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Wilmington Savings Fund Society v. Brown Shiels & O'Brien LLC

Superior Court of Delaware, For Kent

August 15, 2013

WILMINGTON SAVINGS FUND SOCIETY, FSB, Plaintiff,
v.
BROWN SHIELS & O'BRIEN LLC H. CUBBAGE BROWN, JR. AS GUARANTOR and JOHN E. O'BRIEN AS GUARANTOR, Defendant.

Submitted: May 3, 2013

Garvan F. McDaniel, Esquire of Bifferato Gentilotti LLC, Wilmington, Delaware; attorney for the Plaintiff.

H. Cubbage Brown, Jr., Esquire of Brown Shiels & Beauregard, LLC, Dover, Delaware.

John E. O'Brien, pro se

ORDER

William L. Witham, Jr., R.J.

I. Introduction

Before the Court is a Motion for Summary Judgment filed by the plaintiff, Wilmington Savi ngs Fund So ciety, FSB ("Plaintiff"), in this action seeking judgment on a promissory note executed by Brown, Shiels & O'Brien, LLC ("BSO"), and Cubbage Brown Jr. ("Brown") and John E. O'Brien ("O'Brien") as guarantors.[1]Plaintiff argues that it is entitled to summary judgment against Defendant John E. O'Brien because his answer to Plaintiff's Complaint failed to meet the requirements of 10 Del. C. § 3901(a). For the foregoing reasons, Plaintiff's Motion for Partial Summary Judgment is granted.

II. Factual and Procedural Background

On January 27, 2008, BSO executed and delivered to WSFS a promissory note in the amount of $50, 000 ("the Note"). O'Brien and Brown executed commercial guarantees securing the Note. WSFS perfected its security interest in the collateral by filing a UCC-1 financing statement with the Delaware Secretary of State on January 30, 2006.

Defendants later defaulted on the Note. On October 30, 2012, WSFS sent a demand letter to each of the defendants demanding payment of the Note in full.[2] Having received no response, Plaintiff filed this action requesting judgment against Defendants in the amount of $49, 042.31, plus attorney's fees and costs. In accordance with the provisions of 10 Del. C. § 3901(a), Plaintiff's complaint expressly stated that Defendants must answer the allegations therein by an affidavit of defense. WSFS attached to the Complaint, as exhibits A and E, respectively, copies of the Note and the aforementioned demand letter.

The summons and a copy of the complaint were served on O'Brien on December 18, 2012, and notice of service was entered on the docket on December 24, 2012. On January 18, 2013, O'Brien filed an answer to the complaint. An affidavit of defense was not filed with O'Brien's answer, in contravention of § 3901(a). Plaintiff thereafter filed the instant motion, which essentially seeks the entry of partial judgment by default.

III. Discussion

The courts of Delaware have been consistent in giving strict interpretation to the requirements of the statute permitting judgments on affidavit of demand.[3] The relevant statute is 10 Del. C. § 3901(a), which provides that "in all actions upon ... notes ... the plaintiff may specifically require the defendant or defendants to answer any and all allegations of the complaint by an affidavit setting forth the specific nature and character of any defense and the factual basis thereof." Subsection (b) of § 3901 elaborates upon the defense affidavit requirements as follows:

(b) if the defense is to a part only of the cause of action, the defendant, or if there be more than 1, any 1 or more of them, shall in such affidavit, specify the sum which ...

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