PORTFOLIO RECOVERY ASSOCIATES, LLC VS. SIRISRI LIWATTANA(DC-013075-15, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-3168-15T1
PORTFOLIO RECOVERY ASSOCIATES,
LLC,
Plaintiff-Respondent,
v.
SIRISRI LIWATTANA,
Defendant-Appellant.
_______________________________________________________
Submitted May 23, 2017 – Decided June 7, 2017
Before Judges Fisher and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Special Civil Part,
Hudson County, Docket No. DC-013075-15.
Sirisri Liwattana, appellant pro se.
Thomas M. Murtha, attorney for respondent.
PER CURIAM
Plaintiff Portfolio Recovery Associates, LLC, commenced this
special civil part action, claiming defendant Sirisri Liwattana
owed $11,423.01 on a book account. The record on appeal is not
entirely clear, but we assume for present purposes the truth of
plaintiff's assertion that defendant's time to respond to the
complaint expired on January 25, 2016. The following day, January
26, 2016, defendant filed a motion to dismiss the complaint. That
motion was not rejected by the clerk's office as an untimely
response to the complaint or because the existing filings might
have suggested defendant was in default; instead, the motion was
placed on a motion calendar and denied on its merits on February
19, 2016.
On February 17, 2016, plaintiff applied for entry of a default
judgment – notwithstanding the pending motion to dismiss that was
denied two days later – suggesting in its application that
defendant had not appeared in the case.1 True, defendant had not
filed an answer, but the pending motion constituted a responsive
pleading. See Midland Funding, LLC v. Albern, 433 N.J. Super. 494,
498-99 (App. Div. 2013).
Plaintiff's application for default judgment and defendant's
motion to dismiss were like ships that pass in the night. Neither
party responded to the other's application. Plaintiff's
1
The application for default judgment did not assert defendant
was actually in default. One of the supporting affidavits, however,
includes statements by plaintiff that: it "believe[d] no defendant
herein is an infant or incompetent person"; the address used for
service of process "is the [d]efendant's current address according
to [p]laintiff's computer records"; and, after "diligent inquiry,"
to plaintiff's knowledge defendant was "not in the military
service." These assertions could have led the clerk to assume
defendant had not appeared in the action.
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application was granted two days before defendant's motion was
denied. There is no indication the motion judge was aware the
clerk had entered a default judgment.
Defendant appeals. He submitted a brief containing nine
separate arguments, including contentions that the judge erred in
denying the unopposed motion to dismiss and the clerk erred in
entering a default judgment when the case was contested. We need
not discuss all defendant's arguments. It is clear that we must
vacate the default judgment, affirm the denial of the motion to
dismiss and remand this contested matter to the trial court.
Our procedural rules favor adjudications on their merits and
not on mere technicalities. See Ragusa v. Lau, 119 N.J. 276, 284
(1990); Handelman v. Handelman, 17 N.J. 1, 10 (1954). As then
Judge (later Justice) Jacobs said for this court in Tumarkin v.
Friedman, 17 N.J. Super. 20, 27 (App. Div. 1951), certif. denied,
9 N.J. 287 (1952), the rules were designed to be "a means to the
end of obtaining just and expeditious determinations between the
parties on the ultimate merits." This sentiment is encapsulated
in Rule 1:1-2(a), which declares that the essential purpose of our
rules is "to secure a just determination, simplicity in procedure,
fairness in administration and the elimination of unjustifiable
expense and delay."
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By the time plaintiff sought a default judgment, defendant
had appeared by filing a responsive pleading in the form of a
motion to dismiss. Defendant's only fault – if there was fault at
all – was in filing the motion to dismiss a day later than required
and, consequently, in failing to seek an extension of time to
respond to the complaint, an application we assume would have been
readily granted. Simple, fundamental fairness barred entry of the
default judgment even if defendant's appearance was a day late.
The February 19, 2016 order denying defendant's motion to
dismiss is affirmed,2 the default judgment of February 17, 2016 is
vacated, and the matter is remanded to the trial court for entry
of an order permitting defendant to file an answer to the complaint
within a fixed time and allowing the matter to proceed as a
contested case if he answers.
Affirmed in part, vacated in part, and remanded. We do not
retain jurisdiction.
2
We find insufficient merit in defendant's arguments regarding
the denial of his motion to dismiss to warrant further discussion
in a written opinion. R. 2:11-3(e)(1)(E).
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