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Bank of New York Mellon v. Pearson

Superior Court of Delaware

September 20, 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: September 13, 2017

         Upon Defendant's Application for Certification of Interlocutory Appeal DENIED

          ORDER

          Honorable Andrea L. Rocanelli J.

         This is a mortgage foreclosure case involving property located at 806 North Madison Street, Wilmington, Delaware ("Property"). According to the Bank of New York Mellon ("Plaintiff"), Plaintiff is the valid assignee of a Mortgage executed by Defendant Jeffry S. Pearson ("Defendant") on the Property. On August 21, 2016, Plaintiff filed a Complaint against Defendant alleging that Defendant failed to pay monthly installments on the mortgage and seeking the principal sum remaining on the Mortgage in addition to interest, late charges, and legal fees. Plaintiff did not properly serve process within the 120 days required by Superior Court Civil Rule 4(j) ("Rule 4(j)").[1]

         On August 23, 2017, this Court granted Plaintiff's Motion for Enlargement of Time for Service of Complaint ("August 23 Order"), finding that Plaintiff demonstrated good cause under Rule 4(j) to excuse the untimely service. The Court extended the time to serve until January 17, 2017, the date on which service had been accomplished. Defendant filed an Application for Certification of Interlocutory Appeal of the August 23 Order ("Application"). Plaintiff opposes Defendant's Application.

         Upon consideration of the facts, arguments, and legal authorities set forth by the parties; decisional law; the Superior Court Rules of Civil Procedure; the Rules of the Delaware Supreme Court; and the entire record in this case, the Court hereby finds as follows:

         1. Supreme Court Rule 42 ("Rule 42") governs the certification of interlocutory appeals. Subsection (c) of Rule 42 outlines the procedural process to certify an interlocutory appeal. Pursuant to Rule 42(c)(i), an application for certification of an interlocutory appeal must be filed with the trial court "within 10 days of the entry of the order from which the appeal is sought or such longer time as the trial court, in its discretion, may order for good cause shown."

         2. Defendant's Application is untimely under Rule 42(c)(i). Defendant seeks to appeal the August 23 Order. Accordingly, Defendant's Application was due, absent good cause, on September 5, 2017.[2] Defendant did not file the Application until September 12, 2017, and did not demonstrate good cause for the delay in filing. Therefore, the Court concludes that Defendant's Application is untimely.

         3. Notwithstanding the issues of timeliness of the appeal, the Court will not certify an interlocutory appeal unless the matter is appropriate for interlocutory review. Rule 42 states that "[n]o interlocutory appeal will be certified by the trial court or accepted by this Court unless the order of the trial court decides a substantial issue of material importance that merits appellate review before a final judgment."[3]Rule 42 also provides that "[i]nterlocutory appeals should be exceptional, not routine, because they disrupt the normal procession of litigation, cause delay, and can threaten to exhaust scarce party and judicial resources."[4] Furthermore, "[t]he decision to grant interlocutory review is discretionary and highly case-specific."[5]

         4. Rule 42(b)(iii) requires consideration of several factors for the Court to consider in determining whether to certify an interlocutory appeal. These factors are, as follows:

(A) The interlocutory order involves a question of law resolved for the first time in this State;
(B) The decisions of the trial courts are conflicting upon the question of law;
(C) The question of law relates to the constitutionality, construction, or application of a statute of this State, which has not been, but should be, settled by this Court in ...

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