SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-4001-21 

CAPTIAL ONE BANK (USA), 

N.A., 

 Plaintiff-Respondent, 

v.

ANDREA SMITH, 

 Defendant-Appellant. 

__________________________

Submitted November 9, 2023 – Decided August 21, 2024 

Before Judges Vernoia and Gummer. 

On appeal from the Superior Court of New Jersey, Law 

Division, Cape May County, Docket No. DC-000667-

21.

Andrea Smith, appellant pro se. 

Lyons, Doughty and Veldhuis, PC, attorneys for 

respondent (Jill Tompkins and Lauren Keating, on the 

brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 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.
2 A-4001-21

 In this credit-card collection case, defendant Andrea Smith appeals from 

an order denying her motion to vacate a default judgment and two orders 

denying her subsequent motions to "amend" the default judgment. Because the 

trial judge did not abuse his discretion in denying the motions, we affirm. 

Because the judgment erroneously awarded counsel fees, we remand the case to 

the trial court with instructions the court issue an amended judgment that does 

not include a fee award. 

 On May 12, 2021, plaintiff Capital One Bank (USA), N.A., filed a 

complaint against defendant, alleging she had failed to make payments due on a 

credit-card account. Plaintiff sought a judgment equal to the balance allegedly 

due, $12,011.07, plus costs. 

 The clerk of the court subsequently entered default. See R. 6:6-2 ("When 

a party against whom affirmative relief is sought has failed to appear, plead or 

otherwise defend . . . , the clerk shall enter the party's default."). On or about 

June 29, 2021, defendant attempted to move to vacate default.1 The court, 

however, denied her motions for a waiver of filing fees in orders dated July 29, 

2021, and August 12, 2021, and, consequently, did not consider the motion. 

1

 The only document plaintiff included in her appellate appendix regarding her 

motion to vacate default was a one-page certification she had submitted in 

support of that motion. 
3 A-4001-21

 On September 15, 2021, plaintiff filed a "judgment request summary," 

seeking entry of judgment in the amount of $12,011.07, and a certification in 

support of that request. Two days later, judgment was entered in the amount of 

$12,348.29, which represented the balance due of $12,011.07, costs of $82, and 

$255.22 in counsel fees. See R. 6:6-3 ("If the plaintiff's claim against a 

defendant is for a sum certain . . . , the clerk on request of the plaintiff . . . shall 

enter judgment for the net amount and costs against the defendant, if a default 

has been entered against the defendant for failure to appear . . . ."). The court 

awarded counsel fees, even though in its submission plaintiff had expressly 

"waive[d] statutory attorney fees" and requested that the court "not award 

statutory attorney fees." 

 On September 27, 2021, defendant moved to vacate the judgment. She 

also moved again for a waiver of filing fees. The court granted her waiver 

motion in an October 25, 2021 order. In support of her motion to vacate the 

judgment, defendant certified she did not owe plaintiff anything because the 

amount allegedly owed was "based on two separate attorney charges where the 

services paid for were not received." She asserted she "had thoroughly filed 

disputes for all related charges, . . . [but] plaintiff still . . . ruled in the merchants' 
4 A-4001-21

favor." She indicated she had "provided the court with several exhibits that 

support[ed her] claim." 

 Defendant, however, did not include those exhibits in her appellate 

appendix. The only document she included regarding her motion to vacate the 

judgment was a one-page certification she had submitted in support of the 

motion. See R. 2:6-1(a)(1) ("The appendix prepared by the appellant . . . shall 

contain . . . (I) such other parts of the record . . . as are essential to the proper 

consideration of the issues . . . ."); State v. D.F.W., 468 N.J. Super. 422, 447 

(App. Div. 2021) (finding "[w]e are not 'obliged to attempt review of an issue 

when the relevant portions of the record are not included'" (quoting Cmty. Hosp. 

Grp., Inc. v. Blume Goldfaden Berkowitz Donnelly Fried & Forte, P.C., 381 N.J. 

Super. 119, 127 (App. Div. 2005))). 

 Plaintiff opposed the motion, pointing out defendant had not identified or 

otherwise described any excusable neglect explaining why she had not answered 

or otherwise responded to the complaint. Plaintiff also contended defendant had 

sought improperly to have plaintiff refund "charges when the unsatisfactory 

outcomes were received in each case, rather than completing fee dispute 

arbitrations as contemplated by New Jersey Rules and practice . . . ." 
5 A-4001-21

 In a November 23, 2021 order, the court denied defendant's motion to 

vacate default judgment, finding defendant had "failed to offer excusable 

neglect, or a meritorious defense as required by R[ule] 4:50-1." 

 On December 2, 2021, defendant moved to "[a]mend [j]udgment." In 

support of that motion, she submitted a certification in which conceded she had 

not addressed excusable neglect in her motion to vacate judgment, stated she 

had "offer[ed] excusable neglect" in her motion to vacate default,2 and faulted 

the court for not considering that motion. Defendant, however, acknowledged 

the court had denied the fee-waiver applications in connection with the motion 

to vacate default. She asserted that, with her motion to vacate judgment, she 

had provided the court with "[fifty] pages" supporting her claim she did not owe 

plaintiff anything. She did not include "[fifty] pages" of exhibits in the appellate 

record.3 

2

 In the certification in support of the motion to vacate default, defendant 

indicated she had experienced difficulty in attempting to utilize the Judiciary 

Electronic Document Submission (JEDS) system. She also asserted she had 

"filed [her] paperwork one day past the requested date on the civil action order" 

and that she received "the letter on May 19th" and had filed "the paperwork" 

thirty-four days later. She did not include in the appellate record a copy of the 

"civil action order," "the letter," or the "paperwork." 

3

 Defendant included in her appellate appendix three documents she labeled 

Exhibits A, B, and C. She did not identify the documents, if any, to which those 
6 A-4001-21

 In a February 22, 2022 order, the court denied defendant's motion to 

amend, finding again defendant had "failed to offer excusable neglect, or a 

meritorious defense as required by R[ule] 4:50-1." 

 On March 10, 2022, defendant again moved to "[a]mend [j]udgment." In 

support of the motion, she submitted a certification that was nearly identical to 

the certification she had submitted in support of her first motion to amend. In a 

May 10, 2022 order, the court denied that motion for the same reason it had 

denied her prior motions. 

 On appeal, defendant argues the trial court had "wrongfully rejected" her 

arguments and had "unjustly denied" her motions, "even though she showed 

adequate and supporting documentation." We disagree and affirm. 

 We note at the outset that although defendant labeled two of her motions 

as motions to "[a]mend [j]udgment," the clear intent of those motions was to 

vacate default judgment, not to amend or alter the judgment pursuant to Rule 

exhibits were attached or the motions, if any, those documents purportedly 

supported. Based on the date stamp placed on the documents by the trial court's

electronic filing system, defendant may have submitted Exhibit B, which 

appears to be a screenshot of the login page of the JEDS system, with her 

December 2, 2021 motion to amend. The date stamps placed on Exhibit A, 

which is a copy of emails defendant sent to plaintiff's counsel in March and May 

of 2021, and Exhibit C, which appears to be a page entitled "Dispute a credit 

charge" from the capitalone.com website, do not match the filing dates of the 

motions at issue in this appeal. 
7 A-4001-21

4:49-2. Accordingly, we consider the orders denying her motions to "[a]mend 

[j]udgment" as orders denying vacation of a default judgment. See Couri v. 

Gardner, 173 N.J. 328, 340 (2002) ("It is not the label placed on the action that 

is pivotal but the nature of the legal inquiry."). 

 A trial court's decision to grant or deny a motion to vacate default 

judgment will not be disturbed absent a clear abuse of discretion. U.S. Bank 

Nat. Ass'n v. Guillaume, 209 N.J. 449, 466-67 (2012); Hous. Auth. of 

Morristown v. Little, 135 N.J. 274, 283 (1994). To show an abuse of discretion, 

the moving party must demonstrate the decision was "'made without a rational 

explanation, inexplicably departed from established policies, or rested on an 

impermissible basis.'" Borough of Englewood Cliffs v. Trautner, 478 N.J. 

Super. 426, 437 (App. Div. 2024) (quoting Flagg v. Essex Cnty. Prosecutor, 171 

N.J. 561, 571 (2002)). 

 When a default judgment has been entered, the party seeking to vacate it 

"must meet the standard of Rule 4:50-1." Guillaume, 209 N.J. at 467. Defendant 

did not specify the subparagraph of Rule 4:50-1 on which she relied to support 

her motions. Given the substance of her arguments, subparagraph (a) appears 

to be the basis. Under Rule 4:50-1(a), a court may vacate a judgment due to 

"mistake, inadvertence, surprise, or excusable neglect." Defendant does not 
8 A-4001-21

claim any mistake, inadvertence, or surprise and therefore, under Rule 4:50-1(a), 

she was required to demonstrate "excusable neglect." Guillaume, 209 N.J. at 

468. "'Excusable neglect' may be found when the default was 'attributable to an 

honest mistake that is compatible with due diligence or reasonable prudence.'" 

Ibid. The moving party also must "prove the existence of a 'meritorious 

defense.'" Id. at 469 (quoting Little, 135 N.J. at 284). 

The court did not abuse its discretion by finding defendant had failed "to

offer excusable neglect." Defendant admittedly did not address excusable 

neglect in her September 27, 2021 motion to vacate the judgment. In her 

subsequent motions to amend, she referenced assertions she had made in a 

purported motion to vacate default that the court did not consider because she 

had not paid the required filing fee or obtained a waiver of fees. Even 

considering those assertions, plaintiff failed to establish excusable neglect. Her 

contentions regarding the filing of her unnamed "paperwork" are not supported 

in the record. The screenshot of the JEDS login page is just that: a screen shot

of the login page. It does not indicate she encountered any technical problems. 

And if she had, difficulty one day logging into the JEDS system does not rise to

the level of excusable neglect, especially when the login page she submitted sets 

forth in bold print the telephone number of the JEDS help desk. 
9 A-4001-21

Based on the record before us, we cannot conclude the court abused its

discretion by finding defendant had failed to "prove the existence of a 

'meritorious defense.'" Guillaume, 209 N.J. at 469 (quoting Little, 135 N.J. at

284). In her motions, defendant claimed she did not owe plaintiff anything 

based on her contention plaintiff had wrongfully rejected her challenge of creditcard charges submitted by two attorneys. In the certification in support of the 

motion to vacate the judgment, defendant indicated she "had thoroughly filed 

disputes for all related charges" and that she had "provided the court with several 

exhibits that support[ed her] claim." But the appellate record is devoid of those

documents. She did not include in her appellate appendix copies of the

"thoroughly filed disputes" she had submitted to plaintiff or the "several exhibits 

that support[ed her] claim." Presented with only her bald assertion that plaintiff 

had wrongfully decided her charge dispute, we perceive no abuse of discretion 

in the court's finding she did not establish the existence of a meritorious defense. 

Because defendant failed to establish the court had abused its discretion 

by denying her motions, we affirm the November 23, 2021 order denying the

motion to vacate the judgment, the February 22, 2022 order denying the first 

motion to amend, and the May 10, 2022 order denying the second motion to

amend. We, however, take this opportunity to remand the case so the trial court 
10 A-4001-21

may correct an error in the judgment defendant did not raise on appeal. The

judgment included a $255.22 counsel-fee award, even though plaintiff in its

submission had expressly "waive[d] statutory attorney fees" and requested that 

the court "not award statutory attorney fees." To correct that error, we remand 

the case to the trial court and direct the court to issue an amended judgment in

the amount of $12,093.07, which represents the balance due of $12,011.07 and 

costs of $82. 

Affirmed; remanded for the issuance of an amended judgment. We do not

retain jurisdiction.