                      COURT OF COMMON PLEAS
                     FOR THE STATE OF DELAWARE
                              Wilmington, Delaware 19801

Alfred Fraczkowski
     Judge


Dario Davis                                     Matthew G. Summers, Esquire
16 McCord Drive                                 Jessica C. Watt, Esquire
Newark, DE 19713                                Ballard Spahr, LLP
  Pro Se                                        919 N. Market Street, 11th Floor
                                                Wilmington, DE 19801
                                                  Attorneys for Defendants

             RE: Dario Davis v. First Horizon Home Loan Corporation and Metlife
             Home Loans, LLC
             Case No.: CPU4-15-003818

                              Submitted: January 15, 2016
                               Decided: January 21, 2016

Dear Mr. Davis and Counsel:

      This matter comes before the Court on First Tennessee Bank National Association

(“First Tennessee”) and Metlife Home Loans, LLC’s (“MLHL”) (collectively,

“Defendants”) Motion to Dismiss the Complaint (the “Motion”). On January 15, 2016,

the Court heard argument from Defendants and Dario Davis (“Plaintiff”) on the Motion,

and reserved its decision. This letter constitutes the Court’s opinion and order on the

Motion.

      The facts that give rise to this dispute indicate that on August 19, 2005, Plaintiff

executed a Note secured by a Mortgage from First Horizon Home Loan Corporation

(“First Horizon”) in the amount of $190,993.00 so that he could purchase real property
located at 16 McCord Drive, in Newark, Delaware.1 First Tennessee is the successor in

interest by merger to First Horizon. First Tennessee sold its interest in the mortgage and

note, and assigned the mortgage to MLHL. In the Complaint, Plaintiff alleges that First

Tennessee’s transfer of interest and assignment of the mortgage was unlawful, and claims

that Defendants are liable for fraud in the concealment, unconscionability, breach of

fiduciary duty, and slander of title. Plaintiff also seeks declaratory relief. Plaintiff also

submits a claim for damages.

       Defendants bring the present Motion to Dismiss, arguing that Plaintiff’s complaint

fails to state a claim upon which relief can be granted, pursuant to Court of Common

Pleas Civil Rule 12(b)(6). Defendants make several arguments as to why Plaintiff’s

claim should be dismissed, including that Plaintiff seeks monetary relief not within the

jurisdictional limits of this Court.

       When considering a motion to dismiss for failure to state a claim, the Court is

guided by two principles: the Court must determine if the plaintiff would not be entitled

to any relief for any asserted claim under any adequately pled set of facts; 2 and the Court

limits its review to allegations and inferences developed only from well-pled allegations

in the complaint.3




1
  The Note and Mortgage were executed by Plaintiff and Nakeytha C. Davis. Neither party has
mentioned this person, and the Court assumes that failure to include this person has no effect on
the resolution of the issues raised by the Motion.
2
  Radkin v. Philip A. Hunt Chem. Corp., 498 A.2d 1099, 1104 (Del. 1985).
3
  Clinton v. Enterprise Rent-A-Car Co., 977 A.2d 892, 894 (Del. 2009).
                                                2
         In the complaint, Plaintiff seeks “[m]onetary relief over $1000,000 but not more

than $2,000,000.00.”4 Pursuant to 10 Del. C. § 1322, this Court has jurisdiction over

civil matters where the amount in controversy does not exceed $50,000.00. Therefore,

the amount of damages that Plaintiff seeks exceeds the jurisdictional limits of this Court.

At no point in Plaintiff’s response to Defendants’ Motion, or at any time during the

hearing on the Motion, did Plaintiff address this issue or amend his complaint so that it

met statutory jurisdiction. For this reason, the matter should be dismissed. Nonetheless,

the matter should also be dismissed based on Defendants’ other arguments, which the

Court will address seriatim.

         Plaintiff alleges that First Tennessee fraudulently concealed the securitization,

character, and material terms of the loan and transaction. Defendants argue that this

claim fails because the Note and the Mortgage both include express clauses explaining

that securitization was possible. Based on this express language, Defendants argue that

Plaintiff will be unable to prove the first two elements of fraud—concealment and

scienter—and therefore, Plaintiff’s claims fail.

         In order to state a claim for fraudulent concealment, a plaintiff must plead: “‘(1)

[d]eliberate concealment by the defendant of a material past or present fact, or silence in

the face of a duty to speak; (2) [t]hat the defendant acted with scienter; (3) [a]n intent to

induce plaintiff's reliance upon the concealment; (4) [c]ausation; and (5) [d]amages




4
    Compl. p. 13.
                                              3
resulting from the concealment.’”5 In this case, there is express language in both the

Note and the Mortgage explaining that securitization was possible. Section 1 of the Note

reads “I understand that the Lender may transfer this Note. The Lender or any who takes

this Note by transfer and who is entitled to receive payments under this Note is called the

‘Note Holder.’”6 Section 20 of the Mortgage states “[t]he Note or partial interest in the

Note (together with this Security Instrument) can be sold one or more times without prior

notice to Borrower.”7 The Superior Court has found that when there is express language

in a note and mortgage, such as the language here, borrowers cannot establish the first

two elements of fraud.8 Therefore, because Plaintiff cannot factually establish the first

two elements, Plaintiff’s fraudulent concealment claim is dismissed.

       In relying on the allegation that Defendants concealed the possibility of

securitization from him, Plaintiff also asserts that the Note and the Mortgage are

unconscionable. Defendants argue that this claim fails for two reasons: (1) Plaintiff’s

basis for the unconscionability—concealing securitization—is factually belied by the

express language in the contract, and; (2) Plaintiff has not pled any facts sufficient to give

rise to the claim for unconscionability.

       “Traditionally, a contract will be found unconscionable where ‘no man in his

senses and not under delusion would make on the one hand, and as no honest or fair man


5
  Commonwealth Land Title Ins. Co. v. Funk, 2015 WL 1870287, *3 (Del. Super. Apr. 22, 2015)
(quoting Nicolet Inc. v. Nutt, 525 A.2d 146, 149 (Del. 1987)).
6
  Compl., Ex. A.
7
  Defs. Mot. to Dismiss, Ex. A.
8
  Toelle v. Greenpoint Mortgage Funding, Inc., 2015 WL 5158276, *5 (Del. Super. Apr. 20,
2015).
                                              4
would accept, on the other.’”9 Plaintiff claims that Defendants were aware that he had a

special disadvantage when negotiating the Mortgage. Delaware law is clear, however,

that while the unconscionability test involves “the question of whether the provision

amounts to the taking of an unfair advantage by one party over another,” a “mere

disparity between the bargaining powers of parties to a contract will not support a finding

of unconscionability.”10    Instead, “‘[a] court must find that the party with superior

bargaining power used it to take unfair advantage of his weaker counterpart.’” 11 In

reading the Plaintiff’s complaint, it is clear that he has failed to plead facts sufficient to

establish his claim for unconscionability, and therefore, his unconscionability claim is

dismissed.

       Plaintiff also brings a slander of title claim against Defendants, basing his claim on

the premise that Defendants concealed the possibility of securitization from him, and

challenging the validity of First Tennessee’s assignment of the Note and Mortgage to

MLHL. Defendants argue that Plaintiff’s claim fails because Plaintiff lacks standing to

challenge the assignment of the Note to MLHL, and Plaintiff fails to plead malicious

conduct on part of Defendants or special damages, which are two elements of a slander of

title claim.

       A slander of title claim requires a plaintiff “to establish that the defendant

maliciously published a false matter concerning the title of property which caused the


9
  Reserves Mgmt., LLC v. Am. Acquisition Prop. I, LLC, 86 A.3d 1119 (Del. 2014) (quoting
Tulowitzki v. Atl. Richfield Co., 396 A.2d 956, 960 (Del. 1978)).
10
   Id. (internal quotations omitted).
11
   Id. (quoting Graham v. State Farm Mut. Auto. Ins. Co., 565 A.2d 908, 912 (Del. 1989).
                                              5
plaintiff special damages.”12 “Based on contract principals [sic], if a debtor is not a party

to a transfer, not a third party beneficiary, or cannot show it sustained some type of legal

harm as a result of the transfer, it does not have standing to challenge the transfer or

enforcement of the note.”13 Plaintiff is neither a party to the assignment between First

Tennessee and MLHL, nor is he a third party beneficiary to the assignment. Moreover,

he has failed to demonstrate how he sustained any legal harm as a result of the

assignment. Therefore, Plaintiff does not have standing to challenge the assignment of

his Note. Assuming that Plaintiff had standing, he is still unable to survive a motion to

dismiss on his slander of title claim because he has not plead any facts demonstrating that

Defendants acted maliciously. “Maliciousness, an element of slander of title, requires

that the Defendants acted with a wrongful or improper motive or with a wonton disregard

of the Plaintiffs' rights.”14 Plaintiff does not allege any facts that would show Defendants

acted maliciously or had malicious intent when assigning the Note and Mortgage. Thus,

Plaintiff’s claim for slander of title is dismissed.

       In the Complaint, Plaintiff also seeks declaratory relief. First, Plaintiff requests

that the Court declare each parties’ rights and interests with respect to the Note and the

Mortgage. Defendants argue that this claim for declaratory judgment is a premature

effort to prevent the current or future holder of the Note and the Mortgage from


12
   Toelle, 2015 WL 5158276, at *6, n. 69 (citing Rudnitsky v. Rudnitsky, 2000 WL 1724234, *12
(Del. Ch. Nov. 14, 2000)).
13
   Id., at *3 (citing Branch Banking and Trust Co. v. Eid, 2013 WL 3353846, *3 (Del Super. Jun.
13, 2013); CitiMortgage, Inc. v. Bishop, 2013 WL 1143670 (Del. Super. Mar. 4, 2013)).
14
   Id., at *6 (citing U.S. Bank Nat’l Assn’ v. Gunn, 2014 WL 1247085, *6 (D. Del. Mar. 25,
2014)).
                                                6
commencing litigation to enforce the Note or foreclose on the Mortgage. Defendants

argue that because neither legal action is currently pending, such request for declaratory

relief is not ripe for review. Second, Plaintiff seeks a declaration that the Mortgage is not

a lien against the property. Defendants again argue that this claim is not ripe.

       In order for the Court to exercise jurisdiction over a claim seeking declaratory

judgment, there must be an “actual controversy” between the parties. 15 The controversy

must have the following prerequisites:

       (1) It must be a controversy involving the rights or other legal relations of
       the party seeking declaratory relief; (2) it must be a controversy in which
       the claim of right or other legal interest is asserted against one who has an
       interest in contesting the claim; (3) the controversy must be between
       parties whose interests are real and adverse; (4) the issue involved in the
       controversy must be ripe for judicial determination.16

In this matter, Defendants challenge the fourth prerequisite—whether there is an actual

controversy before the Court that is ripe for adjudication. A controversy is ripe when it

has “matured to a point where judicial action is appropriate.”17 In determining whether a

claim is ripe, the Court must make a “common sense assessment of whether the interests

of the party seeking immediate relief outweigh the concerns of the court in postponing

review until the question arises in some more concrete and final form.”18 The Court will

deem a claim not ripe when it is based on “uncertain and contingent events that may not

occur or where future events may obviate the need for judicial intervention.” 19 Recently,

15
   XI Specialty Ins. Co. v. WMI Liquidating Trust, 93 A.3d 1208, 1217 (Del. 2014) (citing Stroud
v. Milliken Enterprises, Inc., 552 A.2d 476, 480 (Del. 1989)).
16
   Id. (quoting Stroud, 552 A.2d at 479–80 (internal quotations omitted)).
17
   Id. (citing Stroud, 552 A.2d at 480).
18
   Id. (internal quotations omitted).
19
   Id. (internal quotations omitted).
                                               7
the Superior Court dismissed a similar claim for declaratory relief, finding that the

plaintiff did not have standing, and that a ruling as to who owned the real property was

not ripe for adjudication because there was no foreclosure action pending.20 This Court is

bound to follow that reasoning. First, as mentioned supra, Plaintiff lacks standing to

address First Horizon’s assignment and transfer of the Note and the Mortgage. Second,

since no foreclosure action is pending against Plaintiff, Plaintiff’s claim for declaratory

relief is not properly before the Court. Therefore, Plaintiff’s claim for declaratory relief

must be dismissed.

          Finally, Plaintiff asserts that First Tennessee breached a fiduciary duty owed to

Plaintiff. Defendants argue that this claim fails because Plaintiff has not alleged that the

parties had a fiduciary relationship, and even if Plaintiff did allege that they did, his

allegation would fail because creditors do not owe debtors any fiduciary or special duty

in an ordinary commercial relationship. Under Delaware law, the relationship between a

creditor and a debtor is an “ordinary” commercial relationship that does not give rise to

any fiduciary or special duty.21 Therefore, Plaintiff’s claim that First Tennessee breached

a fiduciary duty also fails.

          For the foregoing reasons, the Defendants’ Motion to Dismiss is GRANTED.

          IT IS SO ORDERED this 21st day of January, 2016.




20
     Toelle, 2015 WL 5158276, at *6.
21
     See, e.g., Keith v. Sioris, 2007 WL 544039, *7 (Del. Super. Jan. 10, 2007).
                                                   8
                                                      ______________________________
                                                      Alfred Fraczkowski22
                                                      Judge



cc:       Tamu White, Civil Supervisor, CCP




22
     Sitting by appointment pursuant to Del. Const. Art. IV, § 38 and 29 Del. C. § 5610.
                                                  9
