               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0220-19T1

LVNV FUNDING, LLC,
a/p/o, CITIFINANCIAL, INC.,
                                    APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                             June 15, 2020
v.                                      APPELLATE DIVISION

JOSEPH DEANGELO,

     Defendant-Respondent.
__________________________

           Argued telephonically May 19, 2020 –
           Decided June 15, 2020

           Before Judges Fisher, Accurso and Gilson.

           On appeal from the Superior Court of New Jersey, Law
           Division, Gloucester County, Docket No. L-1242-09.

           Stephen M. Orlofsky argued the cause for appellant
           (Blank Rome LLP, attorneys; Stephen M. Orlofsky,
           Michael R. Darbee, and Kenneth L. Bressler, of the
           New York Bar, admitted pro hac vice, on the brief).

           Michael Oliver Kassak argued the cause for respondent
           (White and Williams LLP, attorneys; Michael Oliver
           Kassak, of counsel and on the brief).

     The opinion of the court was delivered by

FISHER, P.J.A.D.
      This appeal – in which plaintiff would have us reverse an order that

vacated a default judgment and dismissed its complaint – presents some unusual

circumstances and conflicting equities.

      Plaintiff filed its complaint to collect a debt in July 2009 and, when

defendant failed to respond, obtained a $29,647.66 default judgment in February

2010. Plaintiff's efforts to collect on its judgment proved unsuccessful; its calls

and letters were ignored, and attempts in March 2010 and September 2012 to

obtain a wage execution failed. Finally, in October 2017, plaintiff was able to

garnish defendant's wages, prompting him to move in 20181 for relief from the

default judgment.

      After discovery and a plenary hearing, the judge determined that

defendant defaulted on the obligation no later than March 2004 when he stopped

making payments, and there is no dispute that the suit was filed in July 2009.

As a result, the judge concluded that plaintiff violated the Fair Debt Collection

Practices Act, 15 U.S.C. §§ 1692 – 1692p, because it failed to commence the

suit "within four years after the cause of action . . . accrued," N.J.S.A. 12A:2-

725(1). The judge, however, also found that defendant's neglect in failing to



1
  Defendant first moved for relief in February 2018; that motion was denied
without prejudice. He moved again, this time with counsel, in September 2018.
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respond to the complaint was inexcusable.         In weighing these conflicting

circumstances, the judge concluded that plaintiff's breach of the Fair Debt

Collection Practices Act outweighed defendant's inexcusable neglect; relying on

Rule 4:50-1(f), the judge granted the motion and dismissed the time-barred

complaint. Finding no abuse of discretion in the judge's choice between these

competing circumstances, we affirm.

      Certain facts relevant to this case are undisputed; other relevant facts were

either unclear or disputed and, as to those, the judge made findings of fact. The

undisputed facts, and those found by the judge after an evidentiary hearing – to

which we are required to defer, Rova Farms Resort, Inc. v. Inv'rs Ins. Co., 65

N.J. 474, 484 (1974) – reveal that in 2001, defendant secured a loan from Auto

One Acceptance Corporation to purchase a Mercedes-Benz.             Believing the

vehicle was defective, defendant stopped making payments soon after. The

record reveals that Auto One and defendant entered into a modification

agreement in December 2003, but there is no evidence that defendant made any

payments in the following months and years. This debt was transferred by Auto

One to CitiFinancial, Inc., and later still, in November 2007, to plaintiff LVNV

Funding, LLC.




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      Plaintiff offered no proof that any payments were made on this debt

between December 2003, when the modification agreement was reached, and

November 2008, when the final payment under the modification agreement was

due.2 Plaintiff asserts that two payments were made in November 2008 and

another attempted in January 2009. Specifically, plaintiff demonstrated that it

sent the matter to a debt collector, Redline Recovery, which allegedly received

from defendant, in November 2008, two $1000 money orders. Plaintiff also

claims a $4000 check was received in January 2009 but returned for insufficient

funds. Plaintiff claims that it could not provide any further or more persuasive

evidence than this because Redline went out of business in 2014.3 Defendant,

however, testified he did not make the 2008 and 2009 payments, and the judge


2
    The modification agreement required that defendant make "59 monthly
installments of $736.51 beginning January 04, 2004, and continuing until
November 04, 2008, when the final payment will be due." The agreement also
stated that "[t]he final payment" due in November 2008 will include any unpaid
principal balance and accrued interest "not yet paid as of such date together with
any other sums then payable under the [c]ontract or this agreement."
3
  Plaintiff alludes to Redline's demise as an event that somehow excuses it from
presenting better proof of the loan's payment history. But it is obvious from the
circumstances presented that the owner of the claim remained intent on
collecting on this debt since the time of the default and, for that reason alone,
had an interest in retaining all relevant records. That defendant may have slept
on his rights while plaintiff or its predecessors engaged in formal and informal
attempts to collect does not form a foundation for plaintiff's current clai m that
defendant's delay caused it prejudice.
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found him credible on this point. 4 As a result, the judge concluded that: (1)

defendant defaulted on the loan obligation no later than March 2004; (2) even if

made by defendant, the November 2008 payments did not cure the default,

Midland Funding LLC v. Thiel, 446 N.J. Super. 537, 548 (App. Div. 2016)

(holding that a default arises on "the first date on which the debtor fails to make

a minimum payment" and that subsequent "partial payments less than the

minimum payment required after the date of default does not change the date of

default, and thus does not change the date on which the cause of action

accrued")5; and (3) the statute of limitations had already run on plaintiff's claim

when the complaint was filed on July 13, 2009.          We defer to the judge's

resolution of these factual disputes.




4
    In his opinion, the judge stated that "[d]espite major issues with the
[d]efendant's credibility in some areas, in others" he found him "believable."
The judge "found his testimony regarding the 2008 and 2009 alleged payments
to be credible" and found "incredible that the [d]efendant would use a money
order to make a payment," an action "not consistent with any behavior of the
[d]efendant." These are findings to which we must defer.
5
   As already observed, the modification agreement required the entire loan
obligation to paid off in November 2008 when the two $1000 payments were
made. Since plaintiff later sought and obtained a $29,647.66 default judgment
in 2010, it cannot be seriously argued that these November 2008 $1000
payments – made when defendant owed far more – constituted anything but a
partial payment that could not extend the action's accrual date.
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      The record also contained evidence that many calls and letters were sent

to defendant regarding this debt over the years 6 and that, when suit was filed,

plaintiff was able to effect service of process on defendant at his home,7 and

defendant thereafter did nothing about the judgment until moving for relief

under Rule 4:50 more than eight years after the judgment's entry. The judge

found defendant's inactivity to be inexcusable.       We defer to these factual

findings as well. To be sure, the facts were disputed, and reasonable minds

could differ about the evidence and the credibility of the testimony. But our

obligation is not to "engage in an independent assessment of the evidence as if

[we] were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999).

We may not disturb judge-made fact findings "unless . . . convinced they are so

manifestly unsupported by or inconsistent with the competent, relevant and

reasonably credible evidence as to offend the interests of justice." Rova Farms,

65 N.J. at 484.




6
  For example, the judge found that defendant received communications from
plaintiff and, in fact, responded to plaintiff in June 2010 by pretending to be
someone other than himself.
7
  The judge heard testimony from a sheriff's officer and from defendant and
concluded that the sheriff's office had properly served defendant in 2009.
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      And, so, with these findings, the motion judge was faced with the question

of what to do about, on the one hand, plaintiff having obtained a default

judgment by violating the Fair Debt Collection Practices Act in bringing suit on

a time-barred claim on a debt defendant does not deny and, on the other,

defendant's inexcusable disregard of the default judgment for years. In weighing

these circumstances, we cannot lose sight that a court's power to vacate a

judgment is based on equitable principles. Hodgson v. Applegate, 31 N.J. 29,

37 (1959). Courts must often choose the weightier of two competing equitable

rights; at times they may even have to choose the least blameworthy of two

competing wrongs. This case seems to fall in the latter category.

      The judge found plaintiff acted in violation of federal law by suing on a

time-barred claim, but also that defendant inexcusably ignored a judgment on

that time-barred claim – he waited eight years and lied about his identity – before

seeking relief. The judge applied subsection (f) of Rule 4:50-1, the so-called

catchall provision, which permits relief in "exceptional situations." US Bank

Nat'l Ass'n v. Guillaume, 209 N.J. 449, 484 (2012); Baumann v. Marinaro, 95

N.J. 380, 395 (1984). The Supreme Court has determined that this subsection

permits relief even when a defendant's response or failure to respond to a

complaint was found, as here, to be inexcusable. Mancini v. Eds ex rel. N.J.


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Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 334 (1993). In such instances,

subsection (f)'s boundaries are "as expansive as the need to achieve equity and

justice." Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1977). Faced with such an

application, a court's obligation is "to reconcile the strong interests in finality of

judgments and judicial efficiency with the equitable notion that courts should

have authority to avoid an unjust result in any given case." Manning Eng'g, Inc.

v. Hudson Cty. Park Comm'n, 74 N.J. 113, 120 (1977).

      Mancini provides the applicable framework, though there are factual

differences.   For instance, in Mancini, the defendant's neglect was found

inexcusable but "neither willful nor calculated." 132 N.J. at 336. The judge

here found defendant's neglect inexcusable and calculated, as demonstrated, for

example, by his mendacity about his identity. But plaintiff, too, was found to

have acted in bad faith by commencing this suit in the face of the time-bar. This

is revealed by the judge's rejection of plaintiff's attempt to excuse the late filing;

plaintiff's former attorney testified he believed the statute of limitations had not

expired because of the November 2008 payments but the judge found this

testimony was "not credible."

      Despite the problematic conduct and motivation of both parties, the judge

ultimately viewed the decision as turning not on which of the parties acted worse


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                                          8
but on the weight of the competing public policies. On defendant's side was

plaintiff's commencement of a time-barred claim in violation of federal policy,

which strongly favors the curbing of "abusive debt collection practices." 15

U.S.C. § 1692(a). The countervailing state policy urged by plaintiff is what the

Supreme Court referred to as "the strong interests in finality of judgments and

judicial efficiency." Baumann, 95 N.J. at 392; see also Mancini, 132 N.J. at 334.

Both these policies cannot be served here; one must give way to the other. The

judge determined that the interest in curbing abusive collection practices

outweighed the interest in the finality of judgments. In the final analysis, we

cannot conclude that the choice the judge made constitutes an abuse of the

discretion provided by Rule 4:50-1(f).

      Affirmed.




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