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Wirth v. Avondale IQ., LLC

Superior Court of Delaware

May 25, 2018

JERZY WIRTH Plaintiff,
v.
AVONDALE IQ., LLC, Defendant.

          Argued: April 19, 2018

          Jerzy Wirth, Plaintiff, Judgment Creditor, pro se.

          Brian T.N. Jordan, Esquire, Attorney at Law, Attorney for Defendant.

          COMMISSIONER'S ORDER ON DEFENDANT'S MOTION TO VACATE CONFESSED JUDGMENT

          BRADLEY V. MANNING, COMMISSIONER.

         Before the Court is Defendant's Motion to Vacate a confessed judgment (the "Motion") pursuant to Superior Court Civil Rule 60(b). Following submission of Plaintiffs Response, argument and an evidentiary hearing were held before the undersigned commissioner on April 19, 2018. Because the Motion is not case-dispositive, I am issuing my decision in the form of an Order pursuant to Superior Court Civil Rule 132(a)(3). For the following reasons, the Motion is Denied:

         Facts and Procedural Background

         On November 9, 2010, Plaintiff (hereinafter also "Mr. Wirth") filed documents with the Prothonotary of the Superior Court to obtain a Confessed Judgment against Defendant pursuant to Superior Court Civil Rule 58.1. Plaintiff alleged that Defendant had defaulted on a Promissory Note and Business Loan. A tentative judgment was entered by the Prothonotary and the matter was scheduled for a hearing. On December 17, 2010, Defendant failed to appear for the hearing to contest the matter and a default judgment was entered by the Court. On February 15, 2018, Defendant filed the instant Motion. Defendant claims that he never received notice of the hearing for the confessed judgment in 2010, and only recently learned of the judgment itself during bankruptcy proceedings.

         Defendant's Arguments

         Defendant argues in his Motion that: (1) the judgment is void because it was never served notice of the confessed judgment hearing, (2) the judgment is also void because Defendant did not authorize Plaintiff, specifically Mr. Wirth, to confess judgment on its behalf, and (3) Defendant moves the Court to reexamine the amount of the judgment under Rule 60(b)(6), specifically the award of "collection and Attorneys Fees" of $32, 846.85.

         Analysis

         Before addressing Defendant's argument, it is necessary to review the law and procedure used to obtain a confessed judgment in the Superior Court. Pursuant to Rule 58.1, a party files the necessary documents with the Prothonotary who then enters a "tentative judgment" and schedules the matter for a hearing. The party moving for the judgment is required to provide the original document evidencing the agreement and authorizing the confession of judgment with copies ready for certified mailing in a pre-paid and self-addressed envelope. Court staff then docket and mail the documents directly to the defendant, with the certified mail "green cards" being returned directly to the plaintiff once service has been completed.

         Improper Service

         In this case, Defendant argues that the process outlined in Rule 58.1 was not followed, and consequently, that Defendant never received notice of the 2010 hearing whereby he could move to challenge the motion to confess judgment. At the heart of Defendant's argument is docket entry #2, that states "PRO SE WILL SEND OUT CERTIFIED NOTICE PACKAGE 11-9-2010." Defendant argues that this docket entry evidences the fact that Rule 58.1 was not followed and that the Prothonotary allowed Plaintiff to mail (or not mail as Defendant intimates) the documents himself-as opposed to Prothonotary staff doing it. Defendant argues that under the rule, the Prothonotary is required to mail the documents due to the use of the term "shall" within Rule 58.1. Defendant also argued during the hearing that notice was inadequate because it was only sent to the registered agent and not also mailed to Defendant's home address.

         Plaintiff disputes Defendant's contentions and avers that the rule was properly followed because he provided the necessary documents to the Prothonotary who then mailed them, per the rule, on his behalf. Defendant subsequently filed with the Court the certified mailing return receipt showing that delivery was made to Christiana Incorporators, 508 Main Street, c/o Ralph Estep, Wilmington, DE, 19804, who was the registered agent for Defendant at the ...


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