LAWRENCE E. MERGENTHALER a resident of the State of Delaware, Plaintiff,
TRIUMPH MORTGAGE CORP. a Delaware Corporation, Defendant.
Submitted: April 6, 2017
A. Sergovic, Jr., Esq, SERGOVIC & CARMEAN, P.A., 30 E.
Pine Street, Ste. 1, P.O. Box 751, Georgetown, DE 19947.
Attorney for Plaintiff.
Richard L. Abbott, Esq, ABBOTT LAW FIRM, 724 Yorklyn Road,
Suite 240, Hockessin, DE 19707. Attorney for Defendant.
COMMISSIONERS REPORT AND RECOMMENDATION ON DEFENDANTS
MOTIONS TO QUASH WRIT OF ATTACHMENT Fl. FA.
Bradley V. Manning, Commissioner
Pursuant to 10 Del. C. § 512 and Superior Court
Civil Rule 132(a)(4), the above captioned case was referred
to the undersigned Commissioner on April 6, 2017, for
findings of fact and a recommendation. Accordingly, I have
reviewed the parties' submissions and a transcript of the
hearings held on March 2nd and 8th,
2017. Based on the record before me, I find and recommend as
and Procedural Background
facts in this action are not in dispute; the question
presented is purely one of law. In summary: on January 15,
2010, Lawrence E. Mergenthaler obtained a default judgment
against Triumph Mortgage Corporation, in the New Castle
County Superior Court, for failing to pay on two loans
totaling over $207, 000. On November 18, 2010, a Testatum
Fieri Facias ("Fi. Fa.") was filed
transferring the judgment to both Kent and Sussex
counties. Between April 4, 2010 and December 21,
2011, Mergenthaler filed numerous Writs of Attachment Fi. Fa.
garnishment on various individuals and businesses in an
attempt to satisfy the debt. Mergenthaler filed an additional
writ of garnishment on February 7, 2013.
November 29, 2016, Mergenthaler filed a Praecipe seeking the
Writ of Attachment presently at issue. On December 2, 2016,
the writ was issued and served by the sheriff upon Merrill
Lynch. The writ was addressed to "ACCOUNT
MANAGER, MERRILL LYNCH, of 1201 Market Street, Suite 2000,
Wilmington, Delaware 19801 ("Garnishee") to garnish
any liquidation of the pledge of stock of Kathy L. Galvin,
Account No. 753-97256, owed her indebtedness to Defendant,
Triumph Mortgage Corporation to Plaintiff, Lawrence E.
Mergenthaler, under the judgment in this action." The
account was subsequently liquidated and by agreement of the
parties, the proceeds were deposited with the Prothonotary
pending a final, non-appealable ruling in this action.
undisputed that at no time did Mergenthaler return to this
Court and seek to renew the judgment prior to issuing the
has filed two separate motions to quash the writ of
attachment served on Merrill Lynch. In its first motion,
Triumph argues that because "Merrill Lynch was merged
into Bank of America Corporation" on October 1, 2013, it
is immune from the attachment laws of this State pursuant to
10 Del. C. § 3502(b). In its second motion,
Triumph argues that the judgment is stale under 10 Del.
C. § 5702(a) "due to its 5 year age at the
time the Writ was issued, " making it
"invalid." Additionally, Triumph argues that
because no writs of attachment were issued within the first
year and one day of the judgment being entered on January 15,
2010, the judgment is stale and the common law prevents
further execution attempts. Mergenthaler disputes this
interpretation of the law and argues that the five year
window for collecting on a judgment-without the need to renew
it- was expanded to 10 years with the adoption of Superior
Court Civil Rule 69(a) when it is read in conjunction with 10
Del. C. § 4711.
the issue was not briefed, the issue of standing was raised
by the parties during argument before the Court. Because
standing is a threshold issue, I will address it first. At
the hearing, Mergenthaler briefly argued that Triumph did not
have sufficient standing to "raise any issues with
respect to [its] praecipe on [Merrill
Lynch]." Conversely, Triumph contended that
"it's our money, " that it's "within
the zone of interest" to be protected and that if the
garnishment is allowed to proceed, it will cause
general matter, "[s]tanding is the requisite interest
that must exist in the outcome of the litigation at the time
the action is commenced." As further explained by the
Delaware Supreme Court:
The concept of standing, in its procedural sense, refers to
the right of a party to invoke the jurisdiction of a court to
enforce a claim or redress a grievance. It is concerned only
with the question of who is entitled to mount a
legal challenge and not with the merits of the subject matter
of the controversy. In order to achieve standing, the
plaintiffs interest in the controversy must be
distinguishable from the interest shared by other members of
a class or the public in general. ... state courts apply the
concept of standing as a matter of self-restraint to avoid
the rendering of advisory opinions at the behest of parties
who are mere intermeddlers."
the above law to the facts of this case, it is evident that
Triumph has standing to at least object to the garnishment
levied against Merrill Lynch by Mergenthaler. There is no
dispute among the parties that the money in question belongs
to Kathy L. Galvin who, in turn, had pledged it as collateral
to Triumph. According to information in the docket, Triumph
sent a letter to Merrill Lynch requesting that the stock be
liquidated and turned over to Triumph because Galvin had
defaulted on her loan obligations. Thus, if the money is
garnished and turned over to Mergenthaler, Galvin and Triumph
would, arguably, suffer injury. As to this issue,
Mergenthaler's argument is without merit.
argument that Merrill Lynch is exempt from attachment under
Delaware Law is misplaced. Mergenthaler presented substantial
evidence in his Response establishing that the entity served
was, in fact, Merrill Lynch, Pierce, Fenner & Smith
("MLPF&S"), who is a registered broker dealer
and a separate Delaware Corporation from Merrill Lynch.
Exhibit 3 to Mergenthaler's Response is a copy of the
merger between Merrill Lynch and Bank of America purporting
to show that MLPF&S was not merged into or otherwise
absorbed as part of the merger. Additionally, in Exhibit 4,
Mergenthaler provided a list of all Delaware banking
institutions, as recognized by the State Banking
Commissioner-nowhere on the list is MLPF&S identified as
a bank. Finally, in Exhibit 5, Mergenthaler attached a copy
of the 1958 Certificate of Incorporation of MLPF&S
showing that it "shall not in any jurisdiction carry on
the business of banking... ." Aside from the merger with
Bank of America, Triumph has presented no evidence that
MLPF&S is engaged in the business of banking, is a trust
company, savings institution or loan association. Based on
the information presented, I am satisfied that MLPF&S is
subject to the attachment laws of this State.
of the Writ
ultimate question before the Court is whether or not a valid
execution writ may issue upon a judgment that is more than
five years old, but less than ten years old, that has never
been renewed. My review of the applicable statutes, Superior
Court Rules and decisional-law indicates that this is a
question of first-impression.
argues that "[b]ecause the Judgment was over 5 years old
when the Writ was requested and issued in November of 2016
(nearly 7 years later), execution process was not issuable
and therefore the Writ was a legal nullity." In the
alternative, Triumph also argues that based on the last
sentence of Section 5702, ("[a]s to all other cases the
law shall remain unaffected"), that the common law year
and a day rule applies, making the writ invalid because no
execution process was issued during that initial period.
response, Mergenthaler argues that his filing of the two
Testatum Fi Fa documents with the Court was a form
of execution process. I do not find this argument persuasive.
The documents merely served to transfer the judgment, as a
matter of record, to the prothonotary in Kent and Sussex
counties so writs of execution could then be subsequently
true, as argued by Triumph, that at common law there was a
rebuttable presumption of full payment after a year and a
day, and that no execution process could issue if none had
been made within that same time period. However, that rule,
and the arcane process once used to circumvent it, known as
vice comes,  was superseded by the adoption of 10
Del. C. § 5072 in 1857.
Del. C. §5072 states:
Execution on judgments in civil actions.
(a) An execution may be issued upon a judgment in a civil
action at any time within 5 years from the time when such
judgment was entered or rendered, or from the time when such
judgment became due; or to collect any installment of a
judgment within 5 years from the time when such installment
This section shall only apply to cases when no execution has
been previously issued to collect such judgment or
installment, and to cases where 1 or more have been issued
for such purpose, and it appears by the return of the officer
that such judgment or installment, as the case may be, has
not been paid or satisfied. As to all other cases the law
shall remain unaffected.
(b) No judgment shall be deemed to be paid or satisfied, in
whole or in part, by a levy on execution process, unless it
appears otherwise than by the fact of such levy that ...