Discover Bank v. Chryssoula Arsenis ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-2028-22
DISCOVER BANK,
Plaintiff-Respondent,
v.
CHRYSSOULA ARSENIS,
Defendant-Appellant.
Argued May 22, 2024 – Decided July 30, 2024
Before Judges Currier and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. DC-000755-
21.
Chryssoula Arsenis, appellant, argued the cause pro se.
Donald V. Valenzano, Jr. argued the cause for
respondent (Pressler, Felt & Warshaw, LLP, attorneys;
Donald V. Valenzano, Jr. and Michael J. Peters, on the
brief).
PER CURIAM
In this debt collection action, defendant appeals from the December 23,
2022 order entering judgment for plaintiff and the March 6, 2023 order denying
her motion for reconsideration. We affirm.
Plaintiff filed a complaint seeking judgment against defendant after she
defaulted on her credit card account. The Special Civil Part Clerk sent the
complaint by mail to 65 Mountain Blvd., Unit 207, Warren, New Jersey.
Thereafter, the "Customer Assistance Group" of the Speech & Language Center,
LLC located at the Mountain Blvd address sent a letter to plaintiff's counsel
stating:
Please be advised that Speech and Language
Center, L.L.C is in receipt of the legal case Docket NO.
SOM-DC-000755-21 Civil Action involving your
Legal Firm.
It would be greatly appreciated if you cease, and
halt serving irrelevant or personal matters to a business
entity, such as Speech and Language Center, L.L.C.
The unsigned letter carbon copied the Somerset Civil Division. The
certified mail had a sticker that stated "ATTEMPTED—NOT KNOWN." The
envelope also had writing on it that stated "REFUSED" and "return to sender."
The Special Civil Part deemed the service effective.
After receiving the anonymous letter, plaintiff found a residential address
for defendant and asked the Special Civil Part to vacate the effective service and
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serve the complaint on defendant at 6 Quail Run, Warren, New Jersey. Tax
assessment records indicated defendant was the sole and current owner of the
property. The court granted the application.
The clerk served the complaint by regular and certified mail to the Quail
Run address on September 28, 20211 but both were returned with a postal sticker
stating "ATTEMPTED—NOT KNOWN." The court dismissed the case for lack
of service in November 2021.
In April 2022, plaintiff moved to vacate the dismissal and deem the
September 28, 2021 service effective. In addition to the above-described
information regarding attempted service, plaintiff advised the court it had sent
a letter to defendant at the Quail Run address via FedEx and the delivery was
successful. In addition, plaintiff had not been notified defendant had changed
her address.
The court granted the motion on May 17, 2022, vacating the dismissal and
deeming service effective on September 28, 2021 at the Quail Run address.
Plaintiff sent the order to defendant via regular and certified mail. Both items
were refused. Defendant did not answer the complaint.
1
This appears to be a typographical error in the pleading. Per the USPS
Tracking notes, the certified mail was delivered September 29, 2021.
A-2028-22
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In November 2022, plaintiff moved for the entry of default judgment.
Defendant responded by objecting to the motion, stating she was never served
with the complaint. Defendant listed the Quail Run address as her address on
the answer and asserted she received the motion for entry of default judgment at
that address. Her listed email was speechandlanguage@gmail.com.
Judge Haekyoung Suh granted the motion on December 5, 2022, noting
the court could not consider defendant's objection because she was in default.
Judgment was entered against defendant for $12,279.41.
Thereafter, defendant moved to vacate default, reiterating she was not
served with the complaint. Judge Suh denied the motion on December 23, 2022.
In a cogent statement of reasons, Judge Suh stated:
Court records and plaintiff's certifications reflect that,
despite initial issues with mailing, the summons and
complaint were mailed and delivered to defendant's
home address on September 29, 2021 via regular and
certified mail. At oral argument plaintiff's counsel
confirmed that the summons and complaint, as well as
the May 20, 2022 [o]rder were served by regular and
certified mail to defendant. Although certified mail
was not signed for by defendant, the regular mail was
not returned. Accordingly, plaintiff's service complied
with the Court Rules and was proper. Defendant does
not dispute that she resides at the mailing address of 6
Quail Run, Warren, New Jersey, now or at the date of
mailing. Defendant's mere contention that she did not
sign for the certified mail is of no moment. The absence
of defendant's signature on the certified mailing card is
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not evidence of defective service and does not rebut the
presumption of proper service by regular mail.
The judge further noted defendant had not proffered a meritorious defense
to the complaint as required under Rule 4:50-1(a) to vacate judgment. Nor had
defendant demonstrated exceptional circumstances to permit relief from the
judgment under Rule 4:50-1(f).
Judge Suh denied defendant's subsequent motion for reconsideration on
March 6, 2023. In a written statement of reasons, Judge Suh stated:
Defendant has not articulated any basis upon
which this court erred or failed to appreciate the
significance of probative evidence. This court
thoroughly investigated defendant's contention that
there was a lack of service and confirmed the service
was properly effectuated. While the summons and
complaint were initially served at an employer's
address, plaintiff filed a certification of service dated
May 25, 2021 confirming the summons and complaint
were re-served on defendant at 6 Quail Run, Warren,
New Jersey. The certified mail tracking number in
eCourts confirmed that the summons and complaint
mailed via USPS certified mail were delivered to
defendant's home address at 6 Quail Run, Warren, New
Jersey 07059 on September 29, 2021 at 6:16 p.m.
Defendant has not identified any new evidence that was
not available at the time this court denied defendant's
motion to vacate. Nor has defendant presented a
meritorious defense. Defendant focuses on lack of
service and violating due process rights ignoring
entirely the May 17, 2022 determination of service.
Finding that defendant has not satisfied the
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requirements under R[ule] 4:49-2, defendant's motion
for reconsideration is denied.
On appeal, defendant contends the court erred in denying her motion to
vacate default judgment and in denying her motion for reconsideration because
she was not served with the summons and complaint.
We review both orders for an abuse of discretion. As our Supreme Court
has stated, a trial court's decision under Rule 4:50-1 "warrants substantial
deference, and should not be reversed unless it results in a clear abuse of
discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012).
We apply the same standard to a trial court's determination of a motion
for reconsideration. Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021).
An abuse of discretion occurs "when a decision is '"made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis."'" Guillaume, 209 N.J. at 467-68 (quoting Iliadis v. Wal-
Mart Stores, Inc., 191 N.J. 88, 123-24 (2007)).
Based on our review of the record and applicable law, we deem
defendant's arguments without merit. They do not warrant any further
discussion beyond the comments set forth in Judge Suh's written opinions of
December 23, 2022, and March 6, 2023. R. 2:11-3(e)(1)(E).
Affirmed.
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