CHARLES W. WELCH, III JUDGE
Ms. Sandra Steele
347 Eisenhower Drive
Dover, DE 19901 Stephen P. Doughty, Esq.
Lyons, Doughty and Velduis, P.A.
15 Ashley Place, Suite 2B
Wilmington, DE 198094 Dear Ms. Steele and Mr. Doughty,
As you are aware, the Court held a hearing on the Motion to Vacate Default Judgment filed by the defendant, Sandra Steele, on December 6, 2013. After careful consideration of the arguments for the motion, the Court grants the defendant's Motion to Vacate Default Judgment.
The plaintiff, Midland Funding LLC, assignee of Tribute MasterCard, commenced this civil debt action on December 6, 2008, when the plaintiff filed a Complaint with this Court alleging the defendant defaulted on a credit card agreement entered into with the plaintiff. An Affidavit of Process was filed with the Court stating that the defendant was personally served with the Complaint on February 10, 2009. The Court entered default judgment against the defendant on October 1, 2009, when she failed to answer the plaintiff's Complaint within 20 days of being served, pursuant to Court of Common Pleas Civil Rule 12(a). Upon the plaintiff's request, the Court issued a wage attachment for the defendant on October 3, 2013.
On October 14, 2013, the defendant filed her Motion to Vacate Default Judgment. The defendant contends she was never served with a copy of the Complaint. She alleges she was at work on the date and time listed in the Affidavit of Service, Furthermore, the defendant contends she never had a Tribute MasterCard.
The plaintiff opposes the Motion to Vacate Default Judgment on the grounds that the defendant failed to establish excusable neglect. The plaintiff contends that the defendant's allegation that she never received the Complaint is insufficient to invalidate the inherently reliable process server. The plaintiff further contends that the defendant has failed to set forth a meritorious defense to the action that would allow a different outcome to the litigation if heard on the merits.
The Court may relieve a party from judgment upon finding:
(1) Mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.
CT. COM. P. CIV. R. 60 (b). "Delaware courts look favorably on motions to vacate default judgments 'because they promote Delaware's strong judicial policy of deciding cases on the merits.' Accordingly, Rule 60 (b) should be construed liberally to give effect to that underlying policy."
Emory Hill & Co.
v.
Mrfruz LLC, 2013 WL 5347519, at *4 (Del. Super. Sept. 24, 2013) (citation omitted).
In the present case, the defendant argues the judgment is void because she was never served with the Complaint. A judgment is void if it was rendered without jurisdiction. Emory Hill & Co., 2013 WL 5347519, at *8 n.102. The defendant is not making an argument for excusable neglect as categorized by the plaintiff. The Court finds the defendant's testimony that she never received notice and never had a Tribute MasterCard credible. Furthermore, at the hearing on the defendant's motion, the plaintiff failed to present any documentation supporting the defendant's liability for the debt and the address to which any billing statements were sent. The only documentation offered by the plaintiff was the Affidavit of Process.
Based on the foregoing analysis, the Court finds that the defendant was not served with a copy of the Summons and Complaint for this case. Therefore, the default judgment against the defendant is void. The defendant's Motion to Vacate Default Judgment is GRANTED. The defendant shall file an Answer to the plaintiff's Complaint within 20 days of this order.
IT IS SO ORDERED.
Sincerely,
/s/
Charles W. Welch, III