       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY

WILMINGTON SAVINGS FUND                     )
SOCIETY, FSB,                               )
                                            )
             Plaintiff,                     )
                                            )
             v.                             )
                                            )   C.A. No.: N13J-04-323 ALR
VANJYOTSNA PATEL, DILIP                     )
PATEL, PRAVEEN PATEL and                    )
JYOTI PATEL,                                )
                                            )
             Defendants.                    )
                                            )

      ORDER OF THE COMMISSIONER DATED JANUARY 9, 2015 – AFFIRMED
                     WRIT OF EXECUTION – GRANTED

                              Submitted: February 16, 2015
                               Decided: February 23, 2015

      This matter is before the Court on Defendant’s Objection to the

Commissioner’s Order dated January 9, 2015 by which the Commissioner granted

Plaintiff’s Motion for Notice of Execution. Upon consideration of Defendant’s

objection and Plaintiff’s opposition thereto and the entire record before the Court,

the Court finds as follows:

    1. Under Superior Court Civil Rule 132, 1 Commissioners have the power to

      conduct both dispositive and non-dispositive hearings and to make certain



1
      Super. Ct. Civ. R. 132(a)(3) & (4).
         pre-trial determinations and recommendations. 2 The fundamental nature of

         the subject matter under review—dispositive or non-dispositive—dictates

         the degree of deference a judge must give to such a determination. 3 Upon

         review of a Commissioner’s case-dispositive determination, a judge engages

         in a de novo review. 4 For such case-dispositive determinations, therefore,

         the Commissioner’s disposition acts as proposed findings of fact and

         recommendations and the judge makes a de novo determination of those

         specified portions, proposed findings of fact, or recommendations to which

         an objection is made. 5 For non case-dispositive matters, by contrast, the

         Commissioner’s order is reconsidered by a judge only “where [it] has been

         shown on the record” that the order is “based upon findings of fact that are

         clearly erroneous, or [] contrary to law, or [] an abuse of discretion.” 6

    2. This case was filed as a judgment action, on which Plaintiff sought to

         execute.     On December 22, 2014, an evidentiary hearing was held to

         consider Plaintiff’s request for a writ to execute on the deficiency judgment.




2
         New Castle County v. Kostyshyn, 2014 WL 1347745, at *3 (Del. Super. Ct. April 4,
2014).
3
         Id.
4
         Super. Ct. Civ. R. 132(a)(4)(iv).
5
         Super. Ct. Civ. R. 132(a)(4)(ii).
6
         Super. Ct. Civ. R. 132(a)(3)(ii) & (iv).
                                                    2
 3. Effectively, the Commissioner’s Order will be case-dispositive. Regardless

    of the standard of review, however, the Commissioner’s Order must be

    affirmed.

 4. The Commissioner found that, based on the clear language of the guaranties

    in this case, Defendants have contractually agreed to pay the deficiency

    judgment and agreed to waive any rights or defenses to contest this action.

    Furthermore, Defendants cannot collaterally attack the value associated with

    the Property recovered at the sale based on the principal of res judicata.

 5. As a result, Plaintiff is entitled to collect the deficiency from Defendants.

    The Commissioner’s decision was correct, and must be upheld whether a de

    novo review is applied or a limited review is applied.

 6. The Commissioner was correct in granting Plaintiff a writ of execution in

    this case and no argument asserted by the Defendants warrants a different

    result by this Court.




    NOW, THEREFORE, this 23rd day of February 2015, the Objections of

Defendants are OVERRULED; the Order of the Commissioner dated

January 9, 2015 is hereby AFFIRMED; and the WRIT of EXCUTION is

                                        3
GRANTED.

   IT IS SO ORDERED.

                       Andrea L. Rocanelli
                       _____________________________
                       Honorable Andrea L. Rocanelli




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