            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


WILMINGTON SAVINGS FUND                         :
SOCIETY, FSB,                                   :     C.A. No: K15L-12-039 RBY
                                                :     In and for Kent County
              Plaintiff,                        :
                                                :
      v.                                        :
                                                :
THE ESTATE OF JOSEPH JACKEWICZ,                 :
SHIRLEY A. JACKEWICZ a/k/a/                     :
SHIRLEY A. JOHNSTON as Executor,                :
and THE UNITED STATES OF                        :
AMERICA,                                        :
                                                :
              Defendants.                       :


                                Submitted: July 15, 2016
                              Decided: September 14, 2016


                            Upon Consideration of Plaintiff’s
                             Motion for Summary Judgment
                                      GRANTED

                                        ORDER


Garvan F. McDaniel, Esquire, Hogan & Veith, P.A., Wilmington, Delaware for
Plaintiff.

Shirley A. Jackewicz a/k/a Shirley A. Johnston, Pro se.




Young, J.
Wilmington Savings Fund, FSB v. The Estate of Joseph Jackewicz, et al.
C.A. No.: K15L-12-039 RBY
September 14, 2016

                                    SUMMARY
      Plaintiff bank filed a Motion for Summary Judgment (the “Motion”) in a
mortgage foreclosure action previously instituted against Defendant, Executor of the
Estate which includes the property at issue. Because no material facts remain in
dispute, consideration of this Motion is in order. Since Defendant admits Plaintiff’s
allegations of default, Plaintiff is entitled to judgment as a matter of law. Therefore,
Plaintiff’s Motion is GRANTED.
                             FACTS AND PROCEDURE
      Shirley Jackewicz a/k/a Johnston (“Defendant”) is the Executor of the
Estate of Joseph Jackewicz (the “Estate”), who died in 2013. The Estate includes
property located at 3635 Walnut Shade Road in Camden-Wyoming, f/ka 3635
Rising Sun Road in Magnolia, Delaware (the “Property”). The Property secures in
part a note (the “Note”) and is subject to a mortgage (the “Mortgage”) with
Wilmington Savings Fund Society, FSB (“Plaintiff”), in the original principal
amount of $95,400.
      Defendant filed for Chapter 12 bankruptcy in June 2014. Plaintiff was
granted relief from the automatic stay in October 2015. Plaintiff sent demand
letters to both the Defendant and the Estate in October 2015, but neither the Note
nor the Mortgage has been repaid to date.
      Plaintiff filed a Complaint against Defendant in December 2015, seeking
judgment on the Mortgage. Defendant filed an Answer, but failed to include the




                                            2
Wilmington Savings Fund, FSB v. The Estate of Joseph Jackewicz, et al.
C.A. No.: K15L-12-039 RBY
September 14, 2016

Affidavit of Defense required under 10 Del. C. § 3901.1
        Plaintiff filed the instant Motion for Summary Judgment on June 22, 2016.
Plaintiff argues that Defendant’s failure to file an Affidavit of Defense is not a
mere technical flaw under Delaware case law. Instead, according to Plaintiff, such
failure amounts to Defendant’s default. In her Response, Defendant asserts that
she did not understand that the procedural requirement distinguished between her
Answer, which she timely filed, and the Affidavit of Defense.
        Defendant included an Affidavit of Defense with her response to Plaintiff’s
Motion. In the Affidavit, Defendant alleges that the Estate was paying interest on
the Mortgage to Plaintiff, and that the Property is scheduled to be auctioned, after
which time Defendant intends to make payment in full to Plaintiff.
                                     STANDARD OF REVIEW
        Summary judgment is appropriate where the record exhibits no genuine
issue of material fact so that the movant is entitled to judgment as a matter of law.2
The Court views the record in the light most favorable to the nonmoving party.3
When material facts are in dispute, or “it seems desirable to inquire more



        1
            10 Del. C. § 3901 states in relevant part:

“(d) If the plaintiff...complies with this section, and the defendant...fails to respond to the
designated allegations by affidavit filed with the answer [...], 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.”
        2
            Tedesco v. Harris, 2006 WL 1817086 (Del. Super. June 15, 2006).
        3
            Fauconier v. USAA Cas. Ins. Co., 2010 WL 847289, at *2 (Del. Super. Mar. 1, 2010).

                                                         3
Wilmington Savings Fund, FSB v. The Estate of Joseph Jackewicz, et al.
C.A. No.: K15L-12-039 RBY
September 14, 2016

thoroughly into the facts, to clarify the application of the law to the
circumstances,” summary judgment will not be appropriate.4 However, when the
facts permit a reasonable person to draw but one inference, the question becomes
one for decision as a matter of law.5
                                         DISCUSSION
       Nowhere in either Defendant’s Response or Affidavit does she dispute the
applicable law as articulated by Plaintiff. Plaintiff’s statement of the law and
asserted procedural argument are correct. Furthermore, even overlooking the
technical failure of Defendant’s pleadings, Defendant does not dispute Plaintiff’s
statement of the facts.
                                        CONCLUSION
       For the foregoing reasons, Plaintiff’s Motion for Summary Judgment is
GRANTED.
       IT IS SO ORDERED.
                                                     /s/ Robert B. Young
                                                                J.
RBY/lmc
Via File & ServeXpress
oc: Prothonotary
cc: Counsel
      Shirley Jackewicz a/k/a Johnston
      United States Attorney


       4
        Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del. 1962) (citing Knapp v. Kinsey, 249
F.2d 797 (6th Cir. 1957)).
       5
           Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).

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