Wilmington Savings Fund Society, FSB v. Wojcik

• Court: Superior Court of Delaware
• Decided: March 28, 2018
• Docket: N16L-03-183 CLS
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILMINGTON SAVINGS FUND ) SOCIETY, FSB, d/b/a Christina Trust, ) not individually but as trustee for ) Pretium Mortgage Acquisition Trust ) ) Plaintiff(s), ) C.A. No. N16L-03-183 CLS ) v. ) NON-ARBITRATION ) In Rem Valerie J. Wojcik, Personal ) Sci. Fa. Sur Mortgage Action Representative and Heir to the Estate of ) Mortgage Record 20110322- Lawrence Gillen, aka Lawrence P. ) 0015457 Gillen, Sr., Barbara Gillen aka Barbra ) Parcel No. 10-029.10-100 J. Gillen, (Heir), Robert J. Gillen ) (Heir), Jennifer C. Wojcik (Heir), ) Robert F. Wojcik (Heir), Joanne M. ) Whitehead aka Joanne Luthultz aka Jo ) Luthultz (Heir) and William E. Ellis ) (Heir) ) ) Defendants.

ORDER

Decided: March 28, 2018

On this 28th day of March, 2018, and upon consideration Plaintiff Wilmington

Savings Fund Society’s (“Plaintiff”) Motion for Summary Judgment and Defendant

Valerie J. Wojcik (“Defendant”) Response thereto, the Court finds as follows:

1. On March 30, 2016 Plaintiff filed a scire facias sur mortgage complaint

against Defendants seeking foreclosure of Plaintiff’s interests in the property known as 61 Appleby Road, New Castle, Delaware 19720 under the

mortgage.

2. On September 1, 2016 Plaintiff filed its Amended Complaint to name

additional heirs not included in the original complaint. Subsequently Plaintiff

filed this Motion for Summary Judgment. Plaintiff contends that Defendants

have not plead any of the allowable Defenses in a mortgage action under

Delaware law.

3. Defendant Valerie J. Wojcik filed a Response on January 15,2018. Defendant

contends that service of the complaint was not completed in regards to two of

the named Defendants; William E. Ellis and Jennifer C. Wojcik. The record

reflects that service for these individuals was completed personally by the

Sheriffs of Kent and Sussex County respectively.

4. “The defenses available in a scire facias sur mortgage foreclosure action are

limited and only those claims or counterclaims arising under the mortgage

may be raised. Delaware courts recognize the defenses of payment, or

satisfaction or avoidance.”1

5. The Court may grant summary judgment if the moving party establishes that

there are no genuine issues of material fact in dispute and judgment may be

1 CitiMortgage, Inc. v. Bishop, 2013 WL 1143670, at *5 (Del. Super. Mar. 4, 2013). 2 granted as a matter of law.2 All facts are viewed in a light most favorable to

the non-moving party.3 When the facts permit a reasonable person to draw

only one inference, the question becomes one for decision as a matter of law.4

If the non-moving party bears the burden of proof at trial, yet “fails to make a

showing sufficient to establish the existence of an element essential to that

party’s case,” then summary judgment may be granted against that party. 5

6. To the extent that Defendants raised any defense in their filings, this Court

may only recognize the defense of payment, satisfaction or avoidance. The

Answer to Plaintiff’s Complaint is void of Delaware’s recognized defenses.

Additionally, the Response to Plaintiff’s Motion fails to demonstrate that there

are any genuine issues of material fact.

7. For the foregoing reasons, Plaintiff Wilmington Savings Fund Society’s

Motion for Summary Judgment is GRANTED as to all Defendants. The

Court declines to refer this matter to mediation.

IT IS SO ORDERED.

/s/ Calvin L. Scott Judge Calvin L. Scott, Jr.

2 Super. Ct. Civ. R. 56(c). 3 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). 4 Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967). 5 Kennedy v. Encompass Indem. Co., 2012 WL 4754162, at *2 (Del. Super. Sept. 28, 2012) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 3