US Bank v. Arnold
as personal representative of
the Estate of Roy E. Hackman,
deceased, Plaintiff and Appellee
v.
Karen Arnold, as personal
representative of the Estate of
Dennis Arnold, deceased, Defendant and Appellant
Judge Bruce B. Haskell
| Appellant: | Maring Williams Law Office | |
| Appellee: | Schulz Geiermann & Bergeson Law Offices, P.C. |
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I. Under N.D.R.Civ.P. 55(a)(3) if the defendant makes an "appearance" in an action, the plaintiff must serve the defendant with eight days notice of its application for a default judgment. When notice is required and not served, the judgment is voidable. In this case, five days before entry of judgment, Arnold and his attorney spoke directly with US Bank's attorney and obtained an extension of time to settle the matter. It is undisputed that US Bank failed to serve Arnold with notice. Did Arnold's appearance and US Bank's failure to serve notice render the default judgment voidable?
II. Under N.D.R.Civ.P. 60(b) and North Dakota common law, where a motion to vacate is timely filed and where there is a meritorious defense, any doubt as to whether there was excusable neglect for the failure to answer the complaint must be resolved in favor of the moving party. In this case, it is undisputed that Arnold timely filed the motion to vacate the default judgment and it is undisputed that Arnold presented a meritorious defense. When the complaint was served, Arnold was under a physician's care and was taking medication for clinical depression. Due to his depression, frequent trips to care for his terminally ill brother, and difficulties at work, Arnold failed to answer the Complaint. Was Arnold's failure to timely respond to the Complaint excusable neglect?
Appellee's Statement of the Issues:
1. Did the defendant make an appearance pursuant to N.D.R.Civ.P. 55(a)(3) which would have entitled him to notice of a default hearing?
2. Whether the district court erred in denying defendant's motion to vacate a default judgment under Rule 60(b) on the basis that the defendant failed to show excusable neglect.
3. Whether the district court erred in finding the defendant had established a meritorious defense in his proposed answer.
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