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. Isaiah 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 19977. The original principal due on this mortgage was 

$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 25, 2011. 

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

answer the complaint’s allegations by affidavit. They filed an answer claiming that 

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

However, 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 contested the claimed 

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

At the inquisition hearing, the Bank sought judgment in the amount of 

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

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

miscellaneous fees and $21,161.19 in attorneys’ fees. The 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 an in rem 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 admitted into evidence, was $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 was $7,589.00, and there were an additional $32 in 

miscellaneous fees. The report also includes a credit to the Henrys in the amount of 

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

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

they provided no corroboration 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-judgment 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 Henrys. However, the Bank proved its legal 

entitlement to this judgment and award. 

As a final matter, the Bank also sought reasonable attorneys’ fees. However, 

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

 

2

Id.

3

Id.
4

fees. Namely, the 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 the 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).