MARY JO LAMB VS. FLUTURA SAITI AND SAFET SAITI(L-0073-14, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-5174-15T1

MARY JO LAMB,

Plaintiff-Respondent,

v.

FLUTURA SAITI,

Defendant-Respondent,

and

SAFET SAITI,

Defendant-Appellant.
________________________________

Submitted July 5, 2017 – Decided September 22, 2017

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
0073-14.

Rachel L. Baxter, attorney for appellant.

Perrucci Law Corporation, attorneys for
respondent Mary Jo Lamb (Angelo M. Perrucci,
Jr., on the brief).

PER CURIAM
 Defendant Safet Saiti appeals from an order denying his

Rule 4:50 motion for relief from a default judgment. Because it

appears the judgment may have been entered without legal basis,

we vacate the order and remand for reconsideration of whether

defendant should be relieved of the default judgment "upon such

terms as are just." R. 4:50-1.

Plaintiff Mary Jo Lamb filed a complaint alleging she

loaned defendants Flutura Saiti and Safet Saiti, wife and

husband, $75,400 in 2012, as memorialized in a note signed by

Flutura Saiti on August 10, 2013, attached as an exhibit to the

complaint. The note states that "I Flutura Saiti owe Mary Jo

Lamb $56,000.00 from a loan given to me by Mary Jo Lamb in

2012." The note makes no mention of Safet Saiti at all. In

count three of the complaint, plaintiff alleged that "[o]n or

about August 10, 2013 and at times prior thereto, defendants and

each of them represented to plaintiff that they would use their

best efforts to repay plaintiff." She claimed the

representations, on which she relied, were false when made and

that she "would not have made the loan otherwise." Plaintiff

obtained final judgment by default against defendants for a sum

certain pursuant to Rule 4:43-2, based on an unopposed

certification of amount due not included in the record.

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 Flutura Saiti moved unsuccessfully to vacate the default

judgment in January 2015. The court denied the motion, finding

Flutura Saiti accepted personal service of the complaint and put

forth no evidence of excusable neglect.

Safet Saiti moved to vacate the default judgment in May

2016, two years after its entry. He claimed he was out of state

when Flutura Saiti accepted service, that he and Flutura Saiti

had been divorced since 2003, although they continued to reside

in the same home, and that he had never met or spoken to

plaintiff and had "never made any agreement verbally or in

writing to pay Plaintiff any sum of money."

Plaintiff opposed the motion, contending Safet Saiti

"waited too long" to file it and that she believed both

defendants were "attempting to perpetrate a fraud" on the court.

Specifically, plaintiff submitted an affidavit in which she

claimed that while defendants "may have had a judgment of

divorce entered in a New York Court in 2003, they continue to

live together as husband and wife." Critically, however,

plaintiff made no response to Safet Saiti's allegations that he

had never met or spoken to plaintiff and never agreed to pay her

any sum of money.

Safet Saiti filed a reply acknowledging that a motion made

for reasons (a), (b) and (c) of Rule 4:50-1 must be made within

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a year of the judgment under Rule 4:50-2, but further noting

that a motion made under the catch-all category of Rule 4:50-

1(f) need only be made "within a reasonable time" pursuant to

Rule 4:50-2. He argued the judgment against him should be

vacated because plaintiff's complaint against him was without

any legal basis.

The same judge who entered the default judgment in 2014,

and denied Flutura Saiti's motion to vacate the default judgment

in 2015, likewise denied Safet Saiti's application. In a

written statement of reasons accompanying the order, the judge

found Safet Saiti had not shown "any mistake, inadvertence,

surprise, excusable neglect or any other reason that would allow

for this motion to be considered by this court" and that the

application was "made two years after the judgment."

We acknowledge that service on Safet Saiti was proper under

Rule 4:4-4(a)(1), and that he failed to put forth any proof of

excusable neglect. But the complaint upon which default

judgment was entered appears on its face to preclude liability

against Safet Saiti. The I.O.U. attached to the complaint

refers only to Flutura Saiti and plaintiff does not claim in her

brief on appeal that she loaned money to Safet Saiti or that he

signed the note on which she sued. Instead, she points to the

count of her complaint saying both defendants promised "on or

4 A-5174-15T1
about August 10, 2013 and at times prior thereto" to use their

best efforts to repay the debt. According to plaintiff's

complaint, those representations came after the loan. The note,

which was signed on August 10, 2013, only memorialized the loan

made in 2012. Of course, a representation by one to use his

best efforts to pay a debt he does not owe does not make him

liable for it, absent some consideration plaintiff has not

alleged in the complaint. See Great Falls Bank v. Pardo, 263

N.J. Super. 388, 401 (Ch. Div. 1993), aff'd, 273 N.J. Super. 542

(App. Div. 1994).

Because the allegations of the complaint appear

insufficient to establish liability against Safet Saiti, default

judgment against him may have been improvidently granted. See

Douglas v. Harris, 35 N.J. 270, 276-77 (1961); Heimbach v.

Mueller, 229 N.J. Super. 17, 23 (App. Div. 1988); Pressler &

Verniero, Current N.J. Court Rules, comment 2.2.2. on R. 4:43-2

(2017). Under these circumstances, instead of denying the

motion, the court should have considered whether there were just

terms upon which relief from the judgment should have been

allowed. See ATFH Real Prop., LLC v. Winberry Realty P'ship,

417 N.J. Super. 518, 527-28 (App. Div. 2010). Failure to do so

was a mistaken application of discretion. See US Bank Nat'l

5 A-5174-15T1
Ass'n v. Guillaume, 209 N.J. 449, 467 (2012), certif. denied,

208 N.J. 337 (2011).

In our view, the provision of Rule 4:50-1 permitting relief

from a final judgment "upon such terms as are just" is designed

for cases such as this. Although plaintiff has not put forth a

prima facie case against Safet Saiti, she has no doubt incurred

costs and been inconvenienced by his failure to have responded

to the complaint. The court can accordingly consider such in

imposing terms designed to relieve plaintiff of any prejudice

attending the vacation of a default judgment improvidently

entered. See Reg'l Constr. Corp. v. Ray, 364 N.J. Super. 534,

543 (App. Div. 2003).

We are to construe our Rules "to secure a just

determination, simplicity in procedure, fairness in

administration and the elimination of unjustifiable expense and

delay." R. 1:1-2(a). Doing so here compels us to vacate the

order under review and remand for reconsideration of whether

Safet Saiti should be relieved of the default judgment "upon

such terms as are just." R. 4:50-1.

Vacated and remanded. We do not retain jurisdiction.

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