MISC 89544

September 18, 1978

Randall, C. J.


Petitioner's complaint, filed on March 21, 1978, seeks to foreclose a mortgage executed by Arlene R. and Henry A. Woolf.

The petitioner, in accordance with the provisions of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended, filed an affidavit as to military service indicating that Henry A. Woolf is in the military service. Notice of this proceeding was served by certified mail on Sergeant Woolf. The Court received a letter dated April 27, 1978 from Captain Gene Dycus, Legal Assistance Officer, on behalf of Sergeant Woolf requesting a stay of 60 to 90 days. The Court treated the letter as an appearance and answer and granted the stay. On June 8, 1978 Attorney Elliott Davidson was appointed as Military Attorney to represent Sergeant Woolf's interests. Attorney Davidson sent letters to Captain Dycus and Sergeant Woolf informing them of his appointment as Military Attorney and of petitioner's allegations and requesting certain information. Attorney Davidson received no response to these letters.

As evidenced by a letter dated July 24, 1978 from Captain Dycus to Mr. Barrett, petitioner's attorney, Sergeant Woolf has been in the Army for 24 years. Hence, he was in the military service on March 22, 1971 when he executed the mortgage to petitioner. Therefore, Sergeant Woolf is not entitled to the benefits of the Soldiers' and Sailors' Civil Relief Act of 1940, as amended. Section 302(1) thereof provides, "The provisions of this section shall apply only to obligations secured by a mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a person in military service at the commencement of the period of military service and still so owned by him which obligations originated prior to such person's period of military service."

As respondents are now in default under the terms of the mortgage, the Court rules that a decree be entered granting the petitioner authority to make an entry and exercise the power of sale contained in the mortgage.

Decree accordingly.