MARY JO LAMB VS. FLUTURA SAITI AND SAFET SAITI(L-0073-14, BERGEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5174-15T1
MARY JO LAMB,
Plaintiff-Respondent,
v.
FLUTURA SAITI,
Defendant-Respondent,
and
SAFET SAITI,
Defendant-Appellant.
________________________________
Submitted July 5, 2017 – Decided September 22, 2017
Before Judges Nugent and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
0073-14.
Rachel L. Baxter, attorney for appellant.
Perrucci Law Corporation, attorneys for
respondent Mary Jo Lamb (Angelo M. Perrucci,
Jr., on the brief).
PER CURIAM
Defendant Safet Saiti appeals from an order denying his
Rule 4:50 motion for relief from a default judgment. Because it
appears the judgment may have been entered without legal basis,
we vacate the order and remand for reconsideration of whether
defendant should be relieved of the default judgment "upon such
terms as are just." R. 4:50-1.
Plaintiff Mary Jo Lamb filed a complaint alleging she
loaned defendants Flutura Saiti and Safet Saiti, wife and
husband, $75,400 in 2012, as memorialized in a note signed by
Flutura Saiti on August 10, 2013, attached as an exhibit to the
complaint. The note states that "I Flutura Saiti owe Mary Jo
Lamb $56,000.00 from a loan given to me by Mary Jo Lamb in
2012." The note makes no mention of Safet Saiti at all. In
count three of the complaint, plaintiff alleged that "[o]n or
about August 10, 2013 and at times prior thereto, defendants and
each of them represented to plaintiff that they would use their
best efforts to repay plaintiff." She claimed the
representations, on which she relied, were false when made and
that she "would not have made the loan otherwise." Plaintiff
obtained final judgment by default against defendants for a sum
certain pursuant to Rule 4:43-2, based on an unopposed
certification of amount due not included in the record.
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Flutura Saiti moved unsuccessfully to vacate the default
judgment in January 2015. The court denied the motion, finding
Flutura Saiti accepted personal service of the complaint and put
forth no evidence of excusable neglect.
Safet Saiti moved to vacate the default judgment in May
2016, two years after its entry. He claimed he was out of state
when Flutura Saiti accepted service, that he and Flutura Saiti
had been divorced since 2003, although they continued to reside
in the same home, and that he had never met or spoken to
plaintiff and had "never made any agreement verbally or in
writing to pay Plaintiff any sum of money."
Plaintiff opposed the motion, contending Safet Saiti
"waited too long" to file it and that she believed both
defendants were "attempting to perpetrate a fraud" on the court.
Specifically, plaintiff submitted an affidavit in which she
claimed that while defendants "may have had a judgment of
divorce entered in a New York Court in 2003, they continue to
live together as husband and wife." Critically, however,
plaintiff made no response to Safet Saiti's allegations that he
had never met or spoken to plaintiff and never agreed to pay her
any sum of money.
Safet Saiti filed a reply acknowledging that a motion made
for reasons (a), (b) and (c) of Rule 4:50-1 must be made within
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a year of the judgment under Rule 4:50-2, but further noting
that a motion made under the catch-all category of Rule 4:50-
1(f) need only be made "within a reasonable time" pursuant to
Rule 4:50-2. He argued the judgment against him should be
vacated because plaintiff's complaint against him was without
any legal basis.
The same judge who entered the default judgment in 2014,
and denied Flutura Saiti's motion to vacate the default judgment
in 2015, likewise denied Safet Saiti's application. In a
written statement of reasons accompanying the order, the judge
found Safet Saiti had not shown "any mistake, inadvertence,
surprise, excusable neglect or any other reason that would allow
for this motion to be considered by this court" and that the
application was "made two years after the judgment."
We acknowledge that service on Safet Saiti was proper under
Rule 4:4-4(a)(1), and that he failed to put forth any proof of
excusable neglect. But the complaint upon which default
judgment was entered appears on its face to preclude liability
against Safet Saiti. The I.O.U. attached to the complaint
refers only to Flutura Saiti and plaintiff does not claim in her
brief on appeal that she loaned money to Safet Saiti or that he
signed the note on which she sued. Instead, she points to the
count of her complaint saying both defendants promised "on or
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about August 10, 2013 and at times prior thereto" to use their
best efforts to repay the debt. According to plaintiff's
complaint, those representations came after the loan. The note,
which was signed on August 10, 2013, only memorialized the loan
made in 2012. Of course, a representation by one to use his
best efforts to pay a debt he does not owe does not make him
liable for it, absent some consideration plaintiff has not
alleged in the complaint. See Great Falls Bank v. Pardo, 263
N.J. Super. 388, 401 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542(App. Div. 1994).
Because the allegations of the complaint appear
insufficient to establish liability against Safet Saiti, default
judgment against him may have been improvidently granted. See
Douglas v. Harris, 35 N.J. 270, 276-77 (1961); Heimbach v.
Mueller, 229 N.J. Super. 17, 23 (App. Div. 1988); Pressler &
Verniero, Current N.J. Court Rules, comment 2.2.2. on R. 4:43-2
(2017). Under these circumstances, instead of denying the
motion, the court should have considered whether there were just
terms upon which relief from the judgment should have been
allowed. See ATFH Real Prop., LLC v. Winberry Realty P'ship,
417 N.J. Super. 518, 527-28 (App. Div. 2010). Failure to do so
was a mistaken application of discretion. See US Bank Nat'l
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Ass'n v. Guillaume, 209 N.J. 449, 467 (2012), certif. denied,
208 N.J. 337 (2011).
In our view, the provision of Rule 4:50-1 permitting relief
from a final judgment "upon such terms as are just" is designed
for cases such as this. Although plaintiff has not put forth a
prima facie case against Safet Saiti, she has no doubt incurred
costs and been inconvenienced by his failure to have responded
to the complaint. The court can accordingly consider such in
imposing terms designed to relieve plaintiff of any prejudice
attending the vacation of a default judgment improvidently
entered. See Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534,
543 (App. Div. 2003).
We are to construe our Rules "to secure a just
determination, simplicity in procedure, fairness in
administration and the elimination of unjustifiable expense and
delay." R. 1:1-2(a). Doing so here compels us to vacate the
order under review and remand for reconsideration of whether
Safet Saiti should be relieved of the default judgment "upon
such terms as are just." R. 4:50-1.
Vacated and remanded. We do not retain jurisdiction.
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