US Bank v. Arnold

20010071 US Bank National Association,
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

Appeal from: District Court, South Central Judicial District, Kidder County
Judge Bruce B. Haskell
Nature of Action: Contracts
Counsel:
Appellant: Maring Williams Law Office
Appellee: Schulz Geiermann & Bergeson Law Offices, P.C.
Term: 06/2001   Argument: 06/18/2001  10:45am
ND cite: 2001 ND 130
NW cite: 631 N.W.2d 150

Listen to recording of oral argument in MP3 format

Issues: Appellant's Statement of the Issues:
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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Docket entries:
103/20/2001 NOTICE OF APPEAL: 03/16/2001
203/20/2001 ANNOUNCED DISQUALIFICATION: Maring, Mary Muehlen
304/10/2001 RECORD ON APPEAL including transcript dated 11/16/2000 (Unidentified miscellaneous documents
404/24/2001 APPELLANT BRIEF
504/24/2001 APPELLANT APPENDIX (missing lower court docket sheet)
604/24/2001 DISK - ATB
704/30/2001 Trial Ct. docket sheet for ATA
805/22/2001 APPELLEE BRIEF
905/22/2001 APPELLEE APPENDIX
1005/22/2001 DISK of AEB
1105/25/2001 SITTING WITH THE COURT: Grosz, Richard W.
1205/29/2001 Corrected Table of Cases & Page 20 for AEB
1305/29/2001 DISK - AEB (corrected)
1406/08/2001 REPLY BRIEF
1506/08/2001 DISK - RYB
1606/18/2001 ANNOUNCED DISQUALIFICATION: VandeWalle, Gerald W.
1706/18/2001 SITTING WITH THE COURT: Glaser, Gerald G.
1806/18/2001 APPEARANCES: Todd A. Sattler; Michael Geiermann
1906/18/2001 ARGUED: Sattler; Geiermann (Vol. X; page 144)
2006/18/2001 ORAL ARGUMENT WEBCAST
2107/12/2001 NOTICE OF MOT. AND MOTION TO SUBSTITUTE PARTIES; MEMORANDUM OF LAW; AFF. OF TODD A. SATTLER
2207/12/2001 ACTION BY ACTING CHIEF JUSTICE (Mot. to Substitute Parties). Granted
2307/13/2001 Order/Judgment Mailed to Parties
2407/13/2001 DISPOSITION: AFFIRMED
2507/13/2001 SPLIT OPINION: Sandstrom, Dale V.
2607/13/2001 (CONCUR & DISSENT): Grosz, Richard W.: CON/DIS
2707/13/2001 Costs on appeal taxed in favor of appellee
2807/13/2001 Order/Judgment Mailed to Parties
2908/06/2001 MANDATE
3009/17/2001 Corrected/Substitute Opinion Page (page nine para 27)
3109/20/2001 Order Mailed to Parties - corrected page
3208/01/2001 RECEIPT SIGNED BY DISTRICT COURT CLERK'S OFFICE
3309/13/2007 EXPUNGED - Nonpermanent record items destroyed

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