SUPERIOR COURT

OF THE

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse Judge 38 The Green Dover, DE 19901

302

- 735

- 2111

September 5 , 2017

Chase N. Miller, Esq. Isaiah F. Henry McCabe, Weisberg & Conway, P.C. Joan C. Henry
1407 Foulk Road, Suite 102 157 Greens Branch Lane Wilmington, DE 19803 Smyrna, DE 19977

RE: The Bank of New York Mellon, F/K/A The Bank of New York as Trustee for the Certificateholders of the CWABS, Inc., Asset

- Backed Certificates Series 2005

- 4, v. Is a iah F. Henry & Joan C. Henry

C.A. No. K11L

- 10

- 078 JJC

Submitted: August 31 , 2017

Decided: September 5, 2017

Mr. Miller and Mr. and Mrs. Henry;

This letter sets forth the Court’s decision after an inquisition hearing to

determine the amount of an in rem judgment entered by default in favor of The Bank

of New York Mellon (hereinafter the “Bank”) against Isaiah and Joan Henry

(hereinafter collectively “the Henrys”). On November 29, 2004 the Henrys executed

and delivered to the Bank a mortgage on the property known as 157 Greens Branch

Lane in Smyrna Delaware 199 77. The original principal due on this mortgage wa s

$225,436.00 with an adjustable rate

. The Bank alleged that the Henrys have failed

to make monthly payments and have long since defaulted . The Bank, in response,2

filed a mortgage foreclosure action against the Henrys on October 2 5, 2011.

Pursuant to 10 Del. C. § 3901 (hereinafter “§3901”), the Bank demanded the Henrys

answer the c omplaint’s allegations by affidavit. The y filed an answer claiming that

they had made payments but the Bank did not credit them f or those amounts.

How ever, they filed no affidavit. Section §3901 require that

[i]f the plaintiff or plaintiffs complies [sic] with this section, and the

defendant or defendants [sic] fails to respond to the designated allegations by affidavit filed with the answer or answers, the designated allegations will be deemed admitted, and default judgment may be entered thereon, in the discretion of the court and upon motion by the plaintiff.

Here, the Bank complied with this section but the Henrys failed to respond by

affidavit. Upon motion, the Court entered a default judgment against the Henrys.

After entry of the default judgment, the Court scheduled an inquisition hearing to

determine the amount of the judgment because (1) the Bank sought amounts that

were not specified in the Complaint, and (2) the Henrys contest ed the claimed

amount because they alleged making more payments than the Bank represented.

At the inquisition hearing, t he Bank sought judgm ent in the amount of

$482,573.98 including $221,658.00 for the p rincipal balance, $198,206.60 for

interest, $35,198.01 for escrow advances, $7,589.00 for corporate advance s, $32 in

miscellaneous fees and $21,161.19 in attorneys ’ fees. Th e Bank applied a credit of

$1,270.82 in unapplied funds which according to Patrick Pitman, who testified on

behalf of the Bank, were the only payments the Henrys made on the account.

In an inquisition hearing, “the sole focus . . . is the amount of damages owed

to the plaintiff, which is determined by the . . . judge.” 1 To determine the amount of

the default judgment, the Court’s findings must be based on the preponderance of

1 Jagger v. Schiavello , 93 A.3d 656, 659 (Del. Super. Ct. 2014).3

the evidence. 2 Preponderance of the evidence means “the side on which the greater

weight of the evidence is found.” 3

After considering the evidence presented at the hearing , the Court finds that

the Bank established through testimony and the documents submitted , by a

preponderance of the evidence, that it is entitled to a n in r em judgment for

$ 461,412.79 . The Bank established that the principal balance on the mortgage is

$221,658.00. Additionally, the accrued interest on the mortgage, according to the

testimony and statement prepared by Select Portfolio Servicing dated August 25,

2017 and ad mitted into evidence, wa s $198,206.60 as of the date of the hearing.

According to the same report, the escrow advance balance was $35,198.0, the

corporate balance amount wa s $7,589.00 , and there were an additional $32 in

miscellaneous fees

. The re port also includes a credit to the Henrys in the amount of

$1,270.82 for amounts that they h ave previously paid. While Mrs. Henry testified

that they made approximately $1,700 in payments on the mortgage since its default,

the y provided no corrobo ration for the extra approximately $430 in alleged

payments. The Court finds that the Bank met its burden in proving damages in the

amount of $461,412 .79 and will enter a final judgment in that amount, together with

an allowance for court costs and post

- j udgment interest at the legal rate

. The evidence presented by the Henrys at the inquisition hearing focused

primarily on the hardships they have faced and their frustration regarding losing their

home. The Court sympathizes with the He nrys. However, th e Bank proved its legal

entit lement to this judgment and award.

As a final matter, t he Bank also sought reasonable attorneys ’ fees. However,

after reviewin g the mortgage, the Court finds that it does not provide for attorneys ’

2 Id.

3 Id.4

fees. Namely, t he document states that the Bank is entitled to “ attorneys ’ fees of

____% .” The Court will not award the “payment of attorneys’ fees . . . absent a

statutory or contractual provision.” 4 As the contract here did not specify t he amount

of attorneys’ fees due the Bank (in fact it provides for “__ % ” ) , the Court declines to

award them

. Accordingly, the Court hereby enters judgment in this matter in rem in

the amount of $461,412.79 , together with court costs and post

- judgment interest

accruing at the legal rate after the date of this Order

.

IT IS SO ORDERED.

/s/Jeffrey J Clark

JJC:jb Via File & Serve Xpress

4 Dover Historical Soc’y Inc. v. City of Dover Planning Comm’n , 902 A.2d 1084, 1092 (Del. 2006).