Appeal of P.S. Docket No. FR 97-280 -- CHAD SEBASTIAN ARRINGTON d/b/a LIBERTY FINANCIAL CREDIT SERVICES, INC.

Administrative Law Judges

In the Matter of the Complaint   	) October 3, 1997        
Against                          	)
                                 	)
CHAD SEBASTIAN ARRINGTON         	)
        d/b/a                    	)
LIBERTY FINANCIAL CREDIT         	)
SERVICES, INC.                   	)
48 Shattuck Square, Suite #11    	)
                                 	)
        at                       	)
                                 	)
Berkeley, CA 94704-1119          	)  P.S. Docket No. FR 97-280


APPEARANCE FOR COMPLAINANT:		Christine M. Taylor, Esq.
					Ed Lawee, Esq.
					Consumer Protection Law
					United States Postal Service
					Washington, DC 20260-1147

APPEARANCE FOR RESPONDENT:		Chad Sebastian Arrington
					48 Shattuck Square, Suite #11
					Berkeley, CA 94704-1119

POSTAL SERVICE DECISION

On September 9, 1997, the Chief Administrative Law Judge referred this matter to the Judicial Officer for appropriate action based on the finding that Respondent was in default because he had not filed an Answer to the Complaint within the time prescribed by the Rules of Practice. On the same date, the Judicial Officer issued an order finding Respondent in default for his failure to file a timely Answer. With the order of default, the Judicial Officer issued the Cease and Desist Order and False Representation Order sought in the Complaint and authorized by 39 U.S.C. §3005.

By letter dated September 10, 1997, and received September 17, 1997, Respondent advised that he had been out of the country for the last several weeks and that he was unaware of the Complaint until his return. Respondent also stated that his offered service for a second social security number and tax identification number is legal.⁽¹⁾ As Respondent's letter was received after the issuance of the default order, it is being treated as a motion to set aside the order of default.

The Complaint was delivered to the address at which Respondent seeks remittances through the mail for his business enterprise and was signed for at that address on August 15, 1997, by someone purporting to act on Respondent's behalf.⁽²⁾ Therefore, proper service on Respondent was obtained on August 15, 1997.

Respondent's assertion that he did not receive the Complaint because he was out of the country for several weeks does not constitute excusable neglect or otherwise serve as a basis for setting aside the order of default. Respondent was responsible for assuring that his mail was properly handled in his absence and that either a timely Answer was filed or an extension of the period for filing the Answer was requested. See Glen Marion Pilie, P.S. Docket No. 37/49 (P.S.D. Feb. 28, 1991); Sheldon Lewenfus, P.S. Docket No. 30/159 (P.S.D. Sept. 30, 1988). His absence from the country, therefore, does not constitute excusable neglect, and, without a showing of excusable neglect or other excusable cause, a default determination will not be overturned. Martin Peyron, P.S. Docket No. 37/126 (P.S.D. July 30, 1991); Shano De Leon, P.S. Docket No. 37/79 (P.S.D. March 8, 1991); Proven Products, P.S. Docket No. 17/151 (P.S.D. Jan. 18, 1984).⁽³⁾

Respondent was properly found to be in default and no excusable cause has been shown. Accordingly, the request to set aside the order of default is denied.

James A. Cohen Judicial Officer

1. Respondent filed a second letter by fax on September 30, 1997, in which he reasserts that he was unable to file a timely response because he was out of the country. He further contends that a competitor initiated the allegations against him, that the advertisement filed with the Complaint has been revised and is no longer used, and that he would like to work with the Postal Service to resolve the problem. As Respondent has indicated he would like to work with the Postal Service, he may wish to contact Postal Service counsel and explore the possibility of having a consent agreement substituted for the default order.

2. Respondent apparently continues to use this address as it is the return address on his first letter.

3. Respondent's allegations of a meritorious defense do not excuse his failure to file a timely answer. Martin Peyron, P.S. Docket No. 37/126 (P.S.D. July 30, 1991); Glen Marion Pilie, P.S. Docket No. 37/149 (P.S.D. Feb. 28, 1991). Moreover, neither the Social Security Administration documents attached to Respondent's first letter nor the revised advertisement attached to his second letter show that a meritorious defense exists in this case.