Re: Tabb v. The Bank of New York Mellon C.A. No. 2017-0016-MTZ
Dear Counsel and Litigants:
In this case, homeowners seek to quiet title with regard to a residential mortgage. I write to address plaintiffs' pending motion for default judgment and the hearing thereon currently scheduled for Monday, June 19, 2017. As background, plaintiffs filed their Verified Complaint for Quiet Title on January 12, 2017, and filed an affidavit showing service on March 8, 2017.
Court of Chancery Rule 55(b) permits the Court to enter a default judgment when a defendant has failed to appear, plead or otherwise defend. That rule is permissive, not mandatory, and gives the Court discretion to decide whether to enter a default judgment based on the particular set of facts before it.
Default judgment is not warranted in this case. While defendant failed to file a timely answer, defendant explained its difficulty in obtaining conflict-free counsel. Defendant responded to the motion for default judgment promptly, substantively, and in a manner that advances the litigation. Plaintiffs filed the motion for default judgment exactly twenty days after the defendant was served. Plaintiffs have shown no prejudice from defendant's slight delay.
For the foregoing reasons, plaintiffs' motion for default judgment is denied and the hearing thereon is cancelled. The parties shall confer on a briefing schedule for the motion to dismiss; if no stipulated scheduling order is received within twenty days, the Court will enter one.
This is a final report pursuant to Court of Chancery Rule 144. The period for taking exceptions is stayed until a final report is issued on the motion to dismiss.