Brown et al v. Fairmont State University et al

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THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
IN RE:
ROBERT WILLIAM BROWN, JR.
and MARIANNE REGINA BROWN,
Debtors.
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ROBERT WILLIAM BROWN, JR.
and MARIANNE REGINA BROWN,
Plaintiffs,
v.
FAIRMONT STATE UNIVERSITY,
DIRECT LOANS,
U.S. DEPARTMENT OF EDUCATION,
U.S. DEPARTMENT OF
EDUCATION/FISL
Defendants.
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Case No 1:05-bk-04470
Adv. Proc. No. 1:06-bk-00024
MEMORANDUM OPINION
This matter came before the court on the motion filed by Robert William Brown, Jr. and
Marianne Regina Brown (the “Debtors”) to set aside the court’s April 27, 2006 order denying their
motion for default judgment against U.S. Department of Education, Direct Loans and U.S. Department
of Education/FISL (the “Department”) for lack of proper service. For the reasons set forth herein, the
court will deny the Debtors’ motion to set aside the court’s order.
Dated: Monday, September 18, 2006 2:15:59 PM
Case 1:06-ap-00024 Doc 18 Filed 09/18/06 Entered 09/18/06 14:57:48 Desc Main
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The Debtors commenced an adversary proceeding against the Department on January 17,
2006, seeking to discharge government-guaranteed student loans. On January 20, 2006, the Clerk of
Court issued summonses for all of the named defendants, which in addition to the Department included
Fairmont State University. Service of the summonses was executed on the named defendants on
January 26, 2006, except for the U.S. Department of Education, which was served on January 30,
2006. The Department, however, never filed an answer, and the Debtors filed a motion for default
judgment on April 6, 2006. The court denied the Debtors’ motion for default judgment as to the
Department on the basis that the Debtors failed to serve it properly pursuant to Bankruptcy Rule
7004(b)(5).
The Debtors argue that the court should set aside its denial of entry of default judgment against
the Department, and concurrently grant their motion for default judgment because on May 19, 2006,
the Debtors filed a motion to set aside the court’s April 27, 2006 order denying the motion for default
judgment, with new certificates of service attached demonstrating service on the U.S. Attorney for the
Northern District of West Virginia and the Attorney General on May 17, 2006.
Rule 60(b) of the Federal Rules of Civil Procedure, made applicable to this case by Bankruptcy
Rule 9024, allows a judgment to be set aside for, among other reasons, mistake, inadvertence, or
excusable neglect. To prevail on a Rule 60(b) motion, the Fourth Circuit requires a preliminary
showing by the movant of timeliness, a meritorious defense, a lack of unfair prejudice to the opposing
party, and exceptional circumstances. Dowell v. State Fire & Cas. Auto Ins. Co., 993 F.2d 46, 48
(4th Cir. 1993). After a party has met this preliminary burden, the party must prove its entitlement to
relief under Rule 60(b). Id.
The Debtors do not offer any arguments in support of the Dowell factors. Furthermore, the
court finds that there is no basis to set aside its order. Bankruptcy Rule 7004(b)(5) provides that
service may be made upon any officer or agency of the United States, by mailing a copy of the
summons and complaint to the United States attorney for the district in which the action is brought, and
by mailing a copy of the summons and complaint to the Attorney General of the United States in
Washington, District of Columbia. The Debtors did not serve the summons on the Attorney General or
Case 1:06-ap-00024 Doc 18 Filed 09/18/06 Entered 09/18/06 14:57:48 Desc Main
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1 The April 27, 2006 order only pertains to the Department. The court has entered default
judgment against Fairmont State University.
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the U.S. Attorney for the Northern District of West Virginia; consequently, the court’s denial of the
Debtors’ motion for default judgment was proper.
For the reasons stated herein, the court will deny the Debtors’ motion to set aside its April 27,
2006 order denying the motion for default judgment.1
The court will enter a separate order pursuant to Fed. R. Bankr. P. 9021
Case 1:06-ap-00024 Doc 18 Filed 09/18/06 Entered 09/18/06 14:57:48 Desc Main
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