Fluharty v. Household Automotive Finance (In re Boyd)

347 B.R. 524
District Court, N.D. West Virginia·Decided August 17, 2006·No. Bankruptcy No. 04-4296; Adversary No. 05-79·Published·Cited by 1 cases

Opinion

MEMORANDUM OPINION

PATRICK M. FLATLEY, Bankruptcy Judge.

HSBC Automotive Finance, f/k/a Household Automotive Finance (“HSBC”), seeks relief from the default judgment entered in this case on September 15, 2005, pursuant to the “excusable neglect” standard of Fed.R.Civ.P. 60(b)(1), as made applicable to bankruptcy proceedings by Fed. R. Bankr.P. 9024. The Chapter 7 trustee, Thomas H. Fluharty (the “Trustee”), opposes the motion on the grounds that HSBC has not met the applicable standard to vacate the courts’s default judgment.

For the reasons stated herein, the court will deny the motion.

I. BACKGROUND

On November 1, 2004, Anthony Scott Boyd and Tawnya Dawn Boyd (the “Debtors”) purchased a 2004 Chevy Classic. HSBC financed the purchase and noted its interest on the vehicle’s certificate of title on November 16, 2004. When the Debtors filed their Chapter 7 bankruptcy on December 8, 2004, the Trustee made one written attempt and two attempts by telephone to obtain a copy of the security agreement that granted HSBC an interest in the vehicle.1 When the Trustee did not receive a copy of the security agreement, he filed an adversary proceeding against HSBC on May 9, 2005, to avoid the lien of HSBC on the vehicle as being a preferential transfer under 11 U.S.C. § 547.

The Trustee served the adversary complaint on The Ramsey Law Firm, Corporation Department, in Arlington, Texas, by certified mail and the return receipt shows that the mailing was received by The Ramsey Law Firm on May 26, 2005.2 HSBC missed its June 10, 2005 answer deadline. On September 13, 2005, the Trustee filed his motion for default judgment, which was also served on The Ramsey Law Firm, and the court subsequently entered the default judgment.

Notwithstanding entry of the default judgment, the Debtors continued making payments to HSBC until April 2006. Over eight months after entry of the default [526] judgment, on June 2, 2006, the Trustee file a motion to sell the Debtors’ 2004 Chevy Classic. On June 29, 2006, HSBC objected to the proposed sale on the basis that it had a properly perfected security interest in the vehicle.

II. DISCUSSION

HSBC argues the September 15, 2005 default judgment against it should be vacated on the basis that the servicer of its loan Ascension Capital Group, LLC (“Ascension”), “through inadvertence and mistake failed to respond to the complaint,” and that the procedures it had in place, while sufficient to avoid the problem, were not followed in this case. At most, HSBC contends, its “failure to respond was negligent or careless, not willful.”

The Trustee, however, argues that HSBC has failed to meet the standards for proving a ease of excusable neglect. The Trustee states that HSBC received at least three communications from him inquiring about the existence of documentation to support its purported secured claim in the 2004 Chevy Classic before he filed this adversary proceeding. Also, HSBC received notice of the complaint, a summons from the court setting the answer deadline and a pre-trial conference, notice of the motion for default, and notice of the default judgment. In total, the Trustee estimates that nearly eight months passed from his first contact with HSBC to when the court entered the default judgment, and an additional nine months before HSBC requested relief from the court’s judgment.

Rule 60(b) of the Federal Rules of Civil Procedure, made applicable by Bankruptcy Rule 9024, allows a judgment to be vacated for, among other reasons, mistake, inadvertence, or excusable neglect.3

In Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993) the Supreme Court defined excusable neglect. “Neglect” means “‘to give little attention or respect’ to a matter ... ‘to leave undone or unattended to especially] through carelessness’ ” Id. at 388, 113 S.Ct. 1489 (citation omitted). “The word therefore encompasses both simple, faultless, omissions to act, and more commonly, omissions caused by carelessness.” Id. Making the determination that neglect is excusable, “is at bottom an equitable one, taking into account all relevant circumstances surrounding the party’s omission.” Id. at 395, 113 S.Ct. 1489. Factors that a court should consider include: “the danger of prejudice to the debtor, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith.” Id. Although excusable neglect is an elastic concept, it does not usually constitute inadvertence, ignorance of the rules, or mistakes construing the rules. Id. at 392, 113 S.Ct. 1489.

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Fluharty v. Household Automotive Finance (In re Boyd), 347 B.R. 524 (N.D.W. Va. 2006).

347 B.R. 524 (Fluharty v. Household Automotive Finance (In re Boyd)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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