Antkiewicz v. Urso et al

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UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re
WILLIAM JOSEPH URSO and
BARBARA MARGARET URSO,
Debtor.
Case No. 2:12-BK-13391-RK
Chapter 7
Adv No.: 2:12-ap-01683-RK
TODD ANTKIEWICZ,
Plaintiff,
vs.
WILLIAM JOSEPH URSO and
BARBARA MARGARET URSO,
Defendants.
ORDER GRANTING DEFENDANTS’
MOTION TO SET ASIDE ENTRY OF
DEFAULT PURSUANT TO FED. R.
BANKR. P. 7055 AND 9024; FED. R.
CIV. P. 55(c) AND 60(b)
Defendants’ Motion to Set Aside Entry of Default (the “Motion”) came on for
hearing before the undersigned United States Bankruptcy Judge on April 23, 2013 at
2:30 p.m. The Motion was brought in opposition to Plaintiff’s Motion for Default
Judgment, filed on March 11, 2013. The court entered default against the Defendants on
March 11, 2013, after the Defendants did not file a responsive pleading to Plaintiff’s First
Amended Complaint, filed on January 10, 2013.
FILED & ENTERED
JUN 11 2013
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	tatum
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Federal Rule of Civil Procedure 55(c), incorporated into bankruptcy proceedings
by Federal Rule of Bankruptcy Procedure 7055, allows a court to set aside entry of
default for “good cause,” and allows the court to set aside default pursuant to Federal
Rule of Civil Procedure 60(b). Under Federal Rule of Civil Procedure 60(b), incorporated
into bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 9024, the court
may grant relief from a final judgment or order for mistake, inadvertence, surprise, or
excusable neglect. See Fed. R. Civ. P. 60(b)(1). Such a motion must be brought within
a reasonable time of the court’s entry of default. See 1 Schwarzer, Tashima and
Wagstaffe, California Practice Guide: Federal Civil Procedure Before Trial, ¶ 6:150 at 6-
40 (2011).
The court finds that the Motion was filed within a reasonable time. The court
entered default on March 11, 2013, and the Motion was brought within one month from
that time. Additionally, the court finds that Defendants have established good cause for
setting aside default because the failure by Defendants’ counsel was excusable neglect
under Rule 60(b)(1). See Pioneer Investment Services Co. v. Brunswick Associates
Limited Partnership, 507 U.S. 380, 394 (1993) (finding that the court, in consideration of
whether a party’s neglect was “excusable,” should consider the danger of prejudice to the
debtor, the length of the delay and its potential impact on judicial proceedings, the reason
for the delay, and whether the movant acted in good faith).
The court observes that the record reflects that Plaintiff only served his first
amended complaint on January 16, 2013 and that counsel for Defendants has been
seriously ill since January 2013, causing him to miss the responsive pleading deadline in
this case, and had advised counsel for Plaintiff of his illness before Plaintiff had filed his
request for entry of default. See Declaration of Albert Lon Chaney III, filed in support of
Motion at pages 1-2. Additionally, the debtors (Defendants) would be seriously
prejudiced in this case by not being permitted to defend this suit on the merits—a suit that
requests this court deny their discharge pursuant to 11 U.S.C. § 727. Indeed, a case
should, whenever possible, be determined on the merits. See TCI Group Life Insurance
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Plan v. Knoebber, 244 F.3d 691, 696 (9th Cir. 2001). Finally, contrary to Plaintiff’s
arguments in opposition to the Motion, based on this record, the court finds that there has
not been deliberate, willful, or bad faith on the part of Defendants, nor was there any
serious delay in this case from setting aside default. Indeed, attached to the Motion is
Defendants’ proposed answer, which responds to the first amended complaint by
specifically making admissions and denials to the allegations of the first amended
complaint and stating numerous affirmative defenses. See Exhibit A to Motion.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Set Aside Entry of Default is granted.
IT IS FURTHER ORDERED that the default of Defendants entered by the Clerk is
hereby set aside and that the proposed Answer to the First Amended Complaint,
attached as Exhibit A to the Motion, is deemed filed and served as of the date of entry of
this order.
IT IS SO ORDERED.
###
Date: June 11, 2013
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NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify) ORDER GRANTING DEFENDANT’S
MOTION TO SET ASIDE ENTRY OF DEFAULT PURSUANT TO FED. R. BANKR. P. 7055 AND 9024;
FED. R. CIV. P. 55(c) AND 60(b) was entered on the date indicated as “Entered” on the first page of this
judgment or order and will be served in the manner indicated below:
I. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) – Pursuant to controlling
General Order(s) and Local Bankruptcy Rule(s), the foregoing document was served on the following
person(s) by the court via NEF and hyperlink to the judgment or order. As of June 10, 2013, the following
person(s) are currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding
to receive NEF transmission at the email address(es) indicated below:
Wesley H Avery wamiracle6@yahoo.com
Kirk Brennan calilawofficeecf@gmail.com
Albert L Chaney albertchaney@cox.net, chaneys4@yahoo.com
John J Menchaca (TR) jmenchaca@menchacacpa.com, ca87@ecfcbis.com;igaeta@menchacacpa.com
United States Trustee (LA) ustpregion16.la.ecf@usdoj.gov
Service information continued on attached page
II. SERVED BY THE COURT VIA U.S. MAIL: A copy of this notice and a true copy of this judgment or
order was sent by U.S. Mail, first class, postage prepaid, to the following person(s) and/or entity(ies) at the
address(es) indicated below:
William Joseph Urso
Barbara Margaret Urso
640 Bynner Dr
San Pedro, CA 90732
Service information continued on attached page
III. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or
order which bears an “Entered” stamp, the party lodging the judgment or order will serve a complete copy
bearing an “Entered” stamp by U.S. Mail, overnight mail, facsimile transmission or email and file a proof of
service of the entered order on the following person(s) and/or entity(ies) at the address(es), facsimile
transmission number(s) and/or email address(es) indicated below:
Service information continued on attached page
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