07-2-8401Tehrani v. Pembroke Holdings, LLC, App. Div. (Ostrer, J.A.D.) (13 pp.) Defendants Karlene Rawle-Walters, Tennyson Walters, Karlene Rawle-Walters, Attorney at Law, PC, Pembroke Holdings LLC, Pembroke Group, Inc. and Pembroke Management Co., Inc. appealed from the trial court’s order denying their motion to vacate a default judgment entered in favor of plaintiff. Beginning in 2003, plaintiff loaned significant sums of money to one or more of the defendants to fund their acquisition of real estate in New Jersey. The apparent plan was for the defendant entities to improve the properties and resell them after a relatively brief period of time. Plaintiff was promised an 18 percent return on her investment. Documents indicated that plaintiff would be provided a first lien position against real estate property. Plaintiff made several loans and was repaid the promised interest. However, in October 2007, interest payments on subsequent loans plaintiff made abruptly ceased. Plaintiff discovered that she did not hold a first lien on those properties. Plaintiff and three other investors filed a complaint alleging breach of contract, which was amended to add claims that included fraud and legal malpractice. On April 21, 2010, Rawle-Walters and Walters filed a joint voluntary Chapter 7 bankruptcy petition. The court entered a final order of default judgment on Sept. 7, 2010, holding the defendants jointly and severally liable for breach of contract and fraud. The appellate panel affirmed the denial of defendants’ motion to vacate default, finding the motion was untimely. The automatic stay of plaintiff’s state court action against defendants terminated when the Bankruptcy Court entered its final order declaring Rawle-Walters’ and Walters’ debt to plaintiff to be non-dischargeable. Contrary to defendants’ contention, their motion for reconsideration did not revive and extend the automatic stay with respect to statutes of limitation. Rather, a party has 30 days to file an action against which the limitations period has otherwise run. In this case, after adding that 30 days, the time period for filing the motion expired on Oct. 7, 2011. Defendants also misplaced reliance on 11 U.S.C.A. §108(c)(2) for the proposition that the bankruptcy filing tolled and extended the time period for filing a motion under Rule 4:50-1.
15-2-8410 Mercedes-Benz Fin. Servs. USA LLC v. A.N. Title Agency, App. Div. (per curiam) (4 pp.) Defendant Zbigniew Cichy appealed from the order denying his Rule 4:50-1 motion to vacate an order enforcing litigant’s rights. This matter stemmed from a retail installment contract for the purchase of a 2006 Mercedes Benz by defendants A.N. Title Agency LLC and Cichy. Defendants failed to make the required payments. Plaintiff declared the contract in default and demanded possession of the vehicle. Defendant claimed that the motion judge abused his discretion in denying the motion because he did not apply the appropriate legal standard and did not consider the factors that warranted relief including mistake, fraud and exceptional circumstances. Plaintiff commenced a replevin action against defendants. The Law Division granted plaintiff’s motion for summary judgment against both defendants and awarded plaintiff possession of the vehicle and a money judgment. Plaintiff’s motion for an order and writ of replevin was granted. The court issued a writ of possession awarding plaintiff immediate possession of the vehicle. Cichy was deposed and testified that he did not know where the car was, referring to it as a “phantom car.” Plaintiff’s motion to enforce litigant’s rights was granted and the order required Cichy to turn over the vehicle within ten days and provided that failure to comply would result in the issuance of an arrest warrant. The appellate panel agreed with the motion judge that through the motion to vacate Cichy was attempting to use Rule 4:50-1 to reargue his opposition to the summary judgment motion on the merits. The judge correctly noted that the judgment against Cichy was not vacated or appealed and remains valid. The panel affirmed the order denying defendant’s motion to vacate.
