                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2345-12T1



THE RIDGE AT BACK BROOK, LLC,        APPROVED FOR PUBLICATION

         Plaintiff-Respondent,           August 12, 2014

    v.                                 APPELLATE DIVISION


W. THOMAS KLENERT,

          Defendant-Appellant.
_____________________________________________________________

         Submitted July 8, 2014 - Decided August 12, 2014

         Before Judges Fisher, Grall and Messano.

         On appeal from the Superior Court of New
         Jersey, Law Division, Hunterdon County,
         Docket No. L-611-10.

         Steven D. Janel, attorney for appellant.

         Wilentz, Goldman & Spitzer P.A., attorneys
         for   respondent  (Robert  L. Selvers,  of
         counsel and on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    Having carefully considered this appeal of an order denying

Rule 4:50 relief, we conclude that the trial judge should have

more liberally indulged the argument that his pro se status

warranted a further opportunity for defendant – once he retained
counsel    after     entry   of   final    judgment    –   to   argue    that   the

contract    upon     which    the   suit      is   based   is   unconscionable.

Accordingly, we vacate the order denying Rule 4:50 relief and

remand the matter for further proceedings.


                                          I

    The Ridge at Back Brook, L.L.C. (plaintiff), a New Jersey

limited liability company which owns and operates an eighteen-

hole golf course in Ringoes, filed a complaint against defendant

W. Thomas Klenert, one of its members, on September 17, 2010.

Plaintiff alleged that, by becoming a member, defendant became

obligated to timely pay dues and something labeled "Option B"

payments.     In its complaint, plaintiff asserted that defendant

defaulted on these financial obligations in 2004 and, by the

time the complaint was filed nearly six years later, defendant

owed $77,490 in dues and $10,800 in Option B payments, as well

as sales tax and finance charges, for a total obligation of

$160,214.40.       Defendant, appearing on his own behalf, filed an

answer     denying    the    material      allegations     of   the     complaint.

Thereafter, plaintiff served requests for admissions, pursuant

to Rule 4:22, seeking defendant's admission of essentially every

material    aspect     of    plaintiff's      claim.       Defendant     did    not

respond.




                                          2                               A-2345-12T1
       Relying on the admissions generated by defendant's failure

to    respond   to    the    Rule     4:22       requests,    as    well     as    by   the

certification of plaintiff's managing member, plaintiff moved

for   summary    judgment.           Prior       to   the   motion's       return    date,

defendant filed a petition in the United States Bankruptcy Court

for the District of New Jersey.                  The summary judgment motion was

nevertheless granted on April 1, 2011.

       Plaintiff recognized the order granting summary judgment

was     ineffectual         because       defendant's         bankruptcy          petition

triggered the automatic stay provision contained in 11 U.S.C.A.

§ 362.     Following the dismissal of the bankruptcy petition on

March 21, 2012, plaintiff moved to vacate the April 1, 2011

order    granting     summary       judgment      but   moved      again    for    summary

judgment based on the Rule 4:22 admissions, the facts previously

asserted in support of its original motion, and a certification

explaining how the amount due from defendant had increased to

$253,456.01.         In a short pro se pleading, defendant cursorily

argued that the membership agreement was a contract of adhesion

and its terms unconscionable.

       On June 15, 2012, the trial judge entered an order that:

vacated the earlier summary judgment, which was precipitously

granted   in    violation      of    11   U.S.C.A.      §    362;    granted      the   new

summary judgment motion for the full amount sought; and provided




                                             3                                    A-2345-12T1
that attorneys' fees would be permitted once a certification of

services was submitted.

      In   his   written    decision,         the    trial    judge      explained   the

basis for his ruling.            He relied on the fact that defendant had

failed to respond to plaintiff's Rule 4:22 requests, deeming

those assertions to be admitted.                     The judge recognized that

defendant    had    asserted      that    the       membership     agreement       was   a

contract    of   adhesion    and       unconscionable        but   that    defendant's

brief   written     response      to    the    renewed       summary     judgment    was

insufficient to demonstrate the existence of a genuine issue of

material fact.      That is, the judge determined that defendant had

not provided facts or a further explanation of his view of the

contract,1 nor did he contest the amount claimed to be due.                              On

April 20, 2012, the judge awarded plaintiff $8000 in counsel

fees and entered final judgment in the amount of $261,456.01.

      Plaintiff immediately sought to collect on the judgment,

and   obtained     an    order    permitting        defendant's       deposition      for

purposes of identifying available assets; plaintiff also served

an    information       subpoena.        Shortly       before      the    August     2012


1
 In  this   regard,   the   judge  stated  in   full:  "In  his
[c]ertification, defendant states that the contract he entered
into with plaintiff is unconscionable and a contract of
adhesion. . . . However, defendant provides absolutely no basis
for such contention."     We agree with the judge's view of the
defendant's opposition.



                                           4                                   A-2345-12T1
deposition,         counsel      appeared       for     defendant         and    advised    of

defendant's intent to move for relief from the summary judgment

pursuant to Rule 4:50.                  Consequently, plaintiff adjourned the

deposition but soon thereafter moved for an order compelling

defendant's         response       to     the        information         subpoena;        those

responses were provided a few days prior to the motion's return

date.

       In     November    2012,    defendant          moved,       through      counsel,    for

relief pursuant to Rule 4:50.                   In his supporting certification,

defendant asserted that he became a member of the golf club in

1999    by    providing      a   $45,000    deposit       and       by    signing    all   the

documents plaintiff required.                   He also asserted that the club

did not open until 2002; that year he paid $7500 in dues.                                    In

2003 he paid $10,000, and in 2004 he paid $13,500.                                  Defendant

claimed he later learned his dues "were improperly utilized for

capital       and    debt     service,      contrary          to    the    terms     of    the

membership agreement, which provided it was to be utilized, if

at     all,    exclusively        for    operational          expenses."            Defendant

asserted that plaintiff took this course because "the project

was    millions      of     dollars     over        budget"    even      though     plaintiff

"affirmatively advised" at the contract's formation that "there

was no debt and construction was within budget."




                                                5                                    A-2345-12T1
    Defendant additionally claimed in support of his Rule 4:50

motion that:

         Eventually, I came to learn that the project
         was millions of dollars over budget, and it
         would be the members who would bear the same
         through   extra  costs   and   expenses  not
         disclosed or anticipated at the time in
         which the membership agreement was entered
         into.

         More specifically, all existing members were
         forced to either (1) loan money to the
         [p]laintiff to finance the construction of
         the club house; or (2) pay an extra
         $2,400.00   per    year   to   finance   the
         construction.   Again, this was contrary to
         my understanding of the agreement entered
         into and the representations made.

         Although the club opened for play in July
         2002, the promised clubhouse and cart barn
         were not constructed. The clubhouse was not
         opened until June 2004. Moreover, the short
         game area was not completed at the time of
         my resignation, nor was the cart barn. This
         was contrary to the original representa-
         tions.

         Additionally, the various membership rules
         continued to change through my tenure as a
         member, in ways which were not anticipated
         nor disclosed when I entered into the
         membership agreement. Apparently, the rules
         and by-laws allowed the [p]laintiff to make
         whatever changes they deemed appropriate
         regarding membership rights.     However, a
         member had absolutely no redress regarding
         these rule changes, as there was no absolute
         right to resign from the club.

         From the date of my resignation in 2004
         through service of the instant [c]omplaint
         in November 2010, I never received any
         demand for payment, notice that I was



                              6                         A-2345-12T1
           allegedly   in   breach   of  the  membership
           agreement,     or     any    other    dunning
           correspondence.    I did occasionally receive
           bills for dues, but never gave them much
           thought as I had resigned without objection
           from [p]laintiff.

      In addressing his failure to make better his case that the

matter was not ripe for summary judgment, defendant asserted

that when served with the complaint he "was in a very stressful

financial condition, and could not afford to retain counsel."

He explained that he attempted to represent himself "as best as

[he] could," and he acknowledged that he "clearly did not meet

the   requirements   set    forth    in   the    Court   Rules."      Defendant

further asserted that he misunderstood his obligation to timely

respond to plaintiff's Rule 4:22 request for admissions.

      Defendant   also     claimed   that   the    defenses      he   raised   in

opposition   to   summary    judgment,      as   more    fully   explained      in

support of his Rule 4:50 motion, were found to have credence –

or at least enough substance to avoid summary disposition – in

litigation commenced by other club members in other courts.                    And

he claimed that even if he could be found liable, the amount due

had been improperly calculated.

      The trial judge denied the Rule 4:50 motion on December 21,

2012.   In his written decision, the judge rejected defendant's

unconscionability argument on its merits, but without reference

to legal authorities, stating:



                                      7                                 A-2345-12T1
               [D]efendant cannot assert the contract was
               unconscionable simply because years later,
               he is dissatisfied with the terms and is
               belatedly seeking to stop collection of this
               [c]ourt's judgment. Defendant was within his
               full   rights  to   seek   membership  at     a
               different golf club with different terms in
               the membership agreement. Instead, defendant
               willfully entered into an agreement with
               plaintiff and now, after he has resigned
               from membership in violation of the [a]gree-
               ment, asserts the terms are unconscionable.
               This is not a sufficient basis to set aside
               a[n] [o]rder of [f]inal [j]udgment.        This
               [c]ourt declines to rewrite a contract
               freely entered into by both parites simply
               because defendant has now fully appreciated
               the effect of [a] clause that was unam-
               biguously included in his agreement at the
               time he entered into it.       Moreover, the
               [c]ourt has previously addressed this issue
               and has found the contract to be valid.[2]

The     judge    also     found    that    defendant,      despite       being     self-

represented up to and through the entry of final judgment, had

sufficient opportunity to dispute the allegations upon which the

judgment was based.          And the judge determined that defendant had

not   moved     for     relief    from    the   judgment   within        a   reasonable

period     of     time,     concluding          there   were       "no       exceptional

circumstances supplied by defendant that justify vacating a six-

month    old     summary    judgment       decision,    and    a    four-month        old

[o]rder of [f]inal [j]udgment."                 The judge lastly took note of




2
 The judge then referred to a decision he rendered in another
member's lawsuit with the golf club.



                                            8                                   A-2345-12T1
the troubles to which plaintiff was put during defendant's delay

in seeking relief from the judgment.


                               II

    On January 30, 2013, defendant filed a notice of appeal

that identified only the December 12, 2012 order – which denied

his Rule 4:50 motion – as the order defendant would have us

review.   In his merits brief, however, defendant includes an

argument that the trial judge erred in granting summary judgment

eight months earlier.   Even if we were to ignore defendant's

failure to identify the earlier order in his notice of appeal, 3

and even if we were to assume the earlier summary judgment may

be directly appealed at this late date,4 we would reject this


3
 Rule 2:5-1(f)(3)(A) declares that, in civil actions, the notice
of appeal "shall designate the judgment, decision, . . . or part
thereof appealed from." We have recognized that the failure to
comply with this rule permits our refusal to consider its
merits. See, e.g., Sikes v. Twp. of Rockaway, 269 N.J. Super.
463, 465-66 (App. Div.), aff’d o.b., 138 N.J. 41 (1994).      We
have, however, in appropriate circumstances, overlooked a
party's failure to designate an order in the notice of appeal.
See N. Jersey Neuro. Assoc. v. Clarendon Nat'l Ins. Co., 401
N.J. Super. 186, 196 (App. Div. 2008).
4
 Appeals must be filed within forty-five days of entry of final
judgment. R. 2:4-1(a). This period may be extended for thirty
days "on a showing of good cause and the absence of prejudice."
R. 2:4-4(a). Here, the notice of appeal was filed eight months
after entry of the April 20, 2012 final judgment and, thus,
untimely even if an extension were permissible.      "Where the
appeal is untimely, the Appellate Division has no jurisdiction
to decide the merits of the appeal."      In re Hill, 241 N.J.
                                                    (continued)


                               9                        A-2345-12T1
argument.       Defendant    only   factually   responded     to   plaintiff's

summary judgment motion by providing conclusory claims that the

membership      agreement    was    unconscionable      and   constituted      a

contract of adhesion.        He never explained why.5         Bald assertions

are     not   capable   of   either   supporting   or    defeating     summary

judgment.      See Puder v. Buechel, 183 N.J. 428, 440-41 (2005);



(continued)
Super. 367, 372 (App. Div. 1990); see also Alberti v. Civil
Service Com., 41 N.J. 147, 154 (1963); In re Pfizer, 6 N.J. 233,
237-38 (1951).
5
    Defendant's written opposition states in its entirety:

              Defendant asks that the court reinstate the
              complaint and list for trial. The com-
              plain[t]   was   stayed    because   of  the
              bankruptcy filing.    The defendant did not
              comply with the time tables because of the
              pending bankruptcy.     The bankruptcy being
              dismissed leaves me the defendant in a
              position where I wish to oppose the com-
              plaint and the summary judgment.

              The basis for the opposition is the UNCON-
              SCIONABLE nature of the contract.       The
              contract is a contract of [a]dhesion and
              therefor[e] should have reasonable expecta-
              tions.

              The denying of the plaintiff's motion in no
              way inhibits them from bringing a new motion
              or reinstatement of the old motion to pursue
              the damages they seek. Whereas granting the
              [p]laintiff's motion does not allow defen-
              dant his day in court.

              I ask with respect that the [p]laintiff's
              motion be denied.



                                      10                              A-2345-12T1
Cortez v. Gindhart, 435 N.J. Super. 589, 606 (App. Div. 2014);

Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App.

Div. 1999).

       We,   thus,     reject     the   argument       that       the     judge   erred      in

granting summary judgment.


                                          III

       The heart of defendant's appeal lies in the argument that

an    impecunious      pro   se    litigant,         without      the      wherewithal       to

understand       the    requirements          of     the     rules        governing    civil

practice, may be relieved of the consequences of that failure.

       We agree that Rule 4:50-1(f), which permits relief from

orders or judgments for reasons not provided in the rule's other

subsections, allows for relief in circumstances such as this.

Our courts have long adhered to the view that subsection (f)'s

boundaries "are as expansive as the need to achieve equity and

justice."        Court   Invest.        Co.    v.    Perillo,        48    N.J.   334,    341

(1966); see also US Bank Nat. Ass'n v. Guillaume, 209 N.J. 449,

484 (2012); Housing Auth. of Town of Morristown v. Little, 135

N.J. 274, 286 (1994); In re Estate of Thomas, 431 N.J. Super.

22, 34 (App. Div. 2013); Parker v. Marcus, 281 N.J. Super. 589,

593   (App.   Div.     1995),     certif.          denied,    143      N.J.   324     (1996).

Judge    Havey    explained       for    this       court     –   in      holding     that    a

litigant may, in appropriate circumstances, be relieved of the



                                              11                                    A-2345-12T1
consequences of his attorney's negligence in the conduct of a

case – that the application of the rule turns on the timeliness

of   the   relief   sought,    the   reasons    for    the   movant's    earlier

failure to comport with the rules, the movant's degree of fault

or blamelessness as opposed to his attorney's fault or blame,

and the prejudice that would accrue to the other party if relief

were granted.       Ibid.   Appropriate applications of these factors

have excused litigants from the negligence of their attorneys in

failing to answer interrogatories or other discovery requests.

See, e.g., Jansson v. Fairleigh Dickinson Univ., 198 N.J. Super.

190, 195-96 (App. Div. 1985).

      We find this approach equally applicable where a party has

negligently represented himself.             To be sure, we do not mean to

suggest a self-represented party is entitled to a second chance

in all instances – far from it.              We merely hold that a pro se

litigant    is   entitled     to   nothing    less    than   that   to   which    a

litigant is entitled when represented by a negligent attorney.

That is, as we held in Rubin v. Rubin, 188 N.J. Super. 155, 159

(App. Div. 1982), pro se litigants are not entitled to greater

rights than litigants who are represented by counsel.                     But we

also recognized in Rubin – in concluding that a self-represented

litigant was deprived of a meaningful opportunity to be heard

due to a lack of understanding of motion practice – that it is




                                       12                                A-2345-12T1
"fundamental that the court system . . . protect the procedural

rights of all litigants and to accord procedural due process to

all litigants."       Ibid.    See also Midland Funding LLC v. Alfano,

433 N.J. Super. 494, 500-01 (App. Div. 2013).

       Here, in seeking relief from the summary judgment entered

against him, defendant asserted            he could not then afford an

attorney and that, in attempting to represent himself, he did

not understand the consequences of his failure to respond to

plaintiff's requests for admissions or what he was required to

submit in order to defeat a motion for summary judgment.                        Had

defendant been represented by an attorney whose same acts or

omissions led to the same result, the guidelines provided in

cases such as Parker would have authorized the granting of Rule

4:50   relief.    We     think    defendant      is    entitled     to   the   same

consideration.

       To say that the rule authorized relief, however, does not

mean that relief should be granted.                   We simply remand for a

consideration    of    these     principles      in    light   of    defendant's

assertions in his Rule 4:50 motion.              The judge appears to have

denied the motion solely because he was satisfied that defendant

had a prior opportunity to respond to the ultimately successful

summary   judgment    motion.      This    was    insufficient       because    the

judge did not consider why defendant had so failed and whether




                                      13                                  A-2345-12T1
principles    of     fairness   and        equity      permit   relief      from     the

consequences.        Defendant was entitled to have his                   Rule 4:50

motion    examined    in    light     of        the   factors    outlined      in    the

authorities discussed above.          We, thus, remand for that purpose.


                                           IV

     On remand, the judge should consider defendant's assertions

regarding his earlier failures in the litigation.                      As to one of

the applicable factors – the timeliness of the Rule 4:50 motion

– we reject the judge's conclusion that defendant's delay was

unreasonable.        Indeed,    that        delay      paled    in   comparison       to

plaintiff's long delay in commencing the action.                       And we would

note in this regard that in many cases – and this may be one –

the prejudice incurred by the opposing party may be redressed in

ways other than the denial of the motion; Rule 4:50-1 authorizes

the granting of relief "upon such terms as are just."                       See ATFH

Real Prop. v. Winberry Rlty., 417 N.J. Super. 518, 527-29 (App.

Div. 2010), certif. denied, 208 N.J. 337 (2011).6

     We   would    lastly    observe       that       the   trial    judge's    ruling

appears to be based in part on his determination that there was


6
 In considering the imposition of just terms, the judge must be
mindful that the terms authorized by Rule 4:50-1 are not "to
punish or sanction" but to ameliorate the prejudice to the other
party resulting from the granting of relief.     Regional Constr.
Corp. v. Ray, 364 N.J. Super. 534, 543 (App. Div. 2003).



                                           14                                  A-2345-12T1
no    merit    in     defendant's      contention        that    the    contract      was

unconscionable.             Certainly,      if    that    were    so,    the    judge's

disposition would have been correct; the granting of Rule 4:50

relief would be a futile exercise if plaintiff remained entitled

to judgment as a matter of law.                  See US Bank Nat'l Ass'n, supra,

209   N.J.     at   469     (observing,      in     quoting      from    Schulwitz      v.

Shuster, 27 N.J. Super. 554, 561 (App. Div. 1953), that "[i]t

would create a rather anomalous situation if a judgment were to

be vacated . . . only to discover later that the defendant had

no    meritorious      defense").           But    –     once    defendant      provided

substance to his earlier conclusory claims – the judge never

examined the parties' contentions in light of applicable legal

principles.         Indeed, the judge largely relied on his earlier

holding.        The     worth     of   defendant's        contentions        should     be

examined in light of two factors:                  procedural unconscionability,

which   "can    include       a   variety    of    inadequacies,        such    as    age,

literacy,      lack    of    sophistication,           hidden    or    unduly   complex

contract terms, bargaining tactics, and the particular setting

existing during the contract formation process," and substantive

unconscionability, which generally involves harsh or unfair one-

sided terms.          See Sitogum Holdings, Inc. v. Ropes, 352 N.J.

Super. 555, 564-66 (Ch. Div. 2002) (quoted with approval in

Muhammad v. Cnty. Bank, Rehoboth Beach, 189 N.J. 1, 15 (2006),




                                            15                                  A-2345-12T1
cert. denied, 549 U.S. 1338, 127 S. Ct. 2032, 167 L. Ed. 2d 763

(2007)).    These two factors do not "have equal effect but work

together,       creating   a    'sliding         scale'    of    unconscionability."

Sitogum, supra, 352 N.J. Super. at 565-66 (cited with approval

in Delta Funding Corp. v. Harris, 189 N.J. 28, 40 (2006)).                                In

concluding that defendant's unconscionability claim was without

merit, the judge did not examine defendant's factual assertions

in light of these principles.


                                            V

      The order under review is vacated, and the matter remanded

for further consideration of defendant's motion to be relieved

of   the   consequences        of   his    failure        to    adequately    represent

himself    in    conformity     with      this    opinion.        We   do    not    retain

jurisdiction.




                                           16                                      A-2345-12T1
