CHARLES W. WELCH, III JUDGE
Mr. Mhadi Abdallahi
96 Parkers Drive
Dover, DE 19904 Stephen P. Doughty, Esq.
Lyons, Doughty, and Veldhuis, P.A.
15 Ashley Place, Suite 2B
Wilmington, DE 19804 Decision on Motion to Vacate Default Judgment Dear Mr. Abdallahi and Mr. Doughty:
Defendant has filed a Motion to Vacate Default Judgment pursuant to Court of Common Pleas Civil Rule 60(b). The Court has carefully considered the defendant's motion and it is denied.
On March, 17, 2011, Plaintiff, Midland Funding, LLC, filed a complaint for a debt action demanding judgment against Defendant, Mhadi Abdallahi, in this Court. The complaint and alias summons were served on Keisha Abdallahi, the defendant's wife, at the defendant's residence on June 12, 2011. A default judgment against the defendant was filed on July 7, 2011 in the amount of $6,187.36 because the defendant failed to answer the complaint. On December 20, 2012, the plaintiff filed a praecipe in this court requesting that the defendant's wages be attached. The defendant then sent this Court a letter on January 15, 2013, stating that he was not aware of the December 20, 2012, court date, and he was only informed of the judgment through his employer and the wage garnishment. The defendant also asserts in his letter that he never applied for credit with Midland Funding, and that even if the debt was accurate, the debt has expired under the statute of limitations. The Court will consider the defendant's letter as a Motion to Vacate Default Judgment. This opinion constitutes the Court's decision. The defendant's Motion to Vacate Default Judgment is denied.
Under Court of Common Pleas Civil Rule 4, service of process is made upon an individual by "leaving copies [of the summons, complaint and affidavit, if any] thereof at that individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein..." Ct. Com. Pl. Civ. R. 4(f)(I). While the defendant asserts that he was not aware of the December 20, 2012, court date, the record clearly shows that the defendant was properly served, in accordance with Court of Common Pleas Civil Rule 4, when his wife was personally served at his place of residence on June 12, 2011. Therefore, the defendant was aware of the debt action that was against him and he failed to file a response to it. The plaintiff filed a praecipe for a wage attachment on December 20, 2012. There was no "court date" to notice.
Court of Common Pleas Civil Rule 55(c) provides that the Court may vacate a default judgment in accordance with Civil Rule 60(b). The Court considers the defendant's motion to be made under Civil Rule 60(b)(1). A party moving to vacate a default judgment in accordance with Civil Rule 60(b)(1) must establish three elements before the motion will be granted:
(1) excusable neglect in the conduct that allowed the default judgment to be taken; (2) a meritorious defense to the action that would allow a different outcome to the litigation if the matter was heard on the merits; and (3) a showing that substantial prejudice will not be suffered by the plaintiff if the motion is granted.
Perry v.
Wilson, 2009 WL 1964787, at *1 (Del. Super.) (quoting
Verizon Delaware,
Inc.
v.
Baldwin Line Constr.
Co.,
2004 WL 838610, at *1 (Del. Super.)). The Court will only consider the second two elements if the defendant has provided a satisfactory explanation that the failure to answer the complaint was due to excusable neglect.
Id. "Excusable neglect" is defined as "that neglect which might have been the act of a reasonably prudent person under the circumstances."
Id. This Court has held that "[a] Defendant's failure to understand the Complaint or how to respond does not constitute excusable neglect."
Mitchell v.
Webb, 2011 WL 7563022, at *3 (Del. Com. Pl. Aug. 19, 2011).
The defendant has failed to establish excusable neglect in his conduct as required under Civil Rule 60(b)(1) when he failed to file a timely response for this matter. Since the defendant has not established excusable neglect, the Court does not need to consider the second two elements to vacate a default judgment for excusable neglect under Civil Rule 60(b)(1).
Based on the foregoing analysis, the Court finds that the plaintiff properly served the defendant with a copy of the complaint in this case and that it was not answered by the defendant in a timely manner. Therefore, default judgment against the defendant was properly entered. In addition, the defendant has failed to establish excusable neglect in his conduct that would allow the default judgment to be vacated. Therefore, the defendant's Motion to Vacate Default Judgment is denied.
IT IS SO ORDERED.
Sincerely,
/s/
Charles W. Welch, III CWW:mek