied defendant's motion stating defendant failed to state a factual or legal basis to warrant reconsideration of the judgment.
Plaintiff proceeded to execute the judgment on one of defendant's depository accounts held with another bank. Following effectuation of its levy, plaintiff moved for an order to turn over the funds. Defendant responded by filing a second motion seeking to vacate or modify the judgment. Defendant's certification is not clear, and does not state facts, which if considered, would alter the prior order. He attaches documents allegedly from Standard Financial, Inc., which signifies a sweepstakes scam. The phony notification included a check for deposit, which we presume is the check deposited with Wachovia. Defendant withdrew the funds and purchased a money gram, then wired the funds to satisfy the alleged taxes due on the purported winnings. Apparently, defendant believes that since he was bilked, he has no obligation to repay Wachovia.
On May 20, 2011, the matter was heard by a different judge. Defendant appeared and addressed the court through an interpreter. He expressed his position that the sweepstakes check he deposited was invalid; therefore he felt no obligation to repay Wachovia. He also suggested for the first time that he was told by someone in Wachovia the check was "good." Plaintiff responded that the check was timely dishonored. The judge granted plaintiff's motion for turnover requiring defendant's bank to release the levied amount to plaintiff. Defendant's motion to vacate the judgment was denied.
Defendant filed an appeal from the May 20, 2011 orders. He also filed another motion in the Law Division to vacate the judgment. We need not recite the result of that application. We also refrain from relating the procedural problems in perfecting defendant's appeal, which directly results in the age of this matter.
Another procedural problem observed is defendant argues to vacate the judgment; however, appeal from the judgment is untimely. An appellant must file an appeal within forty-five days of entry of the order or judgment. R. 2:4—1(a). The forty-five day period is tolled pending consideration of a motion to reconsider the order. See R. 2:4—3(e) (stating the period for filing an appeal is tolled "[i]n civil actions . . . by the timely filing and service of a motion to the trial court . . . for rehearing or reconsideration seeking to alter or amend the judgment or order"). Then the forty-five day period resumes "run[ning] from the date of the entry of an order disposing of such a motion." Id.
Here, summary judgment was granted on December 30, 2010. Thirteen days expired prior to defendant's first motion to vacate the judgment, filed on January 13, 2011. The forty-five day period was tolled until the motion was decided on March 22, 2011. Defendant's next motion was not submitted for thirty-two days, being filed on April 26, 2011. Time to appeal from summary judgment expired on April 23, 2011. No further tolling results because defendant filed another motion to reconsider the denial of his first reconsideration motion. See Aybar v. Crispin—Reyes, 118 F.3d 10, 14 (1st Cir. 1997) ("While an initial motion for reconsideration filed within ten days of the entry of the final judgment tolls the period in which a litigant must file a notice of appeal, . . . a subsequent motion for reconsideration served within ten days of the order denying the initial motion for reconsideration but more than ten days after the entry of the original judgment does not toll the time for appealing from that judgment." (internal quotation marks and citations omitted)), cert. denied, 522 U.S. 1078, 118 S. Ct. 857, 139 L. Ed. 2d 757 (1998); Charles L.M. v. Ne. Indep. Sch. Bd. , 884 F.2d 869, 870 (5th Cir. 1989) ("[W]here an appellant files a second motion to reconsider based upon substantially the same grounds as urged in the earlier motion, the filing of the second motion does not interrupt the running of the time for appeal, and the appeal must be dismissed." (internal quotation marks and citations omitted)). We agree that "[t]he interest of finality requires that parties generally get only one bite at the [reconsideration] apple for the purpose of tolling the time for bringing an appeal." Charles L.M., 884 F.2d at 871.
Further, we discern no abuse of discretion or legal error occurred in the entry of the May 20, 2011 orders. See Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996) (stating appellate review of a trial court's decision on a motion for reconsideration considers whether an abuse of discretion occurred). Defendant offers no basis supporting the contention the court ignored facts that would obviate summary judgment or legal defenses avoiding defendant's liability. Defendant was defrauded when he accepted as true the sweepstakes award. In jumping to claim his winnings he withdrew monies from Wachovia that he ultimately did not have on deposit. His inexperience in falling for a con does not erase his obligation to repay Wachovia. As the Law Division judge noted, the bank is entitled to return of the funds and has properly proceeded to collect its debt.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION