                    NOT FOR PUBLICATION WITHOUT THE
                   APPROVAL OF THE APPELLATE DIVISION

                                               SUPERIOR COURT OF NEW JERSEY
                                               APPELLATE DIVISION
                                               DOCKET NO. A-0562-12T4

MIDLAND FUNDING LLC,
                                                    APPROVED FOR PUBLICATION
            Plaintiff-Respondent,
                                                         December 23, 2013
    v.
                                                         APPELLATE DIVISION

CARL ALBERN, JR.,

            Defendant-Appellant.

_________________________________________________________

            Submitted December 3, 2013 – Decided December 23, 2013

            Before Judges Fisher, Espinosa and Koblitz.

            On appeal from the Superior Court of New
            Jersey,   Law  Division, Monmouth County,
            Docket No. L-2833-11.

            Carl Albern Jr., appellant pro se.

            Pressler and Pressler, L.L.P., attorneys for
            respondent (Lawrence J. McDermott, Jr., on
            the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    This     appeal      presents     a     procedural         question:          is     a

defendant,      who,   in   responding         to    a     complaint,        moved     for

dismissal    but   did   not   file    an      answer      after      the    motion    was

denied, entitled to notice of a plaintiff's request for default?

Because   the    applicable    rules      of    procedure        do    not    expressly
authorize   an     ex    parte   request      for     default   in   this      unusual

circumstance,      and    because   the       rules    are   based   on    a    policy

favoring the disposition of cases on their merits, we reverse

the denial of defendant's Rule 4:50 motion to vacate both the

default and the default judgment later entered.


                                          I

      On June 15, 2011, plaintiff Midland Funding LLC commenced

this action against defendant Carl Albern, Jr., on an alleged

outstanding   credit      card    account.          The   summons    contained       the

customary admonition that defendant was required to answer or

otherwise move within the time allotted or default would be

entered against him.        Defendant timely responded by filing a pro

se motion to dismiss, which was denied on October 6, 2011.                           The

judge's order did not specify a time within which defendant was

required to file an answer nor did it refer to defendant's need

to file an answer.          Rule 4:6-1(b) allots ten days to file an

answer after denial of a motion to dismiss.                     Defendant did not

file an answer within that time period.

      On December 1, 2011, plaintiff submitted to the Clerk an ex

parte application for entry of default, claiming "no defendant

named   herein      has     answered      or     otherwise       moved."           This

representation was incorrect because, as mentioned, defendant

had   "otherwise    moved,"      albeit    unsuccessfully.           Plaintiff       did



                                          2                                    A-0562-12T4
correctly assert that defendant had not filed an answer and the

time   to      do     so   had    expired.           Default         was    entered     against

defendant in early December 2011.1

       Although not included in either party's appendix, we are

told plaintiff applied for the Clerk's entry of default judgment

on March 15, 2012.            Whatever plaintiff submitted at the time was

apparently          also   served       on   defendant,         who        quickly   submitted

written opposition to the Clerk on March 19, 2012, claiming: he

had not been served with an application to enter default; he had

"filed    an    answer       in   the    form       of    a   motion       to   dismiss";     and

plaintiff       did    not   have   standing             to   sue.     The      Clerk   entered

default judgment against defendant in the amount of $19,366.77,

with costs taxed in the amount of $269.12, on March 21, 2012.

We assume the Clerk did not consider – perhaps she did not

receive     –       defendant's     written          response        because      defendant's

opposition was not mentioned in the judgment and because the

normal course, upon receipt of opposition, would have required

the Clerk to refer the matter to the court for disposition.

       On May 14, 2012, shortly after plaintiff sought discovery

of defendant's assets, defendant moved for relief pursuant to


1
 The copy of the pleading contained in the appendix is only
partially legible and does not reveal the date default was
entered. The judge's August 6, 2012 written opinion notes that
default was entered on December 6, 2011.



                                                3                                       A-0562-12T4
Rule 4:50-1.         The trial judge denied this motion for reasons set

forth in a written opinion, concluding that defendant had not

shown his failure to file an answer was excusable because he

should have understood his earlier unsuccessful motion would not

be    viewed    as    an    answer.      The    judge   also   determined    that

defendant failed to present a meritorious defense, finding the

allegation of plaintiff's lack of standing insufficient in this

regard.2


                                         II

       In this pro se appeal, defendant argues: (1) an ex parte

application for entry of default in these circumstances was not

permitted; (2) he was wrongfully denied oral argument on the

return date of his Rule 4:50-1 motion; (3) the trial judge held

him   "to   a   more       stringent   standard"   than   plaintiff;   and    (4)

plaintiff "has provided no credible evidence that [it] ha[d]

standing to file this action."                Because we agree plaintiff was

not entitled to apply for default without notifying defendant

and because defendant presented a meritorious defense – even

though he was not obligated to do so under these circumstances –




2
 That is, we discern from the record that the judge did not
reject the standing argument on its merits, but only held that
it did not constitute an adequate defense to plaintiff's claim.



                                          4                            A-0562-12T4
we    reverse     without        considering        defendant's        second      and   third

points.


                                               A

       Although        the    trial    judge       couched     defendant's         motion    as

resting on the excusable-neglect provision in Rule 4:50-1(a),

the   essence      of      the   motion     was     that      plaintiff      had   proceeded

improperly in seeking default.                         Accordingly, the motion more

logically rested on the void-judgment provision in Rule 4:50-

1(d).3      We thus look to the procedure adopted by plaintiff in

seeking defendant's default.

       Default       was     sought    on   the     basis      of    Rule    4:43-1,     which

allows a plaintiff to make an ex parte request of the Clerk for

default     if    the      defendant    "has       failed      to    plead    or   otherwise

defend as provided by these rules or court order, or if the

answer has been stricken with prejudice."                           Defendant fit neither

of    these      two    descriptions.             He    had    "otherwise       defend[ed]"

because he had moved for dismissal, and he was not "a party . .

. [whose] answer ha[d] been stricken with prejudice" because he

had not filed an answer.               Defendant's peculiar status as a party

who   had     once     defended       but   did     not    answer      is    not   expressly

3
 Regardless of those provisions upon which defendant expressly
based his motion, the court was required to apply those that
were actually implicated by the motion. Baumann v. Marinaro, 95
N.J. 380, 390 (1984).



                                               5                                     A-0562-12T4
encompassed by Rule 4:43-1.4            Because that rule delineates all

the   circumstances     upon    which       an    ex   parte   default   may     be

requested, it stands to reason that plaintiff was required to

request default by motion on notice to defendant.

      Our procedural rules were designed to be "a means to the

end of obtaining just and expeditious determinations between the

parties on the ultimate merits," Ragusa v. Lau, 119 N.J. 276,

284 (1990) (quoting Tumarkin v. Friedman, 17 N.J. Super. 20, 27

(App. Div. 1951), certif. denied, 9 N.J. 287 (1952)), a policy

that requires rejection of plaintiff's invitation to interpret

Rule 4:43-1 broadly.      The absence of express authority in Rule

4:43-1, in light of the "strong preference for adjudication on

the   merits   rather    than     final          disposition   for   procedural

reasons," Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 356

(2001) (quoting Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J.

Super. 198, 207 (App. Div. 2000)), demands that the unauthorized

ex parte default – and the subsequent judgment based on that

default – be vacated and that defendant be given an opportunity

to file an answer and defend against plaintiff's claim.




4
 Whether we have properly interpreted the breadth of Rule 4:43-1
is a matter which the Supreme Court's Civil Practice Committee
may wish to consider.



                                        6                                A-0562-12T4
                                            B

       We further observe that defendant took the position his

motion constituted an answer to the complaint.                      The trial judge

held     that     defendant's        assumption         was   not      reasonable    or

excusable; defendant could not, in the judge's view, reasonably

believe    his    motion     constituted        an   answer     mainly    because   the

motion was denied.            We conclude that the judge too strictly

interpreted defendant's actions and his reasonable expectations

in the aftermath of the denial of the motion to dismiss.

       The motion to dismiss asserted plaintiff lacked standing to

sue, and the judge – in denying that motion – certainly never

ruled on the merits of the standing question.                            Instead, the

judge first wrote in the margin of the order that "the complaint

on   its   face    sets     forth   a     cause   of    action   and     [d]efendant's

motion must thus be denied."                 The second and last sentence of

this     handwritten      decision        requires      closer    analysis.         That

sentence referred to the rejected text of defendant's proposed

order, which sought from plaintiff, among other things, "the

actual     contract    of    assignment,"         the   contract    upon    which   the

claim was based, and "the original creditor[']s last billing

statement."        In the second and last sentence of the judge's

written disposition of the motion to dismiss, she concluded:

"Defendant       may   receive      the    documents     upon    which     [p]laintiff




                                            7                                 A-0562-12T4
relies   in     this    matter    in       discovery,   upon    request      by

[d]efendant."

      Although an attorney would understand, upon denial of the

dismissal motion, that defendant was still required to file an

answer and any affirmative defenses, it was not unreasonable for

this pro se defendant to assume nothing further was required of

him in light of the judge's ruling on standing, and it was not

unreasonable for defendant to assume from the order that the

parties would thereafter engage in discovery.5                 See Rubin v.

Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982) (recognizing

that, although pro se litigants are not entitled to greater

rights than represented litigants, due process principles permit

the imposition of a procedural bar only after consideration of

the pro se litigant's "reasonabl[e] expect[ations]" about what

had   occurred).       This   circumstance     formed   a   sound   basis   for

relief pursuant to the excusable-neglect provision in Rule 4:50-

1(a). In short, the judge was required but failed to liberally

indulge defendant's assertions "to the end that a just result is

reached."     Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319

(App. Div.), aff’d, 43 N.J. 508 (1964); see also Mancini v. EDS




5
 The order denying the motion to dismiss neither directed the
filing of an answer nor set forth a deadline for that filing.



                                       8                              A-0562-12T4
ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330,

334 (1993).


                               C

    The trial judge also denied defendant's Rule 4:50-1 motion

because she determined defendant had not presented a meritorious

defense.   In seeking relief from a void judgment, however, a

movant is not required to demonstrate a meritorious defense.

See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108 S.

Ct. 896, 899-900, 99 L. Ed. 2d 75, 81-82 (1988); City of Passaic

v. Shennett, 390 N.J. Super. 475, 486 (App. Div. 2007).       But,

even if we were   to conclude otherwise, defendant's claim       of

plaintiff's lack of standing constituted a legitimate defense to

the claim asserted in plaintiff's complaint.


                              III

    For these reasons, we reverse the order denying defendant's

motion to vacate the default and the default judgment, and we

remand for entry of an order providing defendant with a fair and

adequate time to file an answer to the complaint.

    Reversed and remanded.   We do not retain jurisdiction.




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