        IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE
                        IN AND FOR SUSSEX COUNTY


WILMINGTON TRUST COMPANY                              )
                                                      )
                                                      )
                 Plaintiff,                           )
                                                      )           C.A. No. U607-08-166
        v.                                            )
                                                      )
                                                      )
RUTH G. MORGAN                                        )
                                                      )
                                                      )
                 Defendant.                           )

                                       Submitted February 26, 2015
                                          Decided April 9, 2015

Seth Yeager, Esquire, Attorney for Plaintiff
William Wilgus, Esquire, Attorney for the Defendant




ORDER ON PLAINTIFF’S MOTION FOR ENLARGEMENT OF TIME IN ORDER TO
                       EFFECTUATE SERVICE


        Plaintiff filed its Motion for Enlargement of Time in Order to Effectuate Service on

February 19, 2015.         Defendant filed a responsive pleading on February 26, 2015. After

considering the parties’ submissions, the Motion is hereby GRANTED.

                                             Procedural History

        On February 12, 2009, Plaintiff was granted a default judgment after Defendant failed to

appear. On March 18, 2014, Defendant, through its counsel, filed a motion to vacate the default

judgment on the grounds that the original complaint was sent to the wrong address. On October

3, 2014, Defendant’s motion was granted and the 2009 judgment was voided for lack of proper




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service. Following that decision, Plaintiff filed its Motion for Enlargement of Time in Order to

Effectuate Service.

                                           Discussion

       Defendant contests Plaintiff’s Motion for Enlargement of Time in Order to Effectuate

Service on the grounds that Plaintiff cannot make a showing of excusable neglect for its failure

to effectuate proper service in 2009.

       Notwithstanding the service of process defects in 2009, Defendant has since had ample

notice of the suit against her. Defendant was aware of the suit on March 18, 2014 when she

appeared through counsel by filing her motion to vacate the default judgment. Defendant’s

counsel did not specially appear or appear for the sole purpose of contesting jurisdiction when

presenting the motion.      Although defense counsel subsequently filed a limited entry of

appearance on February 26, 2015, it is clear Defendant had sufficient notice and awareness of the

complaint through her previous appearance moving to set aside the default judgment.

       The record in this matter demonstrates at least excusable neglect in initially failing to

perfect service. Plaintiff requested service upon defendant at the address of record she had

allegedly provided Plaintiff in her credit application. The specially appointed process server

attested to service at that same address by leaving the filing with an adult who identified himself

as Defendant’s son, albeit the server misspelled his name. Plaintiff reasonably relied upon the

representations of the process server. In addition, the Court finds granting the motion will not

prejudice Defendant in that she already clearly has ample notice and understanding of the action,

and generally appeared in the action when she moved to set aside the default.            However,

inasmuch as the Court’s Commissioner previously instructed Plaintiff to effectuate new service

upon Defendant and that instruction was not appealed, that instruction stands. Accordingly,



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Plaintiff’s motion is GRANTED.   Plaintiff is granted 120 days to serve its complaint on

Defendant.

      IT IS SO ORDERED this _____ day of April, 2015.



                                                     ______________________________
                                                        Kenneth S. Clark, Jr.
                                                         Judge




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