      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE BANK OF NEW YORK MELLON                    )
F/K/A THE BANK OF NEW YORK, AS                 )
TRUSTEE (CWABs 2006-SD2)                       )
          Plaintiff,                           )
                                               )
      v.                                       )      C.A. No. N16L-08-119 ALR
                                               )
JEFFRY S. PEARSON                              )
THE UNITED STATES OF AMERICA                   )
           Defendant.                          )

                          Submitted: September 13, 2017
                           Decided: September 20, 2017

     Upon Defendant’s Application for Certification of Interlocutory Appeal
                                  DENIED

                                     ORDER

      This is a mortgage foreclosure case involving property located at 806 North

Madison Street, Wilmington, Delaware (“Property”). According to the Bank of New

York Mellon (“Plaintiff”), Plaintiff is the valid assignee of a Mortgage executed by

Defendant Jeffry S. Pearson (“Defendant”) on the Property. On August 21, 2016,

Plaintiff filed a Complaint against Defendant alleging that Defendant failed to pay

monthly installments on the mortgage and seeking the principal sum remaining on

the Mortgage in addition to interest, late charges, and legal fees. Plaintiff did not
properly serve process within the 120 days required by Superior Court Civil Rule

4(j) (“Rule 4(j)”).1

      On August 23, 2017, this Court granted Plaintiff’s Motion for Enlargement of

Time for Service of Complaint (“August 23 Order”), finding that Plaintiff

demonstrated good cause under Rule 4(j) to excuse the untimely service. The Court

extended the time to serve until January 17, 2017, the date on which service had

been accomplished.       Defendant filed an Application for Certification of

Interlocutory Appeal of the August 23 Order (“Application”). Plaintiff opposes

Defendant’s Application.

      Upon consideration of the facts, arguments, and legal authorities set forth by

the parties; decisional law; the Superior Court Rules of Civil Procedure; the Rules

of the Delaware Supreme Court; and the entire record in this case, the Court hereby

finds as follows:

      1.     Supreme Court Rule 42 (“Rule 42”) governs the certification of

interlocutory appeals. Subsection (c) of Rule 42 outlines the procedural process to

certify an interlocutory appeal.    Pursuant to Rule 42(c)(i), an application for

certification of an interlocutory appeal must be filed with the trial court “within 10




1
 The 120-day period expired on December 19, 2016 and service of process was not
accomplished until January 17, 2017.
                                          2
days of the entry of the order from which the appeal is sought or such longer time as

the trial court, in its discretion, may order for good cause shown.”

      2.     Defendant’s Application is untimely under Rule 42(c)(i). Defendant

seeks to appeal the August 23 Order. Accordingly, Defendant’s Application was

due, absent good cause, on September 5, 2017.2            Defendant did not file the

Application until September 12, 2017, and did not demonstrate good cause for the

delay in filing. Therefore, the Court concludes that Defendant’s Application is

untimely.

      3.     Notwithstanding the issues of timeliness of the appeal, the Court will

not certify an interlocutory appeal unless the matter is appropriate for interlocutory

review. Rule 42 states that “[n]o interlocutory appeal will be certified by the trial

court or accepted by this Court unless the order of the trial court decides a substantial

issue of material importance that merits appellate review before a final judgment.”3

Rule 42 also provides that “[i]nterlocutory appeals should be exceptional, not


2
  Rule 42(a) provides that the time periods under Rule 42 should be calculated under
Supreme Court Rule 11 (“Rule 11”). Under Rule 11, weekends and holidays are
counted when the period of time prescribed is greater than seven days. Therefore,
the time period for Defendant to file the Application began to run on August 24,
2017 and expired ten days later, on September 3, 2017. However, under Rule 11,
the last day of the time period should not be counted if it is a weekend, and the time
should be extended until the next day “on which the Office of the Clerk is open.”
The Office of the Clerk did not open until September 5, 2017 because of the Labor
Day holiday. Therefore, Defendant’s time period to file the Application expired on
September 5, 2017.
3
  Supr. Ct. R. 42(b)(i).
                                           3
routine, because they disrupt the normal procession of litigation, cause delay, and

can threaten to exhaust scarce party and judicial resources.”4 Furthermore, “[t]he

decision to grant interlocutory review is discretionary and highly case-specific.”5

      4.      Rule 42(b)(iii) requires consideration of several factors for the Court to

consider in determining whether to certify an interlocutory appeal. These factors

are, as follows:

           (A) The interlocutory order involves a question of law resolved for
           the first time in this State;
           (B) The decisions of the trial courts are conflicting upon the question
           of law;
           (C) The question of law relates to the constitutionality, construction,
           or application of a statute of this State, which has not been, but
           should be, settled by this Court in advance of an appeal from a final
           order;
           (D) The interlocutory order has sustained the controverted
           jurisdiction of the trial court;
           (E) The interlocutory order has reversed or set aside a prior decision
           of the trial court, a jury, or an administrative agency from which an
           appeal was taken to the trial court which had decided a significant
           issue and a review of the interlocutory order may terminate the
           litigation, substantially reduce further litigation, or otherwise serve
           considerations of justice;
           (F) The interlocutory order has vacated or opened a judgment of the
           trial court;
           (G) Review of the interlocutory order may terminate the litigation;
           or
           (H) Review of the interlocutory order may serve considerations of
           justice.6


4
  Supr. Ct. R. 42(b)(ii).
5
  E.I. du Pont de Nemours & Co. v. Allstate Ins. Co., 686 A.2d 1015, 1016 (Del.
1997).
6
  Supr. Ct. R. 42(b)(iii)(A–H).
                                            4
Additionally, the Court is to consider the most efficient and just schedule to resolve

the case, and whether the likely benefits of interlocutory review outweigh the

probable costs such that interlocutory review is in the interest of justice.7 If the

“balance of the Court’s analysis is uncertain,” the Court should not certify the

interlocutory appeal.8

      5.     The Court notes that two of the factors under Rule 42(b)(iii) may favor

certification. First, the August 23 Order did sustain the controverted jurisdiction of

the Court by extending the time for service of process, which allows the Court to

exercise personal jurisdiction over Defendant.9 In addition, review of the August 23

Order could terminate the litigation if the Supreme Court were to conclude that this

Court may not exercise jurisdiction over Defendant.10

      6.     However, while the Court acknowledges that Rule 42(b)(iii)(D) and (G)

weigh in favor of certification of an interlocutory appeal, the Court finds that the

remaining factors under Rule 42(b)(iii) weigh against certification. The August 23

Order did not involve an issue of first impression in this State.11 In addition, trial

courts are not conflicted about the question of law raised in the August 23 Order,12



7
  Supr. Ct. R. 42(b)(iii).
8
  Id.
9
  Supr. Ct. R. 42 (b)(iii)(D).
10
   Supr. Ct. R. 42(b)(iii)(G).
11
   Supr. Ct. R. 42(b)(iii)(A).
12
   Supr. Ct. R. 42(b)(iii)(B).
                                          5
as the standard for “good cause” under Rule 4(j) is well-settled.13 The question of

law does not relate to the constitutionality, construction, or application of a statute.14

The August 23 Order did not set aside a prior decision of a trial court, jury, or

administrative agency.15 The August 23 Order did not vacate or open a judgment of

the trial court.16

       7.     Additionally, the Court does not find that the likely benefits of

interlocutory review of the August 23 Order outweigh the probable costs. Therefore,

the Court concludes that interlocutory review is not in the interest of justice.

       8.     Upon consideration of the criteria set forth under Rule 42, this Court

finds that Defendant’s Application is untimely and that there are no exceptional

circumstances to warrant interlocutory review.17 Accordingly, the Court concludes

that Defendant’s Application for Certification of Interlocutory Appeal should be

denied.




13
   See Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998) (citing Dominic v. Hess Oil
V.I. Corp., 841 F.2d 513, 517 (3d Cir. 1988)).
14
   Supr. Ct. R. 42(b)(iii)(C).
15
   Supr. Ct. R. 42(b)(iii)(E).
16
   Supr. Ct. R. 42(b)(iii)(F).
17
   Supr. Ct. R. 42(b)(ii). See also Harrison v. Div. of Youth & Family Servs., 2003
WL 22669344, at *1 (Del. Nov. 10, 2003) (“Applications for interlocutory review
are addressed to the sound discretion of this Court and are granted only in
extraordinary cases.”).
                                            6
     NOW, THEREFORE, this 20th day of September, 2017, Defendant’s

Application for Certification of Interlocutory Appeal is hereby DENIED.


     IT IS SO ORDERED.


                                   Andrea L. Rocanelli
                                   ____________________________________
                                   The Honorable Andrea L. Rocanelli




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