IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THE BANK OF NEW YORK MELLON ) F/K/A THE BANK OF NEW YORK, AS ) TRUSTEE (CWABs 2006-SD2 ) Plaintiff, ) ) v. ) C.A. No. N16L-08-119 ALR ) JEFFRY S. PEARSON ) THE UNITED STATES OF AMERICA ) Defendant. )
Submitted: August 18, 2017 Decided: August 23, 2017
Upon Plaintiff’s Motion for Enlargement of Time GRANTED
ORDER
This is a mortgage foreclosure action involving property located at 806 North
Madison Street, Wilmington, Delaware (“Property”). According to Plaintiff, on
October 25, 2005, Defendant Jeffry S. Pearson (“Defendant Pearson”) executed and
delivered a Mortgage for the Property in favor of Best Rate Funding Corp. which
assigned its interest in the Mortgage to the Bank of New York, as Trustee, who in
turn assigned its interest in the Mortgage to the Bank of New York Mellon
(“Plaintiff”).
On August 21, 2016, Plaintiff filed a Complaint against Defendant Pearson
alleging that Defendant Pearson failed to pay monthly installments on the Mortgage. Plaintiff alleges that Plaintiff informed Defendant Pearson that Plaintiff intended to
accelerate the balance owed on the Mortgage if arrearages remained unpaid.
Plaintiff requests the principal sum remaining on the Mortgage ($95,172.39),
in addition to interest, late charges and legal fees. In his Answer, Defendant stated
a general objection and an affirmative defense of lack of personal jurisdiction for
failure to effect service of the Complaint within 120 days, as required by Superior
Court Civil Rule 4(j).
Plaintiff filed the Motion for Enlargement of Time for Service of Complaint
(“Motion”). Although Plaintiff concedes that Plaintiff did not properly serve process
within the 120 days required under Rule 4(j), Plaintiff contends that there is good
cause to excuse Plaintiff’s failure. Specifically, Plaintiff requests an extension of
time until January 17, 2017, the date on which service was accomplished. Defendant
Pearson opposes Plaintiff’s Motion. On July 18, 2017, the parties appeared for a
hearing on Plaintiff’s Motion and the Court considered argument. Thereafter, the
parties supplemented the record.
Upon consideration of Plaintiff’s Motion and Defendant Pearson’s opposition
thereto; the facts, arguments, and legal authorities set forth by the parties; the
Superior Court Civil Rules; statutory and decisional precedent; and the entire record
in this case, the Court hereby finds as follows:
2 1. Service of process is required within 120 days after a complaint is filed.
Superior Court Civil Rule 4(j) provides:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
2. A showing of “good cause” under Rule 4(j) requires Plaintiff to
demonstrate “good faith and excusable neglect” for the failure to comply with the
120-day time limit.1 Consistent with Delaware’s policy in favor of decisions on the
merits,2 Rule 4(j) seeks to “balance the need for speedy, just and efficient litigation
with a desire to provide litigants their right to a day in court.”3
3. “While ‘good cause’ is not defined within [Rule 4(j)], it has been
interpreted by Federal Courts to require a showing of excusable neglect, by a
‘demonstration of good faith on the part of the party seeking an enlargement and
some reasonable basis for noncompliance within the time specified in the rules.’”4
1 Larimore v. Stella, 2003 WL 22064107, at *2 (Del. Aug. 29, 2003). 2 See Keener v. Isken, 58 A.3d 407, 409 (Del. 2013) (citing Tsipouras v. Tsipouras, 677 A.2d 493, 496 (Del. 1996)) (noting the public policy in favor of trials on the merits); Waterhouse v. Hollingsworth, 2013 WL 5803136, at *3 (Del. Super. Oct. 10, 2013) (“Delaware has a strong public policy favoring resolution of cases on their merits.”). 3 Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998); see Wass v. Calloway, 1996 WL 190020, at *3 (Del. Super. Feb. 21, 1996). 4 Dolan, 707 A.2d at 36 (quoting Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988)). 3 Excusable neglect is “neglect which might have been the act of a reasonable prudent
person under the circumstances.”5 In contrast, failure to perfect service as a result
of mistake, inadvertence, or “half-hearted” efforts does not qualify as excusable
neglect.6
4. Plaintiff claims that the failure to perfect service within the 120-day
deadline was the result of excusable neglect and relies upon Superior Court Civil
Rule 6(b), which provides in relevant part:
When by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion … (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect …
5. The Complaint was filed on August 21, 2016. The 120-day deadline
expired on December 19, 2016. It is not disputed that service of process was
accomplished on Defendant Pearson on January 17, 2017, which is more than 120
days after the Complaint was filed.7
5 Id. (citing Cohen v. Brandywine Raceway Assoc., 238 A.2d 320, 325 (Del. Super. 1968)). 6 Wass, 1996 WL 190020, at *3 (citing Braxton v. United States, 817 F.2d 238, 242 (3d Cir. 1987)). 7 The United States of America is also a Defendant in this action in connection with federal tax liens on the Property. On September 15, 2016, process was served on Defendant the United States of America who has not appeared in the action.
4 6. The Court finds that Plaintiff made diligent efforts to accomplish
service within the time specified by Rule 4(j):
On October 3, 2016, the Sherriff’s Office filed an affidavit of service
indicating eight unsuccessful attempts to serve process on Defendant
Pearson at the Property.
On November 10, 2016, Plaintiff filed an Alias Praecipe with respect
to Defendant Pearson and provided an alternative business address for
service of process in Philadelphia, Pennsylvania.
Two alias writs were issued by the Prothonotary on December 6, 2016,
almost a full month after they were requested.
The Sheriff returned service non-est with respect to Defendant Pearson
attempted on December 27, 2016, which were docketed on January 18
and 19, 2017.
Plaintiff understood that service was accomplished under the long-arm
statute at a Philadelphia business address on January 9, 2017. Plaintiff
filed an Affidavit of Service on January 10, 2017 indicating that
Defendant Pearson was successfully served process by registered mail
at the alternative Philadelphia address. A signed return receipt
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
THE BANK OF NEW YORK MELLON ) F/K/A THE BANK OF NEW YORK, AS ) TRUSTEE (CWABs 2006-SD2 ) Plaintiff, ) ) v. ) C.A. No. N16L-08-119 ALR ) JEFFRY S. PEARSON ) THE UNITED STATES OF AMERICA ) Defendant. )
Submitted: August 18, 2017 Decided: August 23, 2017
Upon Plaintiff’s Motion for Enlargement of Time GRANTED
ORDER
This is a mortgage foreclosure action involving property located at 806 North
Madison Street, Wilmington, Delaware (“Property”). According to Plaintiff, on
October 25, 2005, Defendant Jeffry S. Pearson (“Defendant Pearson”) executed and
delivered a Mortgage for the Property in favor of Best Rate Funding Corp. which
assigned its interest in the Mortgage to the Bank of New York, as Trustee, who in
turn assigned its interest in the Mortgage to the Bank of New York Mellon
(“Plaintiff”).
On August 21, 2016, Plaintiff filed a Complaint against Defendant Pearson
alleging that Defendant Pearson failed to pay monthly installments on the Mortgage. Plaintiff alleges that Plaintiff informed Defendant Pearson that Plaintiff intended to
accelerate the balance owed on the Mortgage if arrearages remained unpaid.
Plaintiff requests the principal sum remaining on the Mortgage ($95,172.39),
in addition to interest, late charges and legal fees. In his Answer, Defendant stated
a general objection and an affirmative defense of lack of personal jurisdiction for
failure to effect service of the Complaint within 120 days, as required by Superior
Court Civil Rule 4(j).
Plaintiff filed the Motion for Enlargement of Time for Service of Complaint
(“Motion”). Although Plaintiff concedes that Plaintiff did not properly serve process
within the 120 days required under Rule 4(j), Plaintiff contends that there is good
cause to excuse Plaintiff’s failure. Specifically, Plaintiff requests an extension of
time until January 17, 2017, the date on which service was accomplished. Defendant
Pearson opposes Plaintiff’s Motion. On July 18, 2017, the parties appeared for a
hearing on Plaintiff’s Motion and the Court considered argument. Thereafter, the
parties supplemented the record.
Upon consideration of Plaintiff’s Motion and Defendant Pearson’s opposition
thereto; the facts, arguments, and legal authorities set forth by the parties; the
Superior Court Civil Rules; statutory and decisional precedent; and the entire record
in this case, the Court hereby finds as follows:
2 1. Service of process is required within 120 days after a complaint is filed.
Superior Court Civil Rule 4(j) provides:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion.
2. A showing of “good cause” under Rule 4(j) requires Plaintiff to
demonstrate “good faith and excusable neglect” for the failure to comply with the
120-day time limit.1 Consistent with Delaware’s policy in favor of decisions on the
merits,2 Rule 4(j) seeks to “balance the need for speedy, just and efficient litigation
with a desire to provide litigants their right to a day in court.”3
3. “While ‘good cause’ is not defined within [Rule 4(j)], it has been
interpreted by Federal Courts to require a showing of excusable neglect, by a
‘demonstration of good faith on the part of the party seeking an enlargement and
some reasonable basis for noncompliance within the time specified in the rules.’”4
1 Larimore v. Stella, 2003 WL 22064107, at *2 (Del. Aug. 29, 2003). 2 See Keener v. Isken, 58 A.3d 407, 409 (Del. 2013) (citing Tsipouras v. Tsipouras, 677 A.2d 493, 496 (Del. 1996)) (noting the public policy in favor of trials on the merits); Waterhouse v. Hollingsworth, 2013 WL 5803136, at *3 (Del. Super. Oct. 10, 2013) (“Delaware has a strong public policy favoring resolution of cases on their merits.”). 3 Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998); see Wass v. Calloway, 1996 WL 190020, at *3 (Del. Super. Feb. 21, 1996). 4 Dolan, 707 A.2d at 36 (quoting Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988)). 3 Excusable neglect is “neglect which might have been the act of a reasonable prudent
person under the circumstances.”5 In contrast, failure to perfect service as a result
of mistake, inadvertence, or “half-hearted” efforts does not qualify as excusable
neglect.6
4. Plaintiff claims that the failure to perfect service within the 120-day
deadline was the result of excusable neglect and relies upon Superior Court Civil
Rule 6(b), which provides in relevant part:
When by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion … (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect …
5. The Complaint was filed on August 21, 2016. The 120-day deadline
expired on December 19, 2016. It is not disputed that service of process was
accomplished on Defendant Pearson on January 17, 2017, which is more than 120
days after the Complaint was filed.7
5 Id. (citing Cohen v. Brandywine Raceway Assoc., 238 A.2d 320, 325 (Del. Super. 1968)). 6 Wass, 1996 WL 190020, at *3 (citing Braxton v. United States, 817 F.2d 238, 242 (3d Cir. 1987)). 7 The United States of America is also a Defendant in this action in connection with federal tax liens on the Property. On September 15, 2016, process was served on Defendant the United States of America who has not appeared in the action.
4 6. The Court finds that Plaintiff made diligent efforts to accomplish
service within the time specified by Rule 4(j):
On October 3, 2016, the Sherriff’s Office filed an affidavit of service
indicating eight unsuccessful attempts to serve process on Defendant
Pearson at the Property.
On November 10, 2016, Plaintiff filed an Alias Praecipe with respect
to Defendant Pearson and provided an alternative business address for
service of process in Philadelphia, Pennsylvania.
Two alias writs were issued by the Prothonotary on December 6, 2016,
almost a full month after they were requested.
The Sheriff returned service non-est with respect to Defendant Pearson
attempted on December 27, 2016, which were docketed on January 18
and 19, 2017.
Plaintiff understood that service was accomplished under the long-arm
statute at a Philadelphia business address on January 9, 2017. Plaintiff
filed an Affidavit of Service on January 10, 2017 indicating that
Defendant Pearson was successfully served process by registered mail
at the alternative Philadelphia address. A signed return receipt
indicating completion of service on January 9, 2017 was attached as
“Exhibit B” to Plaintiff’s Affidavit. However, Defendant Pearson
5 contends that the address used for service in Philadelphia was not a
good address for him. According to Defendant Pearson, when he
practiced law in Pennsylvania, he had a business address at 1800 John
F. Kennedy Boulevard, Suite 300- #19 whereas an individual accepted
service of process at 1800 John F. Kennedy Boulevard, Suite 1900.
On January 17, 2017, notice of the foreclosure action was posted on the
Property.
7. Service was accomplished at least by January 17, 2017, after expiration
of the 120 days on December 19, 2016, pursuant to Super. Ct. Civ. R. 4(f)(4) which
provides:
In actions begun by scire facias, 2 returns without service of 2 consecutive writs, being the original writ and an alias writ, followed by a certification by the sheriff that he has posted a copy of the alias writ on the subject property and has mailed a copy of the alias writ by both certified mail, return receipt requested, and first class mail to the last known address (as stated in the praecipe) of the defendants, shall constitute legal and sufficient service.
8. The record in this case demonstrates that Plaintiff’s efforts have been
diligent. Plaintiff has demonstrated excusable neglect by persistent attempts to serve
Defendant, issuing of several writs, and filing of the Motion to extend the time for
service.8
8 See Wass, 1996 WL 190020, at *3–4. 6 9. Defendant Pearson’s reliance on Doe v. Catholic Diocese of
Wilmington to support his jurisdictional objection is misplaced. The plaintiff in Doe
did not take any steps to effect service on the defendant until the day before the 120-
day deadline expired. 9 The Court held that plaintiff did not make “all possible
efforts” to comply with Rule 4(j) let alone make a diligent effort.10 In contrast,
Plaintiff in this case made reasonable and diligent efforts to perfect service on
Defendant and has demonstrated good cause for the lack of timely service.
Defendant also relies upon Anticaglia v. Benge,11 which is also distinguishable. The
plaintiff in Anticaglia knew that the defendant was not served but still took no action
for almost five months, well after the 120-day deadline expired.12 Here, on the other
hand, Plaintiff was unable to timely perfect service on Defendant despite genuine
and persistent efforts. This is not a case where no action was taken after the first
attempt at service failed. Moreover, Plaintiff missed the 120-day deadline by
twenty-nine days, not several months.
10. For the reasons discussed, the Court finds that Plaintiff made diligent
efforts to serve Defendant within 120-days and that the failure to do so was the result
of excusable neglect.
9 Doe v. Catholic Diocese of Wilmington, Inc., 2010 WL 2106181, at *1 (Del. Super. May 26, 2010). 10 Id. 11 Anticaglia v. Benge, 2000 WL 145822, at *1 (Del. Super. Jan. 20, 2000). 12 Id. 7 NOW, THEREFORE, this 23rd day of August, 2017, Plaintiff’s Motion
for Enlargement of Time for Service of Complaint is hereby GRANTED and
time for service is hereby enlarged through January 17, 2017.
IT IS SO ORDERED.
Andrea L. Rocanelli ______________________________
The Honorable Andrea L. Rocanelli