NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2770-13T1

EWING OIL, INC.,

Plaintiff-Respondent,

v.

JOHN T. BURNETT, INC., HENRY A.

JACKSON and C&H TIRE SERVICE 

CENTER, INC.,

Defendants,

and

ESTATE OF JOHN T. BURNETT,1

Defendant-Appellant.

_______________________________

Submitted March 16, 2015 - Decided 

Before Judges Lihotz, St. John and 

Rothstadt.

On appeal from Superior Court of New Jersey, 

Law Division, Monmouth County, Docket No. 

DJ-154160-12.

Blumberg & Rosenberg, P.A., attorneys for 

appellant (Henry A. Loeb, on the briefs).

 

1 We have modified the caption to reflect the facts of 

record. Specifically, John T. Burnett, an original defendant in 

this action passed away on August 13, 2012. His widow, Kathy 

Burnett, was appointed executrix of his estate on April 24, 

2013. The Estate moved to vacate a foreign judgment entered by 

confession against John T. Burnett on December 6, 2013.

APPROVED FOR PUBLICATION

June 19, 2015

APPELLATE DIVISION

June 19, 2015
2 A-2770-13T1

Duane Morris, LLP, attorneys for respondent 

(Christopher L. Soriano, of counsel and on 

the brief).

The opinion of the court was delivered by 

LIHOTZ, P.J.A.D.

This matter examines the enforceability of a sister-state 

judgment entered pursuant to a cognovit provision contained in a 

guaranty agreement against individual guarantors of a corporate 

debt. Plaintiff, Ewing Oil Co., Inc., a Maryland Corporation, 

sued John T. Burnett, Inc. (JTB, Inc.), a New Jersey 

corporation, for payment under a supply agreement. The 

corporate obligations were unconditionally guaranteed by 

defendants John T. Burnett, Henry A. Jackson, and C&H Tire 

Service Center, Inc. (C&H), which collectively operated a retail 

gasoline service station with JTB, Inc. in Monmouth County.

Summary judgment was entered against JTB, Inc. and 

plaintiff confessed judgment against the guarantors (Maryland 

judgment). Thereafter, plaintiff initiated an action in New 

Jersey to record the Maryland judgment for purposes of seeking 

its enforcement. New Jersey recorded the judgment by default on 

July 24, 2012.

Burnett's estate (the Estate), through its executrix, moved 

to vacate the default judgment against Burnett, pursuant to Rule

4:50-1(d), asserting pre-judgment notice was not waived and the 
3 A-2770-13T1

judgment's domestication in New Jersey violated due process. 

The Estate also sought to collaterally attack the judgment, 

maintaining New Jersey had plenary authority to exercise 

jurisdiction over its enforcement, pursuant to the contract's 

forum selection clause.

The Law Division denied the motion and the Estate filed 

this appeal, reasserting its challenges against New Jersey's

recognition of the foreign judgment. Following review of the 

record and applicable law, we reject these arguments and affirm.

These facts are found in the motion record and are not 

disputed. On March 18, 2009, plaintiff and JTB, Inc. executed a 

ten-year commercial supply agreement (CSA), in which plaintiff 

agreed to supply gasoline and other petroleum products to JTB, 

Inc. Burnett solely owned JTB, Inc., and Jackson solely owned 

C&H. Together the two were partners in the gas station in 

Monmouth County.

The CSA included several provisions granting plaintiff 

security for JTB, Inc.'s payment. Aside from a $20,000 deposit 

to be applied against any outstanding sums owed, plaintiff was 

granted a security interest in any products or equipment it 

provided to or installed on the gas station's premises. With 

respect to the collateral, plaintiff obtained rights of entry 

and repossession "in addition to all rights and remedies 
4 A-2770-13T1

available to [plaintiff] as a secured party under the New Jersey 

Uniform Commercial Code and as are otherwise available to [it]

at law or in equity." 

The CSA also contained the following forum selection 

clause:

This Agreement shall be governed and 

construed in accordance with the laws of the 

State of Maryland and the courts of the 

State of Maryland shall have exclusive 

jurisdiction over any claims or 

controversies which arise under this 

Agreement. However, the courts of the 

[S]tate of New Jersey shall have 

jurisdiction in connection with any 

collection or enforcement action that 

[plaintiff], at its option, may elect to 

bring. . . .

Further assurances were included in an accompanying

suretyship contract, executed by the individual and corporate

guarantors (Guaranty). The scope of the Guaranty was broad and 

encompassed all amounts due and owing by JTB, Inc. under the CSA 

for "payments, charges, expenses[,] and costs of every kind and 

nature" arising out of or from the CSA. The Guaranty was 

executed on the same day as the CSA.

The Guaranty also contained a cognovit provision, which

stated:

3. Waiver of Notices, Confession of 

Judgment, Jurisdiction. Without notice to 

Guarantor, [plaintiff] may waive or modify 

any of the terms of the Agreement relating 

to [JTB, Inc.]'s performance without 
5 A-2770-13T1

discharging or otherwise affecting 

Guarantor's obligations hereunder. 

Guarantor waives demand, diligence, 

presentment, protest[,] and notice of every 

kind. Guarantor acknowledges that the 

Agreement is governed by Maryland law and 

establishes Maryland as the appropriate 

jurisdiction for any actions arising out of, 

or relating to, the Agreement. Guarantor

also hereby acknowledges, consents[,] and 

agrees that the provisions of this Guaranty 

and the rights of all parties mentioned 

herein shall be governed by the laws of the 

State of Maryland and interpreted and 

construed in accordance with such laws, and 

any court of competent jurisdiction of the 

State of Maryland shall have jurisdiction in 

any proceeding instituted to enforce this 

Guaranty and any objections to venue are 

hereby waived. However, the courts of the 

[S]tate of New Jersey may have jurisdiction 

in connection with any enforcement and/or 

collection action that [plaintiff], at its 

sole option, may elect to bring in that 

state. GUARANTOR FURTHER IRREVOCABLY 

AUTHORIZES AND EMPOWERS ANY ATTORNEY-AT-LAW 

OR CLERK OF ANY COURT OF COMPETENT 

JURISDICTION OF THE STATE OF MARYLAND, OR 

ELSEWHERE, TO APPEAR AT ANY TIME FOR 

GUARANTOR IF ANY ACTION BROUGHT AGAINST 

GUARANTOR ON THIS GUARANTY TO CONFESS OR 

ENTER JUDGMENT AGAINST GUARANTOR FOR HIS 

OBLIGATIONS UNDER THIS GUARANTY, INCLUDING 

COURT COSTS AND REASONABLE ATTORNEYS' FEES.

JTB, Inc. breached its duties and obligations under the 

CSA. On June 3, 2011, plaintiff issued a notice of default and 

termination of the CSA to JTB, Inc. and the guarantors. The

notice stated $18,205.45 was to be remitted within ten days or 

plaintiff would "commence pursuit of available legal remedies." 

Neither JTB, Inc. nor the guarantors made payment. By November 
6 A-2770-13T1

30, 2011, the amount due increased to $225,197.34. Plaintiff 

commenced an action in the Circuit Court for Washington County, 

Maryland against JTB, Inc. for the outstanding debt along with 

attorney's fees. 

On December 6, 2011, plaintiff obtained a default judgment 

against JTB, Inc. for $258,976.94. The Maryland court also 

entered a judgment by confession against Burnett and the other 

guarantors on the same day. Personal post-judgment service of 

the confessed judgment was effectuated on Burnett; its entry was 

not opposed. 

The Maryland judgment was recorded in New Jersey on July 

24, 2012, under DJ-154160-12. On August 13, 2012, Burnett 

passed away. His widow was named executrix. The Estate moved 

to vacate entry of the foreign judgment pursuant to Rule 4:50-

1(d), challenging its validity and enforceability. 

Following oral argument, Judge Thomas F. Scully denied the 

motion, finding the Maryland judgment was entered in accordance 

with Maryland procedure and law; Burnett had a fair opportunity 

to challenge the validity of the judgment in Maryland, after its 

entry, but failed to timely do so; and, in light of the Full 

Faith and Credit clause, New Jersey's recognition of a foreign 

judgment, entered pursuant to a valid and enforceable cognovit 
7 A-2770-13T1

provision, did not violate due process. An order was entered on 

January 29, 2014. This appeal followed. 

On appeal, the Estate renews the arguments presented before

the Law Division, stating: (1) the absence of pre-judgment 

notice violates basic due process and cannot be remedied by an 

opportunity to a post-judgment hearing; (2) pre-judgment notice 

rights under the cognovit provision of the surety agreement were 

not voluntarily, intelligently, and knowingly waived; and (3) 

New Jersey is the only forum with jurisdiction to determine 

compliance with due process requirements and the enforceability 

of the confession of judgment clause, thus allowing the Estate

to assert available meritorious defenses against its

enforcement. 

The issues on appeal require legal determinations, subject 

to our de novo review. In doing so, we do not defer to "'a

trial court's interpretation of the law and the legal 

consequences that flow from established facts.'" Estate of 

Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382 (2010) 

(brackets omitted) (quoting Manalapan Realty, L.P. v. Twp. Comm. 

of Manalapan, 140 N.J. 366, 378 (1995)).

Whether the Maryland judgment may be registered in New 

Jersey implicates the Full Faith and Credit clause of the United 

States Constitution, which mandates "Full Faith and Credit shall 
8 A-2770-13T1

be given in each State to the public Acts, Records, and judicial 

Proceedings of every other State." U.S. Const. art. IV, § 1. 

The clause requires a foreign judgment "properly entered in 

accordance with local procedure is entitled to full faith and 

credit in any other state provided . . . the judgment is not 

entered in violation of due process of law." Sec. Ben. Life

Ins. Co. v. TFS Ins. Agency, Inc., 279 N.J. Super. 419, 424

(App. Div.) (citation and internal quotation marks omitted), 

certif. denied, 141 N.J. 95 (1995). See N.J.S.A. 2A:49A-27. 

Thus, any judgment properly executed in a foreign state, which 

complies with the requirements of the due process clause is 

entitled to full faith and credit in New Jersey. See In re 

Triffin, 151 N.J. 510, 524 (1997). On the other hand, a foreign 

judgment, entered without providing the necessary protections 

safeguarded by the Fourteenth Amendment of the United States

Constitution and the fundamental rights clause of Article 1, 

paragraph 1 of the New Jersey Constitution, may not be enforced. 

See generally, Greenberg v. Kimmelman, 99 N.J. 552, 568 (1985) 

("[A]rticle 1, paragraph 1, like the [F]ourteenth [A]mendment, 

seeks to protect against injustice and against the unequal 

treatment of those who should be treated alike. To this extent, 

[A]rticle 1 safeguards values like those encompassed by the 

principles of due process and equal protection.").
9 A-2770-13T1

When viewed through the prism of due process protections, a 

foreign judgment will not be entitled to full faith and credit 

in New Jersey if a defendant can demonstrate the forum state 

lacked personal or subject matter jurisdiction, Tara Enters., 

Inc. v. Daribar Mgt. Corp., 369 N.J. Super. 45, 56 (App. Div. 

2004), or if a defendant was denied adequate notice and a 

reasonable opportunity to be heard. Sonntag Reporting Serv., 

Ltd. v. Ciccarelli, 374 N.J. Super. 533, 538 (App. Div. 2005). 

"[A]bsent such due process defenses, . . . litigation pursued to 

judgment in a sister state is conclusive of the rights of the 

parties in the courts of every state as though adjudicated 

therein." Ibid. (citing DeGroot, Kalliel, Traint & Conklin, 

P.C. v. Camarota, 169 N.J. Super. 338, 343 (App. Div. 1979)). 

See also Arnold, White & Durkee, P.C. v. Gotcha Covered, Inc., 

314 N.J. Super. 190, 201 (App. Div.) (stating New Jersey courts 

are "obliged to recognize a foreign money judgment, unless the 

defendant demonstrates that the foreign jurisdiction lacked 

personal jurisdiction of defendant, the judgment was obtained by 

fraud[,] or was entered contrary to due process"), certif. 

denied, 157 N.J. 543 (1998).

Although confessed judgments are viewed with "judicial 

distaste" in New Jersey, Ledden v. Ehnes, 22 N.J. 501, 510 

(1956), constitutional and public policy challenges against 
10 A-2770-13T1

their enforcement have been advanced and found legally 

untenable. See United Pac. Ins. Co. v. Estate of Lamanna, 181 

N.J. Super. 149, 155-56 (Law Div. 1981) ("New Jersey courts have 

long recognized foreign judgments by confession and have held 

that they are entitled to full faith and credit. . . . No 

public policy [in New Jersey] denies recognition to a foreign 

judgment by confession."). Rather, the law is clear: "Entry of 

judgment based upon a warrant to confess judgment does not . . . 

necessarily offend due process, as long as the due process 

requirements of reasonable notice and opportunity to be heard 

are knowingly and voluntarily waived." Tara Enters., supra, 369 

N.J. Super. at 56 (citing Lamanna, supra, 181 N.J. Super. at 

156). See also D.H. Overmyer Co. v. Frick Co., 405 U.S. 174, 

187, 92 S. Ct. 775, 783, 31 L. Ed. 2d 124, 135 (1972) (holding 

confessed judgments are "not, [per se], violative of the 

Fourteenth Amendment due process" protections, as reasonable 

notice and opportunity to be heard could be waived). 

Maryland Court Rule 2-611 governs confessed judgments in 

that state. The rule provides such judgments "may be entered by 

the circuit court clerk upon the filing of a complaint 

accompanied by the original or a copy of the instrument 

authorizing the confessed judgment and an affidavit specifying 
11 A-2770-13T1

the amount due and stating the address of the defendant." 

Schlossberg v. Citizens Bank, 341 Md. 650, 655-56 (1996). 

Upon entry of a judgment by confession, the 

clerk is required to notify the defendant of 

the entry of judgment and of the deadline 

for filing a motion to "open, modify or 

vacate" the judgment. Md. Rule 2-611(b).

If the defendant so moves, the circuit 

court must determine whether there is a 

"substantial and sufficient basis for an 

actual controversy as to the merits of the 

action." Md. Rule 2-611(d). In other 

words, the court must determine whether the 

defendant has a potentially meritorious 

defense to the confessed judgment complaint. 

The court does not, however, decide the 

merits of the controversy at this stage. 

[PAUL V. NIEMEYER AND LINDA M. SCHUETT,

Maryland Rules Commentary 466 (4th ed. 

2014)]. If the court finds that a basis for 

a defense exists, the rule requires the 

court to order that the confessed judgment 

be opened, modified, or vacated so that the 

defendant can file a responsive pleading to 

the plaintiff's complaint and the merits can 

be determined. Md. Rule 2-611(d).

[Id. at 656.]

Applications to open, modify, or vacate entry of default must be 

filed within sixty days of service. See Md. Rule 2-611(d) & 2-

321(b)(1) ("A defendant who is served with an original pleading 

outside of the State [of Maryland] but within the United States 

shall file an answer within [sixty] days after being served."). 

Further, Maryland law does not presuppose a waiver is 

valid. In fact, Maryland Rule 2-611(b) requires the trial court 
12 A-2770-13T1

to determine, among other things, "the pleadings and papers 

demonstrate a factual and legal basis for entitlement to a 

confessed judgment." 

In this matter, the Estate suggests the motion judge erred 

in concluding plaintiff fully complied with Maryland procedures 

in entering its judgment against Burnett. However, the Estate 

does not dispute the same complaint contained separate requests 

for judgment against JTB, Inc. and to confess judgment against 

the guarantors. The pleading appended all documentation 

necessary to identify the rights and responsibilities of the 

respective parties. Plaintiff filed and served its complaint 

against JTB, Inc. and the other defendants; no response or 

objection was filed. Once judgment was entered against the 

corporation, plaintiff was free to request relief against the 

guarantors.

The Estate also suggests Burnett's waiver of pre-judgment 

notice contained in the Guaranty was uncounseled and, therefore, 

uninformed. We cannot agree.

There is no statement of personal knowledge by the 

executrix stating whether Burnett consulted with legal counsel 

prior to executing the CSA or Guaranty. Plaintiff certified 

JTB, Inc. defaulted under the CSA and provided the documents 

supporting entry of judgment against it. JTB, Inc. never 
13 A-2770-13T1

challenged the action or the relief sought. Proof of the 

Guaranty and its execution by Burnett was also provided to 

support judgment under the cognovit provision. 

Moreover, the Guaranty is clearly written and its waiver 

provisions are boldly identified, as is the confession of 

judgment clause. Importantly, plaintiff's action was based on 

the Guaranty, not the terms of its CSA with JTB, Inc. See Tara 

Enters., supra, 369 N.J. Super. at 59 (holding a guarantee of a 

note that contains a cognovit provision alone is insufficient to 

permit confession of judgment against the guarantors). Further, 

the provision contains a succinct statement that Maryland law 

governs enforcement and that any attorney so appointed may enter 

judgment against the guarantors. 

Maryland law provides: 

an evidentiary hearing to determine whether 

[the] defendant's waiver was voluntarily, 

knowingly, and intelligently made before a 

confessed judgment may be entered by the 

court. Rather, the burden is on [the] 

defendant in its motion to vacate and in any 

hearing thereon to set forth fully the 

evidence showing either that the alleged 

amount owed had no basis in fact (e.g., was 

miscalculated) or that the agreement was not 

knowingly and voluntarily entered. 

[Atl. Leasing & Fin., Inc. v. IPM Tech., 

Inc., 885 F.2d 188, 193 (4th Cir. 1989).]

 

The Estate has failed to meet this burden. After reviewing 

all the documents and considering the executor's certification, 
14 A-2770-13T1

we find no support for concluding Burnett's execution of the 

Guaranty was involuntary or unknowing. 

We also reject the Estate's due process challenge. The

Maryland judgment was entered and plaintiff served Burnett, 

individually, as mandated by Maryland Rule 2-611(a). The postjudgment process affords additional notice and an opportunity to 

challenge the confessed judgment's validity within sixty days of 

its entry. This fully complies with the rigors of due process. 

See Tara Enters., supra, 369 N.J. Super. at 56 (recognizing 

"[i]n certain contexts . . . a post-judgment hearing may afford 

the requisite due process"). Despite the availability of a 

constitutionally valid post-judgment procedure to challenge 

entry of the judgment in Maryland, which could include whether 

Burnett's waiver was knowing and voluntary, Burnett did not act 

within the permitted sixty-day period. Thereafter, plaintiff 

properly filed its complaint to domesticate the Maryland 

judgment in New Jersey, attaching all requisite documents.

Contrary to the Estate's contention, a waiver hearing is 

not mandated prior to confessing judgment, so long as the waiver 

provisions are clear and unambiguous. See Billingsley v. 

Lincoln Nat'l Bank, 271 Md. 683, 693 ("Overmyer cannot be read 

to mandate a 'waiver hearing' prior to entry of a confessed 

judgment and, insofar as one may be required thereafter, it was 
15 A-2770-13T1

clearly available to [the] appellants at the hearing on their 

motion to vacate. No more is required."). 

In this state action to domesticate the Maryland judgment, 

the Estate cannot now raise substantive claims collaterally 

attacking the enforceability of the cognovit provision or its 

voluntary acceptance, as these issues could and should have been 

presented in the Maryland post-judgment process. Sec. Ben. Life 

Ins., supra, 279 N.J. Super. at 424. Burnett was given notice 

of the judgment and had the right to petition the Maryland court 

to open, modify, or vacate that judgment if a valid basis to do 

so was presented. See Md. Rule 2-611(d). For reasons not 

disclosed, he chose not to do so.2 Judge Scully's determination 

of the validity of Burnett's waiver to pre-judgment notice and 

declination to pursue post-judgment process must be upheld. Id.

at 426 (barring a defendant from raising in an action to

register a judgment "any of the issues that were, could[,] or 

should have been litigated in the [foreign] action" resulting in 

the judgment). 

Finally, the Estate alleges New Jersey was an express forum 

set forth in the CSA, suggesting plaintiff "can neither delimit 

New Jersey's plenary jurisdiction nor its availability as a 

 

2 We note this record contains no facts to support the Estate's 

claim the Maryland court lacked personal jurisdiction to enter 

the judgment against Burnett. 
16 A-2770-13T1

forum for collateral attack when a foreign entity seeks to 

utilize New Jersey's jurisdiction for enforcement." The Estate

is incorrect.

The terms of the parties' agreement designates New Jersey 

as a supplementary forum for "collection or enforcement 

action[s]" filed for domestication within its borders. As we 

noted, review of a domesticated foreign judgment by our courts 

is limited to whether the constitutional guarantee of notice and 

a hearing has been satisfied. See Sontag, supra, 374 N.J. 

Super. at 537. Having answered that question in the 

affirmative, we reiterate "[t]he appropriate forum for a 

defendant to raise defenses to a claim is in the tribunal where 

the judgment was rendered." Ibid. 

Affirmed.