LIBERAL FINANCE SERVICE VS. GABRIEL HORACE (DC-000026-17, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-0969-17T1

LIBERAL FINANCE SERVICE,

Plaintiff-Respondent,

v.

GABRIEL HORACE,

Defendant-Appellant.
____________________________

Submitted September 18, 2018 – Decided October 2, 2018

Before Judges Suter and Firko.

On appeal from Superior Court of New Jersey, Law
Division, Essex County, Docket No. DC-000026-17.

Denbeaux & Denbeaux, attorneys for appellant (Joshua
W. Denbeaux, on the briefs).

Randolph Walzer & Associates LLC, attorneys for
respondent (Randolph Walzer, on the brief).

PER CURIAM

Defendant appeals from two orders denying his motions to vacate

judgment and reconsideration. For the following reasons, we affirm.
 I.

Plaintiff filed a complaint against defendant after he defaulted on an

installment sales contract to purchase a vehicle. The parties entered into a

settlement and defendant agreed to pay $200 per month until the balance was

paid. Plaintiff agreed not to enforce the judgment as long as payments were

made. Counsel for plaintiff memorialized the settlement terms in a letter w hich

stated that plaintiff "[does] intend to take a [J]udgment against [defendant]

. . . ." and that the $200 monthly payments would be made directly to plaintiff's

counsel. No answer was filed.

After making payments for several months, defendant defaulted and

plaintiff proceeded to obtain a default judgment, which was enforced by way of

wage garnishment. 1 Plaintiff denies it refused payments, as alleged by

defendant.

Thereafter, defendant moved to vacate the default judgment and for leave

to file an answer, affirmative defenses, counterclaims, and a third-party

complaint, which was denied. The judge found that "defendant admitted that he

owed the money and there is no basis to vacate the judgment pursuant to Rule

4:50-1." In clarifying his prior order, the judge also found that "[d]efendant

1
According to plaintiff, the balance due was less than $1,000.
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agreed to the entry of judgment and to pay $200 a month until the judgment was

paid and he cannot now change his mind." This appeal followed.

II.

Defendant presents the following arguments in this appeal:

I. THE COURT BELOW ERRED IN REFUSING
TO VACATE THE JUDGMENT OF DEFAULT
BECAUSE THE JUDGMENT WAS ENTERED
IN VIOLATION OF THE CLEAR LANGUAGE
OF THE SUMMONS, THE DEFENDANT WAS
NOT IN DEFAULT AND BECAUSE THE
DEFENDANT MET ALL THE CONDITIONS
OF R. 4:50-1[.]

a. [R.] 4:50-1(a) - DEFENDANT GABRIEL
HORACE COMPLIED WITH THE
INSTRUCTIONS IN THE SUMMONS FROM
THE COURT AND SHOULD NOT HAVE
BEEN DEFAULTED BY THE COURT WHICH
HAD NOT BEEN MADE AWARE OF THE
SETTLEMENT AT THE TIME OF THE
JUDGMENT BY DEFAULT[.]

b. R. 4:50-1(e) [-] THE CASE WAS
SETTLED BEFORE AN ANSWER WAS DUE
TO HAVE BEEN FILED BY DEFENDANT
HORACE AND THE CONTINUATION OF
THE JUDGMENT AFTER SUFFICIENT
NOTICE OF THE SETTLEMENT WAS
PROVIDED TO THE COURT [IS]
INEQUITABLE[.]

c. R. 4:50-1(f) [-] IF THE COURT
CONCLUDES THAT NO SPECIFICALLY
ENUMERATED SUBSECTION OF [R.] 4:50-1

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 APPLIES, THE COURT SHOULD VACATE
THE JUDGMENT PURSUANT TO
SUBSECTION (f) AS THE PLAINTIFF AND
NOT DEFENDANT IS IN BREACH OF THE
SETTLEMENT AGREEMENT[.]

d. THE COURT BELOW ERRED IN
CONCLUDING THAT [DEFENDANT]
LACKED A MERITORIOUS DEFENSE TO
THE COMPLAINT[.]

e. [R.] 4:30A – UNLESS THIS COURT
VACATES FINAL JUDGMENT, THE ENTIRE
CONTROVERSY DOCTRINE WILL
INSULATE FROM LIABILITY THE SELLER
OF THE AUTOMOBILE AND PERMITTING
THIS [JUDGMENT] TO STAND WOULD
PERVERT THE PURPOSE OF THE ENTIRE
CONTROVERSY DOCTRINE[.]

We note that defendant does not seek to invalidate the settlement

agreement. Indeed, he initially made payments, thereby ratifying the settlement

terms. He now seeks to reverse course and defend the action.

Defendant argues that plaintiff was remiss by not dismissing the complaint

or notifying the court that the matter was settled. He further contends that he

"complied" with the instructions set forth in the summons, and therefore , the

trial judge wrongfully allowed default and default judgment to enter. We

disagree.

The summons provided as follows:

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 IF YOU DISAGREE WITH THE PLAINTIFF'S
CLAIMS, A WRITTEN ANSWER OR SIGNED
AGREEMENT MUST BE RECEIV[E]D BY THE
COURT ABOVE, ON OR BEFORE 02/14/2017, OR
THE COURT MAY RULE AGAINST YOU. IF YOU
DISAGREE WITH THE PLAINTIFF, YOU MUST DO
ONE OR BOTH OF THE FOLLOWING:

1. Answer the Complaint […]

2. Resolve the Dispute. Contact the plaintiff's
attorney, or contact the plaintiff if the plaintiff does not
have an attorney, to resolve this dispute. The plaintiff
may agree to accept payment arrangements. If you
reach an agreement, mail or hand deliver the SIGNED
agreement to the court's address listed above on or
before 02/14/2017.

Prior to the deadline, defendant called plaintiff's counsel, spoke to a

paralegal, and voluntarily reached a settlement. The terms were clearly set forth

in a letter prepared by the firm which stated:

Thank you for telephoning our office on 13 February
2017, and for speaking with Cathy Baatz, a paralegal in
our office. You have reported that you have now been
served with the Summons and Complaint in the
captioned matter. As you were advised, we do intend
to take a [J]udgment against you, a [J]udgment being
the [C]ourt's determination that money is owed. You
have admitted that you do, in fact, owe this money.

Now, you have promised to forward regular payments
of $200[.00] each month directly to our office
commencing 23 February 2017. Please note the money
must be in our office by the 23rd or you will call our
office and do a check by phone payment on that date.

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 There is a fee of $7.95 for this service until such time
as the entire [J]udgment has been satisfied. Each of
these payments must be forwarded regularly and
promptly as promised.

All payments should be made payable to "Randolph
Walzer, Esq." and forwarded directly to this office in
one of the enclosed self-addressed envelopes. If you
have any questions, please do not hesitate to telephone
this office.

III.

We are cognizant of the strong and longstanding social values that favor

the settlement of litigation. "[T]he settlement of litigation ranks high in our

public policy." Brundage v. Estate of Carambio, 195 N.J. 575, 601 (2008)

(quoting Jannarone v. W.T. Co., 65 N.J. Super. 472, 476 (App. Div. 1961)).

Settlements provide a measure of repose and finality to disputes that would

otherwise persist and burden the litigants and our court system if they were not

amicably resolved. A settlement of a legal claim between parties is a contract

like any other contract, "which a court, absent a demonstration of 'fraud or other

compelling circumstances,' should honor and enforce as it does other contracts."

Pascarella v. Bruck, 190 N.J. Super. 118, 124-25 (App. Div. 1983) (quoting

Honeywell v. Bubb, 130 N.J. Super. 130, 136 (App. Div. 1974)). We will not

interfere with a trial judge's factual findings and conclusions concerning a

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settlement agreement that are amply supported by the record. Lahue v. Pio

Costa, 263 N.J. Super. 575, 597 (App. Div. 1993).

We disagree with defendant that the failure of the parties to notify the

court of the settlement agreement serves as a basis to vitiate its terms. This

would contravene this State's longstanding public policy of valuing the

settlement of litigation. We "strain to give effect to the terms of a settlement

whenever possible." Brundage, 195 N.J. at 601 (quoting Dep't of Pub. Advocate

v. N.J. Bd. of Pub. Util., 206 N.J. Super. 523, 528 (App. Div. 1985)).

In sum, we are convinced that this settlement was voluntarily entered into

and was properly enforced by the trial judge.

To the extent we have not addressed defendant's remaining arguments, we

find them without sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(1)(E).

Affirmed.

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