The opinion of the court was delivered by: BONSAL
Defendant Isidore Scheiner moves pursuant to F.R. Civ. P. 60(b) to vacate the default judgment entered against him in this action on October 2, 1968 in the amount of $4,203.05, on the grounds that no valid service was made upon him, and that he has valid defenses to the action.
This is an action on a debt. On February 24, 1958, defendant executed a promissory note in the amount of $4,237.50 to the order of the Chase Manhattan Bank to secure an interest-bearing loan of $4,000 made by the bank to defendant. The loan was insured by the Administrator of Veterans' Affairs of the Veterans' Administration ("VA") pursuant to Section 508 of Title III of the Servicemen's Readjustment Act of 1944, as amended, 59 Stat. 630 (presently reenacted as 38 U.S.C. § 1815).
On July 24, 1958, defendant defaulted on his monthly installment payments on the loan, and on October 3, 1958, defendant filed a petition in bankruptcy in this district; in his schedule of debts he listed the loan from the Chase Manhattan Bank, but not his contingent debt to the Veterans' Administration.
On March 6, 1959, defendant was discharged.
On July 22, 1959, the VA, pursuant to 38 U.S.C. § 1816, which provides for indemnification of lenders, paid the Chase Manhattan Bank $2,975.17 on the assignment and transfer to it of the note held by the bank. Defendant thereupon became indebted to the VA for that amount, 38 C.F.R. § 36.4323(e).
On May 25, 1967, the government commenced an action against defendant to recover the amount paid by it.
The return on the summons states that:
"* * * on June 3, 1967, at 1475 Montgomery Ave Bronx, N.Y., I served the [summons] on the within-named defendant Isidore Scheiner by delivering to and leaving a copy thereof, together with a copy of the Complaint, with Mrs. Isidore Scheiner, wife who would not open door & requested that I put process under door. Party who identified herself as Mrs Scheiner pulled process into apt but did not speak loud enough for me to get her first name."
Defendant failed to respond to the summons and complaint, and on October 2, 1968, a default judgment against him in favor of the government was entered in the amount of $2,955.17, plus interest, costs, and disbursements, for a total of $4,203.05.
Defendant contends that the service described in the marshal's return was invalid, and also denies that it was made.
F.R. Civ. P. 4(d) provides:
"(d) Summons: Personal Service. The summons and complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary. Service shall be made as follows:
(1) Upon an individual other than an infant or an incompetent person, by delivering a copy of the summons and of the complaint to him personally or by leaving copies thereof at his dwelling house or usual place of abode with some person ...