THE BANK OF NEW YORK MELLON F/K/A THE BANK OF NEW YORK, AS TRUSTEE (CWABs 2006-SD2 Plaintiff,
JEFFRY S. PEARSON THE UNITED STATES OF AMERICA Defendant.
Submitted: August 18, 2017
Plaintiff's Motion for Enlargement of Time GRANTED
L. Rocanelli, Judge
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").
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.
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).
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.
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
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.
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. Consistent with Delaware's policy in
favor of decisions on the merits,  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."
"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.'" Excusable neglect is
"neglect which might have been the act of a reasonable
prudent person under the circumstances." In contrast,
failure to perfect service as a result of mistake,
inadvertence, or "half-hearted" efforts does not
qualify as excusable neglect.
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
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