Delmarva Auto Fin. Services v. White

100 A.3d 1059, 2014 WL 4960667
CourtSuperior Court of Delaware
DecidedAugust 15, 2014
DocketNos. SK02J-06-101, SK05J-08-027, SK08J-03-100, SK09J-04-117
StatusPublished
Cited by3 cases

This text of 100 A.3d 1059 (Delmarva Auto Fin. Services v. White) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Delmarva Auto Fin. Services v. White, 100 A.3d 1059, 2014 WL 4960667 (Del. Ct. App. 2014).

Opinion

OPINION AND ORDER

WTTHAM, R.J.

INTRODUCTION

The issue before the Court is whether, after five years, judgments transferred from the Court of Common Pleas to the Superior Court may be executed on (ie., refreshed) by motion or by writ of scire facias, otherwise known as an order for a rule to show cause.

BACKGROUND

Before the Court are four motions to allow execution on judgments from four separate cases. All of the cases involve unrepresented debtor-defendants, none of whom have appeared to challenge the motions. The creditor-plaintiffs in each case are represented by the same attorney. The specific facts of each case are largely the same; in each case, the plaintiff received a default judgment against the defendant in the Court of Common Pleas. The plaintiffs then transferred the judgments to the Superior Court, where they have since remained until the plaintiffs filed the instant motions.

Two of the cases at bar, Wells Fargo Bank Cards v. Harper and Cach LLC v. Miller, need not be addressed because the plaintiffs in those cases have already timely executed upon their judgments within five years. Accordingly, the motions in those cases are moot and the respective plaintiffs may proceed to execute on their judgments. The plaintiffs in Delmarva Auto Financial Services v. White and Delaware Acceptance Corporation v. Little did not execute on their judgments within five years. In White, nearly twelve years have passed between when the judgment was transferred to this Court from the Court of Common Pleas and the filing of the plaintiffs motion to allow execution. Due to the accrual of interest over time, the judgment in White, which was originally slightly over $6,500, is now over $21,000. In Little, over eight years have elapsed between the date of transfer and the filing [1061]*1061of the motion. The judgment in Little was originally over $14,000; the Court does not have before it the present value of the judgment because it is not mentioned in the plaintiffs motion.

The plaintiffs seek to allow execution on their respective judgments via motion, rather than by writ of scire facias. The required procedure for executing upon judgments transferred to the Superior Court from the Court of Common Pleas was addressed by this Court in Platinum Financial Services v. Colbert.1 In Colbert, the plaintiff, relying on 10 Del. C. § 5072 and after more than ten years had passed from the date when it transferred its judgment from the Court of Common Pleas, sought to allow execution on its judgment via motion rather than by writ of scire facias.2 This Court, based on its interpretation of the historical policies and practices underlying writs of scire facias as set forth in Victor Woolley’s treatise, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware (hereinafter “Woolley”), concluded: (1) that 10 Del. C. § 5073 was the proper statute to apply to judgments transferred from the Court of Common Pleas; and (2) both §§ 5072 and 5073 implicitly required that such judgments be revived after five years through writ of scire facias.3

More recently, the Delaware Supreme Court was confronted with this issue in

Knott v. LVNV Funding, LLC.4 The Supreme Court found that reviving a judgment after five years via motion was the proper procedure under § 5072, but further concluded that § 5073 was “likely the relevant statute that applied” to judgments transferred to the Superior Court from the Court of Common Pleas.5 The Court further observed that under § 5073, “it may be that the judgment creditor is required to proceed by using a writ of scire facias, and cannot proceed through motion practice under [Superior Court Civil] Rule 64.1.”6 Despite these observations, the Supreme Court did not conclusively resolve these issues because the appellant in Knott did not properly raise them below.7

This Court heard each of the instant motions on June 27, 2014, shortly after the Supreme Court issued its decision in Knott. Plaintiffs’ counsel — who, it is worth noting, represented the plaintiff-ap-pellee in Knott — candidly discussed with the Court the uncertainty surrounding the procedure for executing on a judgment transferred from the Court of Common Pleas after five years following the Knott decision. Counsel agreed to consolidate the cases in the interest of judicial efficiency, and at the Court’s request submitted a memorandum in support of his position that creditors need only proceed via motion practice rather than writ of scire faci-as to execute on judgments after five years.8

[1062]*1062Neither defendant in White nor Little has opted to argue the motions filed against them. Thus, the Court could exercise its discretion to simply grant the plaintiffs’ motions instead of addressing what the proper procedure is in cases such as this. However, given the somewhat complex issues implicated in this case involving procedure, statutory construction, and the interplay between statutory authority and this Court’s rules of procedure, the Court believes it would be helpful to resolve these issues now. If the Court did not address this issue now, judgment creditors would be left to guess as to what procedure to follow in the wake of Knott. Indeed, counsel has indicated to the Court a preference that, should the Court find that writs of scire facias are required after five years, the Court issue a written opinion so that counsel can appeal the decision and have the Supreme Court resolve what procedure is required. After careful consideration, the Court finds this to be the most appropriate course of action.

As discussed below, the Court concludes that Knott did not entirely overrule or supplant Colbert. For the same reasons articulated in Colbert, the Court finds that § 5073 applies to judgments transferred from the Court of Common Pleas, and by the statute’s express language, a writ of scire facias is required after five years before a judgment can be executed upon. In anticipation of an appeal, the Court shall describe in detail: the development of execution practice in Delaware according to Woolley; the applicable statutes and rules; the Knott and Colbert. decisions; and the basis for and reasons behind the Court’s ruling in the instant case.9

DISCUSSION

Development of execution practice in Delaware

The starting point for any inquiry into execution practice is traditionally Woolley’s treatise.10 At common law, it was the early practice in Delaware that if a judgment was not executed upon within a year and a day from when judgment was entered, it was necessary to revive the judgment via writ of scire facias.11 A writ of scire facias

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Cite This Page — Counsel Stack

Bluebook (online)
100 A.3d 1059, 2014 WL 4960667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delmarva-auto-fin-services-v-white-delsuperct-2014.