NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0562-12T4

MIDLAND FUNDING LLC,

Plaintiff-Respondent,

v.

CARL ALBERN, JR.,

Defendant-Appellant.

_________________________________________________________

Submitted December 3, 2013 – Decided

Before Judges Fisher, Espinosa and Koblitz.

On appeal from the Superior Court of New 

Jersey, Law Division, Monmouth County, 

Docket No. L-2833-11.

Carl Albern Jr., appellant pro se.

Pressler and Pressler, L.L.P., attorneys for 

respondent (Lawrence J. McDermott, Jr., on 

the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

This appeal presents a procedural question: is a 

defendant, who, in responding to a complaint, moved for 

dismissal but did not file an answer after the motion was 

denied, entitled to notice of a plaintiff's request for default? 

Because the applicable rules of procedure do not expressly 

December 23, 2013

APPROVED FOR PUBLICATION

December 23, 2013

APPELLATE DIVISION
2 A-0562-12T4

authorize an ex parte request for default in this unusual 

circumstance, and because the rules are based on a policy 

favoring the disposition of cases on their merits, we reverse 

the denial of defendant's Rule 4:50 motion to vacate both the 

default and the default judgment later entered.

I

On June 15, 2011, plaintiff Midland Funding LLC commenced 

this action against defendant Carl Albern, Jr., on an alleged 

outstanding credit card account. The summons contained the 

customary admonition that defendant was required to answer or 

otherwise move within the time allotted or default would be 

entered against him. Defendant timely responded by filing a pro 

se motion to dismiss, which was denied on October 6, 2011. The 

judge's order did not specify a time within which defendant was 

required to file an answer nor did it refer to defendant's need 

to file an answer. Rule 4:6-1(b) allots ten days to file an 

answer after denial of a motion to dismiss. Defendant did not 

file an answer within that time period.

On December 1, 2011, plaintiff submitted to the Clerk an ex

parte application for entry of default, claiming "no defendant 

named herein has answered or otherwise moved." This 

representation was incorrect because, as mentioned, defendant 

had "otherwise moved," albeit unsuccessfully. Plaintiff did 
3 A-0562-12T4

correctly assert that defendant had not filed an answer and the 

time to do so had expired. Default was entered against 

defendant in early December 2011.

1

Although not included in either party's appendix, we are 

told plaintiff applied for the Clerk's entry of default judgment 

on March 15, 2012. Whatever plaintiff submitted at the time was 

apparently also served on defendant, who quickly submitted 

written opposition to the Clerk on March 19, 2012, claiming: he 

had not been served with an application to enter default; he had 

"filed an answer in the form of a motion to dismiss"; and 

plaintiff did not have standing to sue. The Clerk entered 

default judgment against defendant in the amount of $19,366.77, 

with costs taxed in the amount of $269.12, on March 21, 2012. 

We assume the Clerk did not consider – perhaps she did not 

receive – defendant's written response because defendant's

opposition was not mentioned in the judgment and because the 

normal course, upon receipt of opposition, would have required 

the Clerk to refer the matter to the court for disposition.

On May 14, 2012, shortly after plaintiff sought discovery 

of defendant's assets, defendant moved for relief pursuant to 

 

1The copy of the pleading contained in the appendix is only 

partially legible and does not reveal the date default was 

entered. The judge's August 6, 2012 written opinion notes that 

default was entered on December 6, 2011.
4 A-0562-12T4

Rule 4:50-1. The trial judge denied this motion for reasons set 

forth in a written opinion, concluding that defendant had not 

shown his failure to file an answer was excusable because he 

should have understood his earlier unsuccessful motion would not 

be viewed as an answer. The judge also determined that 

defendant failed to present a meritorious defense, finding the

allegation of plaintiff's lack of standing insufficient in this 

regard.

2

II

In this pro se appeal, defendant argues: (1) an ex parte 

application for entry of default in these circumstances was not 

permitted; (2) he was wrongfully denied oral argument on the 

return date of his Rule 4:50-1 motion; (3) the trial judge held 

him "to a more stringent standard" than plaintiff; and (4) 

plaintiff "has provided no credible evidence that [it] ha[d] 

standing to file this action." Because we agree plaintiff was 

not entitled to apply for default without notifying defendant 

and because defendant presented a meritorious defense – even 

though he was not obligated to do so under these circumstances –

 

2That is, we discern from the record that the judge did not 

reject the standing argument on its merits, but only held that 

it did not constitute an adequate defense to plaintiff's claim.
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we reverse without considering defendant's second and third 

points.

A

Although the trial judge couched defendant's motion as 

resting on the excusable-neglect provision in Rule 4:50-1(a), 

the essence of the motion was that plaintiff had proceeded 

improperly in seeking default. Accordingly, the motion more 

logically rested on the void-judgment provision in Rule 4:50-

1(d).

3 We thus look to the procedure adopted by plaintiff in 

seeking defendant's default.

Default was sought on the basis of Rule 4:43-1, which 

allows a plaintiff to make an ex parte request of the Clerk for 

default if the defendant "has failed to plead or otherwise 

defend as provided by these rules or court order, or if the 

answer has been stricken with prejudice." Defendant fit neither 

of these two descriptions. He had "otherwise defend[ed]" 

because he had moved for dismissal, and he was not "a party . . 

. [whose] answer ha[d] been stricken with prejudice" because he 

had not filed an answer. Defendant's peculiar status as a party 

who had once defended but did not answer is not expressly 

 

3Regardless of those provisions upon which defendant expressly 

based his motion, the court was required to apply those that 

were actually implicated by the motion. Baumann v. Marinaro, 95 

N.J. 380, 390 (1984).
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encompassed by Rule 4:43-1.4 Because that rule delineates all 

the circumstances upon which an ex parte default may be 

requested, it stands to reason that plaintiff was required to 

request default by motion on notice to defendant.

Our procedural rules were designed to be "a means to the 

end of obtaining just and expeditious determinations between the 

parties on the ultimate merits," Ragusa v. Lau, 119 N.J. 276, 

284 (1990) (quoting Tumarkin v. Friedman, 17 N.J. Super. 20, 27 

(App. Div. 1951), certif. denied, 9 N.J. 287 (1952)), a policy

that requires rejection of plaintiff's invitation to interpret 

Rule 4:43-1 broadly. The absence of express authority in Rule

4:43-1, in light of the "strong preference for adjudication on 

the merits rather than final disposition for procedural 

reasons," Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 356 

(2001) (quoting Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. 

Super. 198, 207 (App. Div. 2000)), demands that the unauthorized 

ex parte default – and the subsequent judgment based on that 

default – be vacated and that defendant be given an opportunity 

to file an answer and defend against plaintiff's claim.

 

4Whether we have properly interpreted the breadth of Rule 4:43-1 

is a matter which the Supreme Court's Civil Practice Committee 

may wish to consider.
7 A-0562-12T4

B

We further observe that defendant took the position his 

motion constituted an answer to the complaint. The trial judge 

held that defendant's assumption was not reasonable or 

excusable; defendant could not, in the judge's view, reasonably 

believe his motion constituted an answer mainly because the 

motion was denied. We conclude that the judge too strictly 

interpreted defendant's actions and his reasonable expectations 

in the aftermath of the denial of the motion to dismiss.

The motion to dismiss asserted plaintiff lacked standing to 

sue, and the judge – in denying that motion – certainly never 

ruled on the merits of the standing question. Instead, the 

judge first wrote in the margin of the order that "the complaint 

on its face sets forth a cause of action and [d]efendant's 

motion must thus be denied." The second and last sentence of 

this handwritten decision requires closer analysis. That 

sentence referred to the rejected text of defendant's proposed 

order, which sought from plaintiff, among other things, "the 

actual contract of assignment," the contract upon which the 

claim was based, and "the original creditor[']s last billing 

statement." In the second and last sentence of the judge's 

written disposition of the motion to dismiss, she concluded: 

"Defendant may receive the documents upon which [p]laintiff 
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relies in this matter in discovery, upon request by 

[d]efendant."

Although an attorney would understand, upon denial of the 

dismissal motion, that defendant was still required to file an 

answer and any affirmative defenses, it was not unreasonable for 

this pro se defendant to assume nothing further was required of 

him in light of the judge's ruling on standing, and it was not 

unreasonable for defendant to assume from the order that the 

parties would thereafter engage in discovery.

5 See Rubin v. 

Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982) (recognizing 

that, although pro se litigants are not entitled to greater 

rights than represented litigants, due process principles permit 

the imposition of a procedural bar only after consideration of 

the pro se litigant's "reasonabl[e] expect[ations]" about what 

had occurred). This circumstance formed a sound basis for 

relief pursuant to the excusable-neglect provision in Rule 4:50-

1(a). In short, the judge was required but failed to liberally 

indulge defendant's assertions "to the end that a just result is 

reached." Marder v. Realty Constr. Co., 84 N.J. Super. 313, 319 

(App. Div.), aff’d, 43 N.J. 508 (1964); see also Mancini v. EDS 

 

5The order denying the motion to dismiss neither directed the 

filing of an answer nor set forth a deadline for that filing.
9 A-0562-12T4

ex rel. N.J. Auto. Full Ins. Underwriting Ass'n, 132 N.J. 330, 

334 (1993).

C

The trial judge also denied defendant's Rule 4:50-1 motion 

because she determined defendant had not presented a meritorious 

defense. In seeking relief from a void judgment, however, a 

movant is not required to demonstrate a meritorious defense. 

See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86, 108 S. 

Ct. 896, 899-900, 99 L. Ed. 2d 75, 81-82 (1988); City of Passaic 

v. Shennett, 390 N.J. Super. 475, 486 (App. Div. 2007). But, 

even if we were to conclude otherwise, defendant's claim of 

plaintiff's lack of standing constituted a legitimate defense to 

the claim asserted in plaintiff's complaint.

III

For these reasons, we reverse the order denying defendant's 

motion to vacate the default and the default judgment, and we 

remand for entry of an order providing defendant with a fair and 

adequate time to file an answer to the complaint.

Reversed and remanded. We do not retain jurisdiction.