Midland Funding LLC v. Afeez Ayinde ( 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NOT FOR PUBLICATION WITHOUT THE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-3751-22
MIDLAND FUNDING LLC,
Plaintiff-Respondent,
v.
AFEEZ AYINDE,
Defendant-Appellant.
________________________
Argued August 13, 2024 – Decided October 11, 2024
Before Judges Mayer and Bishop-Thompson.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. DC-007497-18.
Mark Jensen argued the cause for appellant (Kim Law
Firm LLC, attorneys; Yongmoon Kim and Mark
Jensen, on the briefs).
Han Sheng Beh argued the cause for respondent
(Hinshaw & Culbertson, LLP, attorneys; Han Sheng
Beh, on the brief).
PER CURIAM
In this credit card collection lawsuit, defendant Afeez Ayinde appeals
from two Law Division orders: a May 5, 2023 order denying defendant's motion
to vacate a bank levy and default judgment and a July 14, 2023 order denying
defendant's motion for reconsideration. We affirm.
We glean the relevant facts from the motion record. Defendant defaulted
on credit card debt owed to Credit One Bank, N.A., which was purchased by
plaintiff Midland Funding LLC. On May 31, 2018, plaintiff filed a complaint
against defendant, seeking the outstanding balance of $871.10, plus costs.
Pursuant to Rule 6:2-3(a), the clerk of the court served the complaint on
defendant by regular and certified mail at his last known address in Union. The
regular mail was not returned, and the certified mail was returned as "unclaimed"
by the post office. In his certification, defendant attested that he no longer
resided in Union as of 2012 and moved to Carteret in April 2018.
Defendant failed to file an answer or otherwise respond to the complaint.
Plaintiff requested the entry of a default judgment, which was subsequently
entered by the court clerk on August 14, 2018. Thereafter, on September 21,
2018, plaintiff obtained a writ of execution against bank funds in defendant's
name. Defendant did not respond to any of the notices sent by regular mail to
the Union address. In seeking to vacate the bank levy and default judgment
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defendant certified that he "did not receive [s]ervice of [p]rocess" and had no
knowledge of the proceedings against him until plaintiff levied his bank account
in October 2018.
Thereafter, writs of execution were entered on October 30, 2020 against
defendant's wages and on December 16, 2022 against defendant's goods and
chattels. In March 2023, plaintiff filed a motion to turnover funds to satisfy the
judgment. Plaintiff continued to mail notices to the Union address. The next
month, defendant moved to vacate the bank levy and default judgment, which
plaintiff opposed.
In an oral opinion on May 5, 2023 accompanied by an order, the trial court
denied defendant's motion, finding defendant's motion to vacate was "untimely"
and "no explanation was offered" for the lengthy delay. Defendant then moved
for reconsideration of the May 5 order. In a comprehensive oral opinion
rendered on July 14, 2023 denying defendant's motion, the court found
defendant (1) impermissibly attempted to enlarge the record by stating that he
was not aware of the judgment until February 2023, (2) Rule 4:50-2 required a
motion to vacate be brought within one year, and (3) waived the lack of personal
jurisdiction defense because it was not raised within a reasonable time.
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On appeal, defendant argues the trial court abused its discretion in finding
(1) the default judgment was not void pursuant to Rule 4:50-1(d) and (2) the
default judgment was not void pursuant to Rule 4:50-1(f). We disagree and
affirm.
A trial court's decision to grant or deny a motion to vacate default
judgment will not be disturbed absent a clear abuse of discretion. U.S. Bank
Nat'l Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012); Hous. Auth. of
Morristown v. Little, 135 N.J. 274, 283 (1994). "The trial court's determination
under the rule warrants substantial deference and should not be reversed unless
it results in a clear abuse of discretion." Guillaume, 209 N.J. at 467. To show
an abuse of discretion, the moving party must demonstrate the decision was
"made without a rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Borough of Englewood Cliffs v.
Trautner, 478 N.J. Super. 426, 437 (App. Div. 2024) (quoting Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).
When a default judgment has been entered, the party seeking to vacate it
"must meet the standard of Rule 4:50-1." Guillaume, 209 N.J. at 467. Rule
4:50-1(d) permits a party to vacate a default judgment by demonstrating the
judgment or order is void. In such cases, the movant has "the overall burden of
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demonstrating that its failure to answer or otherwise appear and defend should
be excused." Jameson v. Great Atl. & Pac. Tea Co., 363 N.J. Super. 419, 425-
26 (App. Div. 2003). A motion brought under this rule "shall be made within a
reasonable time, . . . after the judgment, order[,] or proceeding was entered or
taken." R. 4:50-2.
Here, the trial court denied defendant's motion to vacate the bank levy and
the default judgment because defendant offered no reasonable explanation for
his nearly four and a half years of inaction. Specifically, defendant offered no
explanation for delay in moving to vacate the bank levy or the default judgment
until after the writ of execution was served in October 2018. Instead, defendant
contends that he was not properly served with the 2018 complaint, asserting that
he did not live in Union at the time the complaint or the subsequent notices and
pleadings were served. Defendant argues the judge should have focused on
plaintiff's non-compliance with the court rules and the notices should have been
sent by regular and certified mail but were not. The record, however, does not
support defendant's argument. The regular mail serving the complaint and other
notices were not returned, and the certified mail forwarding those documents
were marked "unclaimed;" thus, service was effective pursuant to Rule 6:2-
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3(d)(4). We are satisfied defendant failed to meet the requisite standard by
providing a factual basis the significant delay in filing the motion to vacate.
Under Rule 4:50-1(f), relief is available only when truly exceptional
circumstances are present and when no other subsection of the rule applies. 257-
261 20th Ave. Realty, LLC v. Roberto, 477 N.J. Super. 339, 367 (App. Div.
2023). As noted above, defendant failed to present a reasonable explanation for
the lengthy delay in moving to vacate the bank levy and the default judgment.
Defendant's renewed argument regarding service of process does not establish
exceptional circumstances under Rule 4:50-1(f) for vacating the default
judgment. Therefore, we reject defendant's arguments as lacking merit. R. 2:11-
3(e)(1)(E).
Affirmed.
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