      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

B A C HOME LOANS SERVICING LP )
F/K/A COUNTRYWIDE HOME LOANS )
SERVICING LP,                 )
                              )
              Plaintiff,      )
     v.                       )                     C.A. No. N10L-01-106 ALR
                              )
DIANA P. CUNNINGHAM AND       )
ANDRE CUNNINGHAM,             )
                              )
              Defendants.     )

                                Submitted: April 25, 2017
                                 Decided: May 1, 2017

                                         ORDER

                     Upon Plaintiff’s Petition for Writ of Possession
                                       GRANTED

      This is a case arising from Defendants’ default on their mortgage and the

subsequent foreclosure proceedings. After sheriff’s sale of the subject property

was complete and in response to Plaintiff’s Petition for Writ of Possession,

Defendants appeared for the first time and made argument regarding a claimed

modification of their loan. Defendants asserted that their communications with the

various loan servicers in this case were inconsistent with Plaintiff’s representations

to the Court, and there was some concern that the actual dealings between the

parties diverged from the legal posture presented during the proceedings.
Accordingly, by Order dated October 11, 2016, this Court denied Plaintiff’s

Petition for Writ of Possession pending an evidentiary hearing.1 Several hearings

were held and the parties supplemented the record with written submissions. The

Court is now satisfied that the record is fully developed and the issue of

Defendants’ alleged loan modification can be decided as a matter of law.

      Upon consideration of the Petition for Writ of Possession filed by Plaintiff;

statutory and decisional law; the Superior Court Civil Rules; the facts, arguments,

and legal authorities set forth by the parties; and the entire record in this case, the

Court hereby finds as follows:

      1.     Plaintiff is a Delaware limited partnership that operates as a subsidiary

of Bank of America, N.A. (“Bank of America”). Defendants are individuals and

citizens of Delaware who are self-represented litigants.

      2.     On June 13, 2007, Defendants executed a promissory note (“Note”)

for a $600,619.00 loan in favor of the Note’s original holder, Countrywide Bank,

FSB, a subsidiary of Countrywide Financial Corp. (collectively “Countrywide”).

On the same day, Defendants executed and delivered a mortgage (“Mortgage”) on

a single-family residential property located in Middletown, Delaware (“Property”)

as security for the Note.



1
 BAC Home Loans Serv. LP v. Cunningham, 2016 WL 5937805 (Del. Super. Oct.
11, 2016).
                                          2
      3.     Defendants have lived at the Property since June 2007, and currently

reside at the Property with their family.

      4.     By their terms, the Note and Mortgage are transferable without notice

to the borrower. Moreover, the Mortgage provides that a sale or transfer of the

Note or Mortgage may result in a change in the borrower’s loan servicer. The loan

servicer assumes certain rights under the Mortgage, including the collection of

periodic payments from the borrower. The Mortgage permits the holder of the

Note to foreclose on the Property if Defendants fail to make timely payments at the

contract rate.

      5.     In July 2008, Bank of America acquired Countrywide and obtained

substantially all of Countrywide’s home mortgage business. Countrywide became

a wholly owned subsidiary of Bank of America. Bank of America ceased using the

Countrywide name in April 2009. As a Bank of America home mortgage

subsidiary, Plaintiff is the current owner of the Note.

      6.     Defendants have had three separate loan servicers since 2008.

Bayview Loan Servicing, LLC was Defendants’ first loan servicer. OCWEN Loan

Servicing, LLC was Defendants’ second loan servicer. Caliber Home Loans, Inc.

is Defendants’ third and current loan servicer.

      7.     On January 13, 2010, Plaintiff filed a complaint in Superior Court

seeking entry of judgment against Defendants for the principal sum owed on the


                                            3
Note. According to the complaint, Defendants failed to pay required monthly

installments pursuant to the Mortgage when due. The complaint does not specify

exactly when Defendants stopped making monthly payments pursuant to the

Mortgage.      However, Plaintiff’s review of Defendants’ payment history as

reflected in Plaintiffs’ Statement of Amount Due indicates that Defendants owed

$112,554.04 in late charges and unpaid interest at the time Plaintiff filed the

complaint. Defendants concede that they are currently in default of payment on

the Mortgage, and have been for several years.

      8.      The Sheriff’s Office made numerous attempts to serve process on

Defendants at the Property. Service of process was eventually successful on May

28, 2010. Nevertheless, Defendants failed to file an answer or otherwise respond

to Plaintiff’s complaint.

      9.      In the meantime, also in 2010, Plaintiff sent a letter to Defendants

offering a trial loan modification pursuant to the federal Home Affordable

Modification Program (“Trial Modification Offer”).     Defendants made payments

pursuant to the Trial Modification Offer at a reduced mortgage rate for a six-month

period.     After accepting payments for six months, Plaintiff rejected the loan

modification and returned all payments received during the six-month period.

      10.     By letter dated April 21, 2011, after the case docket reflected an

extended period of inactivity, the Court requested that Plaintiff provide a status


                                         4
update. In response, Plaintiff requested that the Court transfer the case to the

dormant docket pending the outcome of an agreement between Plaintiff and

Defendants whereby Plaintiff allowed Defendants additional time to cure their

default. The Court moved the case to the dormant docket as requested.

      11.    On May 11, 2011, only two weeks later, Plaintiff requested that the

case be returned to active status. On the same day, Plaintiff moved for default

judgment against Defendants for the amount owed under the Note and Mortgage.

      12.    On January 12, 2016, Plaintiff purchased the Property as the highest

bidder at sheriff’s sale.2 Defendants received notice of the completed sale but did

not object or otherwise seek to have the sale set aside.

      13.    On April 19, 2016, Plaintiff filed the Petition for Writ of Possession

that is currently before the Court.

      14.    After sheriff’s sale of the Property was finalized and in response to

Plaintiff’s Petition for Writ of Possession, Defendants appeared and contended that

Defendants’ payments pursuant to the Trial Modification Offer constituted a

contractual modification to the original loan.3            The parties presented


2
  Plaintiff assigned its bid to LSF9 Master Participation Trust on or about March
14, 2016. Accordingly, Plaintiff requests that the Writ of Possession currently
before the Court be awarded to LSF9 Master Participation Trust.
3
   During a hearing regarding Plaintiff’s Petition for Writ of Possession on
September 27, 2016, Defendants presented an incomplete version of the Trial
Modification Offer. At that time, Plaintiff represented that Plaintiff could not
locate the Trial Modification Offer nor ascertain the validity of Defendants’
                                          5
inconsistencies in their communications and Plaintiff could not access relevant

documents or respond to the Court’s inquiries regarding the alleged modification.

However, Plaintiff’s counsel did not challenge Defendants’ representations.

Moreover, Plaintiff’s 2011 request to move the case to the dormant docket in a

purported effort to allow Defendants to cure their default, followed by Plaintiff’s

reinitiating of foreclosure proceedings just two weeks later, created further

confusion.4 Accordingly, by Order dated October 11, 2016, this Court denied

Plaintiff’s Petition for Writ of Possession pending an evidentiary hearing.5

      15.     On February 2, 2017, the Court conducted an evidentiary hearing

regarding Plaintiff’s Petition for Writ of Possession and the parties supplemented

the record.

      16.     On April 25, 2017, the evidentiary hearing was resumed and the Court

considered additional argument and testimony. Upon conclusion of the April 25,

allegations. Plaintiff explained that it was unable to locate pertinent records of the
mortgage mediation process due to the numerous changes in loan servicers and
Plaintiff’s counsel of record. Although Plaintiff has undergone multiple changes in
counsel of record over the course of this litigation, no substitutions of counsel are
reflected on the case docket.
4
  Plaintiff could not respond to the Court’s inquiry as to why the case was on the
dormant docket for only a two-week period. Plaintiff’s current counsel contacted
Plaintiff’s former attorney, who had no recollection as to why the case was on the
dormant docket for such a short time and no access to relevant records or
documents. However, the timing and change in Plaintiff’s position appeared to the
Court to reflect the alleged timing and change in the loan servicer’s position
regarding a potential modification.
5
  BAC Home Loans Serv. LP v. Cunningham, 2016 WL 5937805 (Del. Super. Oct.
11, 2016).
                                          6
2017 hearing, the Court closed the evidentiary record and took the matter under

advisement.

      17.     This Court finds that Defendants’ objection to Plaintiff’s Petition for

Writ of Possession is untimely. Superior Court Civil Rule 69(d) provides:

      Return of sheriff’s sale of real estate shall be made on the third
      Monday of the month succeeding the date of the sale and applications
      to set aside such sales shall be made on or before the first Thursday
      succeeding said return date, and all such sales not objected to on or
      before the first Thursday, shall on the first Friday, be confirmed as a
      matter of course.

Delaware courts have repeatedly recognized that an objection to a foreclosure sale

after the applicable confirmation period has elapsed is untimely unless the Court

finds lack of notice, excusable neglect, or a defect in the sale procedures.6

      18.     In this case, Defendants received notice of a completed sheriff sale of

the Property on March 16, 2016. Plaintiff filed the Petition for Writ of Possession

on April 19, 2016. The record reflects that Defendants did not object to Plaintiff’s

Petition for Writ of Possession or otherwise seek to have the sale set aside until

July 26, 2016, when Defendants appeared in response to this Court’s Rule to Show

Cause.7 By that time, the sale of the Property was finalized and the time period


6
  Deutsche Bank Nat. Trust Co. v. Goldfelder, 2014 WL 644442, at *3 (Del. Feb.
14, 2014) (citing Deibler v. Atl. Props. Grp., 652 A.2d 553, 556 (Del. 1995));
Shipley v. New Castle Cnty., 975 A.2d 764, 771 (Del. 2009) (citing Swiggett v.
Kollock, 1866 WL 949, at *2–3 (Del. Super. Oct. 1, 1866)); Mortg. Electr. Reg.
Sys., Inc. v. Charalambous, 2012 WL 1409630, at *2 (Del. Super. Jan 13, 2012).
7
  See 10 Del. C. § 5012.
                                           7
under Rule 69(d) had elapsed. Moreover, this Court does not find that Defendants

lacked notice of the sale, that the sale procedures were defective, or that excusable

neglect is applicable. To the contrary, Defendants did have notice of the sale, the

sale procedures were not defective, and there is no excusable neglect.

Accordingly, this Court finds that Defendants request to set aside the foreclosure

sale of the Property is untimely and procedurally barred.

      19.    Even if this Court accepted Defendants’ objection as a timely attempt

to set aside the Property’s sale, Defendants are not entitled to the requested relief.

Upon consideration of the Trial Modification Offer and the supplemented

evidentiary record, this Court finds that Defendants have not presented sufficient

evidence to establish that Defendants entered into a valid and finalized

modification of the original loan. The record supports Plaintiff’s position that the

Mortgage and Note are the controlling contract between the parties and that the

Petition for Writ of Possession must be granted. Moreover, there is no dispute that

Defendants are in default of payments.

       20.   In analyzing the validity of an alleged mortgage modification, the

Court must differentiate between finalized contractual amendments to the original

loan agreement and post-default negotiations.8 While a valid modification may be



8
 See Wells Fargo Bank, N.A. v. Williford, 2011 WL 5822630, at *3 (Del. Super.
Nov. 17, 2011).
                                          8
asserted by a mortgagor under the affirmative defense of avoidance,9 post-default

negotiations are considered irrelevant to the validity or legality of the mortgage

documents.10

      21.   The Trial Modification Offer contains certain conditions for

Defendants to become eligible for a permanent modification of their loan.11 In

addition to requiring a series of initial mortgage payments at a revised rate,12 the

Trial Modification Offer requires Defendants to submit various financial

documents and income statements so that the loan servicing entity can assess

Defendants’ eligibility for a finalized modification.13       Moreover, the Trial

Modification Offer provides that a permanent loan modification is conditioned

upon an independent modification agreement that is to be executed by the parties



9
   Id. (citing Gordy v. Preform Bldg. Components, 310 A.2d 893, 893–94 (Del.
Super. 1973)); see also United States v. Golden Acres, Inc., 520 F. Supp. 1073,
1079 (D. Del. 1981) (recognizing that parties to a mortgage may make enforceable
agreements modifying the terms of payment, and that in some circumstances a
mortgagee’s conduct may create an estoppel that bars foreclosure).
10
    Christiana Falls, L.P. v. First Fed. Savs. & Loan Ass’n of Norwalk, 1986 WL
18356, at *1 (Del. Dec. 30, 1986).
11
    Pl. Ex. 2 at 15 (“I understand that the Plan is not a modification of the Loan
Documents and that the Loan Documents will not be modified unless and until (i) I
meet all the conditions required for modification, (ii) I receive a fully executed
copy of a Modification Agreement, and (iii) the Modification Effective Date has
passed. I further understand and agree that the Servicer will not be obligated or
bound to make any modification of the Loan Documents if I fail to meet any one of
the requirements under this Plan.”).
12
   Id. at 1–2, 14.
13
   Id. at 1–4, 13–15.
                                         9
after Plaintiff verifies Defendants’ eligibility.14       The Trial Modification Offer

certifies that Defendants “provided documentation for all income that

[Defendants’] receive”15 and reiterates that “[t]he Trial Period Plan is the first step.

Upon approval of the return documentation, we will finalize your modified loan

terms and send you a loan modification agreement . . . you will need to sign and

promptly return to us both copies of the Modification Agreement before your loan

can be permanently modified.”16           The Trial Modification Offer required

Defendants to complete and return all documentation by April 1, 2010.17

      22.      This Court finds that Defendants have not demonstrated that

Defendants fulfilled the necessary conditions for a permanent loan modification

pursuant to the Trial Modification Offer.             Specifically, the record does not

establish that Defendants submitted the required financial documents in a timely

fashion, and it is undisputed that the parties never entered into an independent

modification agreement as required by the Trial Modification Offer for a finalized

amendment to the loan.

      23.      This Court understands Defendants’ frustration with the troubling

post-default    negotiation   process    in    this     case.   Indeed,   the   confusing

communications between the parties and inconsistent presentations to this Court

14
   Id. at 13, 15, 20.
15
   Id. at 13 (emphasis in original).
16
   Id. at 20.
17
   Id. at 1–4, 14.
                                          10
are reflected in the case docket and necessitated the expansion of the evidentiary

record.   However, other than the payments that were returned after the trial

modification period as noted, Defendants have resided at the Property since June

2007 and have made no payments towards their indebtedness since before the

initiation of these foreclosure proceedings. Upon consideration of the

supplemented evidentiary record, this Court finds that Defendants are not entitled

to relief as a matter of law or equity.

      NOW, THEREFORE, this 1st day of May, 2017, Plaintiff’s Petition for

Writ of Possession is hereby GRANTED. The Writ of Possession is hereby

STAYED until July 5, 2017.

      IT IS SO ORDERED.

                                               Andrea L. Rocanelli
                                               _____________________________
                                               The Honorable Andrea L. Rocanelli




                                          11
