                                NOT FOR PUBLICATION WITHOUT THE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-3639-16T4

CAPITAL ONE BANK (U.S.A.), N.A.,

           Plaintiff-Respondent,

v.

EDWIN P. GANT,

     Defendant-Appellant.
_________________________________

                    Submitted May 22, 2018 – Decided October 11, 2018

                    Before Judges Mawla and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Gloucester County, Docket No. DC-003164-
                    16.

                    Edwin P. Gant, appellant pro se.

                    Respondent has not filed a brief.

           The opinion of the court was delivered by

DeALMEIDA, J.A.D.
      Defendant Edwin P. Gant appeals from a March 6, 2017 order of the

Special Civil Part denying his motion to vacate an order granting summary

judgment in favor of plaintiff Capital One Bank (U.S.A.), N.A. (Capital One) in

its collection action for an unpaid credit card debt. We affirm.

                                       I.

      The following facts are taken from the record.        Capital One issued

defendant, an attorney appearing pro se, a credit card account he used to

purchase goods and services. He made his last purchase with the credit card on

December 24, 2014. On January 7, 2015, defendant made a payment of $36 on

the account. He has not made a payment since then.

      Due to defendant's failure to make monthly minimum payments, Capital

One assessed late fees on the account on February 7, March 7, and April 7, 2015.

Capital One suspended defendant's account from May to August 2015, when it

charged off the account. At the time of the charge off, defendant's account had

an unpaid balance of $1748.39.

      On August 8, 2016, Capital One filed a complaint against defendant in the

Special Civil Part seeking a judgment for the unpaid balance on the account. In

his answer, defendant acknowledged the account, admitted he is "obligated to

pay some amount back assuming that it is legally adjudicated that he do so," and


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demanded "[s]trict proof . . . as to each and every advance from [p]laintiff to

[d]efendant that [p]laintiff is claiming damages for." 1

      On or about December 1, 2016, Capital One filed a motion for summary

judgment. The motion was supported by an affidavit of an authorized agent of

Capital One stating that plaintiff's business records indicate that defendant's

credit card account had an outstanding balance of $1748.39 when it was charged

off by plaintiff.

      A certification of service signed by plaintiff's counsel states that the

moving papers were served on defendant at his last known address by certified

mail, return receipt requested, and by ordinary mail on December 2, 2016.

Defendant did not file opposition to the motion.

      On December 20, 2016, the trial court granted plaintiff's summary

judgment motion, finding that "there is no genuine issue as to any material fact"

precluding plaintiff's claim for relief. The trial court denied plaintiff's requ est

for the award of statutory fees pursuant to N.J.S.A. 22A:2-42.             The only

evidence in the record of service of the trial court's order on defendant is a letter

from plaintiff's counsel dated January 19, 2017.



1
  Although defendant concedes he owes Capital One $813.47, he did not satisfy
that obligation while this matter was pending in the trial court.
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                                         3
      On January 26, 2017, defendant moved to vacate the December 20, 2016

order, arguing that he received less than ten days' notice of plaintiff's motion.

See R. 6:3-3(c)(2). In a certification accompanying the motion, defendant states

he received Capital One's moving papers when he "signed for" certified mail at

his local post office on December 17, 2016. The certification does not state

when plaintiff received notice from the postal service of the certified mail.

Defendant also certified that the envelope containing plaintiff's motion was

postmarked December 5, 2016. The only envelope in the record bearing a

December 5, 2016 postmark, however, indicates that it was sent by first-class

mail. The envelope has no markings commonly associated with certified mail,

return receipt requested, and reflects postage paid of only eighty-eight cents,

which is not consistent with having been sent by certified mail, return receipt

requested. In his moving papers, defendant argued that he had viable defenses

to the allegations set forth in the complaint and asked the trial court to "require

the [p]laintiff to sustain its burden of proof as to all alleged charges which it is

attributing" to him. Capital One did not oppose the motion.

      On March 6, 2017, the trial court denied defendant's motion to vacate the

December 20, 2016 order. The court found defendant failed to "include in [his]

brief [the] basis for [the] claim [that] genuine issue[s] of material fact remain."


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                                         4
      On March 16, 2017, defendant filed a response to plaintiff's summary

judgment motion. Because defendant's motion to vacate the December 20, 2016

order had already been denied, the trial court did not address this submission. 2

      This appeal followed.

                                        II.

      Defendant argues that the trial court erred when it denied his motion to

vacate the December 20, 2016 order because he was not served with Capital

One's summary judgment motion in a timely manner.             Because defendant

produced no evidence establishing late service of plaintiff's motion, we disagree.

      The standards set forth in Rule 4:49-2 and Rule 4:50-1 guide resolution of

defendant's motion to vacate the December 20, 2016 order.            Rule 4:49-2

provides:

            Except as otherwise provided by R. 1:13-1 (clerical
            errors) a motion for rehearing or reconsideration
            seeking to alter or amend a judgment or order shall be
            served not later than 20 days after service of the
            judgment or order upon all parties by the party
            obtaining it. The motion shall state with specificity the
            basis on which it is made, including a statement of the

2
  "Appellants, as a general rule, cannot undermine the ruling of the trial court by
submitting additional evidence after" its decision. N.J. Div. of Youth & Family
Servs. v. M.M., 189 N.J. 261, 291 (2007). This court's scope of review "is
limited to whether the trial court's decision is supported by the record as it
existed at the time of" its decision. Id. at 278. Accordingly, we do not consider
defendant's March 16, 2017 submission.
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                                        5
            matters or controlling decisions which counsel believes
            the court has overlooked or as to which it has erred, and
            shall have annexed thereto a copy of the judgment or
            order sought to be reconsidered and a copy of the
            court’s corresponding written opinion, if any.

      Rule 4:50-1 sets forth the grounds on which a party may be relieved from

operation of a final judgment:

            On motion, with briefs, and upon such terms as are just,
            the court may relieve a party or the party’s legal
            representative from a final judgment or order for the
            following reasons: (a) mistake, inadvertence, surprise,
            or excusable neglect; (b) newly discovered evidence
            which would probably alter the judgment or order and
            which by due diligence could not have been discovered
            in time to move for a new trial under R. 4:49; (c) fraud
            (whether heretofore denominated intrinsic or extrinsic),
            misrepresentation, or other misconduct of an adverse
            party; (d) the judgment or order is void; (e) the
            judgment or order has been satisfied, released or
            discharged, or a prior judgment or order upon which it
            is based has been reversed or otherwise vacated, or it is
            no longer equitable that the judgment or order should
            have prospective application; or (f) any other reason
            justifying relief from the operation of the judgment or
            order.

      An application to set aside an order pursuant to Rule 4:50-1 is addressed

to the motion judge's sound discretion, "which should be guided by equitable

principles." Hous. Auth. v. Little, 135 N.J. 274, 283 (1994). A trial court's

determination under Rule 4:50-1 is entitled to substantial deference and will not

be reversed in the absence of a clear abuse of discretion. US Bank Nat'l Ass'n

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                                       6
v. Guillaume, 209 N.J. 449, 467 (2012). To warrant reversal of the court's order,

defendant must show that the decision was "made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis." Ibid. (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)

(internal quotations omitted)).

      The only subsection of Rule 4:50-1 under which defendant arguably could

have sought relief is subsection (f). Relief under subsection (f) is available only

when "truly exceptional circumstances are present." Little, 135 N.J. at 286

(citation omitted).   "The movant must demonstrate the circumstances are

exceptional and enforcement of the judgment or order would be unju st,

oppressive or inequitable." Johnson v. Johnson, 320 N.J. Super. 371, 378 (App.

Div. 1999) (citation omitted). Where a procedural violation is involved, the

court must consider "'[t]he defendant's right to have the plaintiff comply with

procedural rules[, which] conflicts with the plaintiff's right to an adjudication of

the controversy on the merits.'" Abtrax Pharms. v. Elkins-Sinn Ins., 139 N.J.

499, 513 (1995) (quoting Zaccardi v. Becker, 88 N.J. 245, 252 (1982)).

      Rule 1:5-2 in pertinent part provides that "[s]ervice upon a party of

[written motions] shall be made as provided in [Rule] 4:4-4, or by registered or

certified mail, return receipt requested, and simultaneously by ordinary mail to


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                                         7
the party's last known address." Pursuant to Rule 6:3-3(c), motions in the

Special Civil Part "shall be made in the form and matter prescribed by R. 1:6

. . . ." According to Rule 1:6-3(c), service of a motion on a pro se litigant is

deemed complete "only on receipt at the . . . address of a pro se party. If service

is by ordinary mail, receipt will be presumed on the third business day after

mailing."

      Rule 6:3-3(c)(2) provides

            that the order sought will be entered in the discretion of
            the court unless the . . . pro se party upon whom it has
            been served notifies the clerk of the court and the
            attorney for the moving party . . . in writing within ten
            days after the date of service of the motion that the
            responding party objects to the entry of the order.

      The record contains a copy of only one envelope from plaintiff's counsel.

The envelope, which defendant concedes was delivered to him, is postmarked

December 5, 2016, and plainly indicates that it was sent by first-class mail.

Since service by ordinary mail is presumed on the third business day after

mailing, service on defendant was presumed complete on December 8, 2016,

more than ten days prior to entry of the December 20, 2016 order.

      Defendant's certification does not state that he did not receive the copy of

Capital One's motion sent by first-class mail. In fact, defendant submitted a

copy of the first-class mail envelope in his moving papers. Defendant does not

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                                        8
state the date on which the copy of the motion sent by ordinary mail was

delivered to him. Instead, defendant certifies only that he received the copy of

Capital One's motion sent by certified mail, return receipt requested, on

December 17, 2016.        We see no evidence in the record overcoming the

presumption that the copy of Capital One's motion mailed to defendant by

ordinary mail was delivered to him on December 8, 2016.

      Nor are we convinced by defendant's argument that the trial court erred

when it denied defendant's motion to vacate the December 20, 2016 order in the

absence of opposition to the motion from Capital One.                "[E]ven in an

uncontested motion, the judge must consider whether undisputed facts are

sufficient to entitle a party to relief. It is not enough to suggest that there is no

opposition, especially if the facts do not warrant the granting of relief in the first

instance." Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 302 (App. Div. 2009).

The trial court reviewed defendant's submissions and determined that he failed

to establish the existence of disputed material facts warranting vacating the

December 20, 2016 order.

      We find defendant's remaining arguments to be without merit sufficient to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.


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