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Bank of New York Mellon v. Pearson

Superior Court of Delaware

August 23, 2017

THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE (CWABs 2006-SD2 Plaintiff,
v.
JEFFRY S. PEARSON THE UNITED STATES OF AMERICA Defendant.

          Submitted: August 18, 2017

         Upon Plaintiff's Motion for Enlargement of Time GRANTED

          ORDER

          Andrea L. Rocanelli, Judge

         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:

          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] 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 ...

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