Bank of New York Mellon v. Pearson
N16L-08-119 ALR
| Del. Super. Ct. | Aug 23, 2017Background
- Plaintiff Bank of New York Mellon (assignee of a 2005 mortgage) sued Jeffry S. Pearson on August 21, 2016 for mortgage foreclosure based on alleged missed payments and sought the unpaid principal, interest, late charges, and fees.
- Superior Court Rule 4(j) requires service of process within 120 days of filing; the deadline here was December 19, 2016.
- Plaintiff did not complete service within 120 days; service was ultimately accomplished by posting and certified mail in January 2017 (Plaintiff filed an affidavit of service showing service by registered mail on January 9, 2017 and posting on the property by January 17, 2017).
- Defendant Pearson answered and asserted lack of personal jurisdiction for failure to effect timely service. Pearson disputed the accuracy of the Philadelphia business address used for mail service.
- Plaintiff moved for an enlargement of time under Superior Court Civ. R. 6(b) and 4(j), arguing excusable neglect and diligent efforts to serve; the Court held a hearing, reviewed supplemental record, and granted the enlargement, extending time through January 17, 2017.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff showed good cause/excusable neglect to excuse service outside Rule 4(j)’s 120-day period and obtain enlargement under Rule 6(b) | Plaintiff argued it made diligent, repeated service attempts (multiple sheriff attempts, alias writs, certified mail to alternative business address, posting) and therefore its late service resulted from excusable neglect | Pearson argued service was not completed within 120 days and disputed the alternative Philadelphia address used for certified mail, contending lack of personal jurisdiction | Court held plaintiff demonstrated excusable neglect and diligent efforts; granted enlargement and deemed service effective by Jan 17, 2017 |
Key Cases Cited
- Keener v. Isken, 58 A.3d 407 (Del. 2013) (Delaware public policy favors resolution on the merits)
- Tsipouras v. Tsipouras, 677 A.2d 493 (Del. 1996) (same public-policy principle favoring merits decisions)
- Dolan v. Williams, 707 A.2d 34 (Del. 1998) (good-cause/good-faith standard and balancing speedy process with right to a day in court)
- Cohen v. Brandywine Raceway Assoc., 238 A.2d 320 (Del. Super. 1968) (definition of excusable neglect as what a reasonably prudent person might do)
- Braxton v. United States, 817 F.2d 238 (3d Cir. 1987) (distinguishing excusable neglect from mere inadvertence or half-hearted efforts)