       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.     )

                ORDER SCHEDULING EVIDENTIARY HEARING

      This is a mortgage foreclosure case. As set forth below, the actual dealings

between the parties diverge from the legal posture presented in the court

proceedings. Upon consideration of statutory and decisional law; the Superior

Court Rules of Civil Procedure; the facts, arguments, and legal authorities set forth

by the parties; and the entire record in this case, the Court hereby finds as follows:


I.    The 2007 Mortgage and Note

      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 loan in favor of the Note’s original holder, Countrywide Bank,
FSB,    a   subsidiary    of   Countrywide       Financial    Corporation     (collectively

“Countrywide”). On the same day, Defendants executed and delivered a mortgage

on their home (“2007 Mortgage”) as security for the Note.

       3.     The 2007 Mortgage permits the sale or transfer of the Note, together

with the 2007 Mortgage, without prior notice to the mortgagor.1                 The 2007

Mortgage provides that the sale or transfer of the Note and/or 2007 Mortgage may

result in a change of the mortgagor’s loan servicer.2 By the 2007 Mortgage’s

terms, the loan servicer assumes certain rights under both documents, including the

collection of periodic payments.3 The 2007 Mortgage allows the holder of the

Note to foreclose on Defendants’ home if Defendants fail to make timely payments

at the contract rate.4

       4.     In July of 2008, Bank of America acquired Countrywide as part of a

stock-for-stock merger transaction valued at approximately $4.1 billion.5              The

merger coincided with the 2007-2008 United States subprime mortgage crisis, and

shortly preceded Federal Trade Commission charges against Countrywide for




1
  2007 Mortgage at ¶ 20.
2
  Id. The 2007 Mortgage also provides that “[t]here also might be one or more changes of the
Loan Servicer unrelated to a sale of the Note.” Id.
3
  Id.
4
  Id. at ¶ 9.
5
  Allstate Ins. Co. v. Countrywide Fin. Corp., 842 F. Supp. 2d 1216, 1221 (C.D. Cal. 2012).
                                             2
deceptive loan servicing practices aimed at increasing profits from default-related

service fees during hard economic times.6

       5.     Bank of America obtained substantially all of Countrywide’s home

mortgage business.7 Countrywide became a wholly owned subsidiary of Bank of

America. Bank of America ceased using the Countrywide name in April 2009.8

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 (“Bayview”) was Defendants’ first loan servicer.

OCWEN Loan Servicing, LLC (“OCWEN”) was Defendants’ second loan

servicer. 9 Caliber Home Loans, Inc. (“Caliber”) is Defendants’ third and current


6
  See Press Release, F.T.C., Countrywide Will Pay $108 Million for Overcharging Struggling
Homeowners; Loan Servicer Inflated Fees, Mishandled Loans of Borrowers in Bankruptcy (June
7, 2010), https://www.ftc.gov/news-events/press-releases.2010/06/countrywide-will-pay-108-
million-overcharging-struggling.
7
  Allstate Ins. Co., 842 F. Supp 2d at 1222.
8
  SEC v. Mozilo, 2010 WL 3656068, at *2 n.2 (C.D. Cal. Sept. 16, 2010).
9
  OCWEN has come under significant scrutiny from both consumers and financial regulators for
its loan servicing practices, including questionable modifications and wrongful initiation of
foreclosure proceedings. See Michael Corkery, Mortgage Servicer Ocwen Subpoenaed by S.E.C.
Over         Its      Business      Ties,     N.Y.       TIMES      (Aug.     19,      2014),
http://dealbook.nytimes.com/2014/08/19/ocwen-subpoenaed-by-s-e-c-related-to-its-business-
ties/; Peter Eavis, Regulator Finds Deficiencies With Mortgage Servicer Ocwen Financial, N.Y.
TIMES (Dec. 16, 2014), http://dealbook.nytimes.com/2014/12/16/regulator-finds-deficiencies-
with-mortgage-servicer-ocwen-financial/; James Sterngold & Alan Zibel, Ocwen Head to Resign
in New York Settlement, THE WALL STREET JOURNAL (Dec. 22, 2014),
http://www.wsj.com/articles/ocwen-head-to-resign-in-new-york-settlement-1419224476.       The
propriety of OCWEN’s financial services has also been the center of federal litigation in
jurisdictions throughout the United States. See, e.g., Bridge v. Ocwen Fed. Bank, FSB, 681 F.
Supp. 3d 355 (6th Cir. 2012); Poynter v. Ocwen Loan Servicing, LLC, 2016 WL 5380926 (W.D.
Ky. Sept. 23, 2016); Delgado v. Ocwen Loan Servicing, LLC, 2016 WL 4617159 (E.D. N.Y.
                                             3
loan servicer. The record does not reflect the time periods during which each

entity serviced the loan at issue.

       7.     According to Defendants, at some point during 2010, Defendants

entered into a valid and enforceable modification of the 2007 Mortgage (“2010

Modification”),10 pursuant to which Defendants made payments for a six-month

period. According to Defendants, after accepting payments for six months, the

loan servicing entity began refusing payments and returned all payments received

during the six-month period.11

       8.     In the meantime, also in 2010, Plaintiff filed suit against Defendants

and served process based on the 2007 Mortgage.

       9.     According to Plaintiff, at some point during 2012, an offer for a

second modification of the 2007 Mortgage was made to Defendants by OCWEN

(“2012 Modification Offer”).12 Defendants allege that they never received the

2012 Modification Offer, and Plaintiff could not establish that OCWEN ever

actually relayed the offer to Defendants. Defendants represented to the Court that



Sept. 2, 2016); Cornejo v. Ocwen Loan Servicing, LLC, 151 F. Supp. 3d 1102 (E.D. Cal. 2015);
Lage v. Ocwen Loan Servicing, LLC, 145 F. Supp. 3d 1172 (S.D. Fla. 2015); Abraham v. Ocwen
Loan Servicing, LLC, 2014 WL 5795600 (E.D. Pa. Nov. 7, 2014); Drake v. Ocwen Fin. Corp.,
2010 WL 1910337 (N.D. Ill. May 6, 2010).
10
   During a hearing on Plaintiff’s Petition for Writ of Possession on September 27, 2016,
Defendants presented a document evidencing the 2010 Modification.
11
   It is not clear whether the loan servicing entity that eventually disavowed the 2010
Modification was Bayview or OCWEN.
12
   A document stating OCWEN’s 2012 Modification Offer was presented to the Court during a
hearing on Plaintiff’s Petition for Writ of Possession on September 27, 2016.
                                             4
they would have accepted the 2012 Modification Offer if it had been relayed to

them.

        10.   Plaintiff’s most recent position is that loan modification is no longer

an option for Defendants.

II.     The Foreclosure Proceedings

        1.    On January 13, 2010, Plaintiff filed a Complaint in Superior Court

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

Note after Defendants allegedly failed to make timely payments pursuant to the

2007 Mortgage, which was attached to the Complaint as “Exhibit A.”

        2.    From February 19 to March 3, 2010, the Sheriff’s Office made four

attempts to serve process on Defendants at Defendants’ listed address. Service of

process was unsuccessful during this period.

        3.    On May 28, 2010, the Sheriff’s Office served process on Defendants.

        4.    By Letter dated April 21, 2011, after the case docket reflected an

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

        5.    By Letter dated April 22, 2011, Plaintiff requested the Court to

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.

        6.    On April 25, 2011, the case was transferred to the Dormant Docket.


                                          5
       7.      By Letter dated May 11, 2011, after only two weeks on the Dormant

Docket, Plaintiff requested the Pronthonotary to return the case to active status.13

       8.      Also on May 11, 2011, Plaintiff moved for default judgment against

Defendants pursuant to Rule 55(b)(1) of the Superior Court Rules of Civil

Procedure for the amount owed under the Note and 2007 Mortgage.

       9.      On July 11, 2011, the Court awarded default judgment against

Defendants by virtue of a Writ of Levari Facias.14

       10.      A Sheriff’s sale of Defendants’ property was scheduled for

September 12, 2011.          The Sheriff’s sale of Defendants’ property was stayed

multiple times between September 2011 and November 2015.

       11.     On January 12, 2016, Defendants’ property was purchased by Plaintiff

as the highest bidder at Sheriff’s sale.15

       12.     On April 19, 2016, Plaintiff filed a Petition for Writ of Possession of

the property pursuant to 10 Del. C. § 5011.




13
   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 has no recollection as to why the case was on the Dormant Docket for such a short
time, and has no access to relevant records or documents. However, the timing and change in
Plaintiff’s legal position may reflect the alleged timing and change in the loan servicer’s position
regarding the 2010 Modification.
14
   See 10 Del. C. § 5063.
15
   Plaintiff assigned its bid on Defendants’ property 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.
                                                 6
      13.     By Order dated May 25, 2016, this Court issued a Rule to Show

Cause upon Defendants pursuant to 10 Del. C. § 5012.             The Court ordered

Defendants to appear to show cause as to why Plaintiff’s Petition for Writ of

Possession should not be granted.

      14.     On July 26, 2016, a hearing was held regarding Plaintiff’s Petition for

Writ of Possession (“July 26 Hearing”). During the July 26 Hearing, the parties

presented inconsistencies in their communications and represented that the

mortgage mediation process was ongoing. The July 26 Hearing was continued for

sixty days to provide the parties additional time for mediation and to gather

relevant documents.

      15.     On September 27, 2016, the hearing regarding Plaintiff’s Petition for

Writ of Possession resumed (“September 27 Hearing”). Plaintiff represented that

OCWEN refused to engage in additional modification negotiations with

Defendants.

      16.     At the conclusion of the September 27 Hearing, the Court ordered the

parties to appear for an additional evidentiary hearing. This is the Court’s Order

scheduling the evidentiary hearing.




                                          7
III.   Legal Standard

       1.      The Court has significant discretion in managing mortgage

foreclosure proceedings in the interest of justice and equity.16

       2.      “[A] mortgagor’s defenses in a mortgage foreclosure action are

limited to defenses to the mortgagor’s obligations under the mortgage.” 17 In other

words, the appropriate defense in a mortgage foreclosure action is a defense that is

related to the terms of the mortgage itself.18               In the context of a mortgage

modification, the Court must differentiate between valid contractual amendments

to the original loan agreement and post-default negotiations.19 While mortgage

modifications may be validly asserted by a mortgagee under the affirmative

16
   See, e.g., Deutsche Bank Nat’l Tr. Co. v. Goldfelder, 2014 WL 644442, at *3–4 (Del. Feb. 14,
2014) (affirming the Superior Court’s broad discretion to consider a myriad of factors in
interpreting Rule 69(d) of the Superior Court Rules of Civil Procedure in the context of a motion
to vacate the sale of property on execution); Burge v. Fidelity Bond & Mortg. Co., 648 A.2d 414,
420 (Del. 1994) (citing Petition of Adair, 190 A. 105, 107 (Del. Super. 1936)) (“Judicial review
of a contested sheriff’s sale implicates the court’s inherent equitable power to control the
execution process and functions to protect the affected parties from injury or injustice.”); Monroe
Park v. Metropolitan Life Ins. Co., 457 A.2d 734, 737 (Del. 1983) (“The equitable power to
disregard defects in the execution of a mortgage is based upon two equitable maxims. First,
equity regards substance rather than form. Second, equity regards that as done which in good
conscience ought to be done.” (internal citations omitted)); Mortg. Elec. Registration Sys., Inc. v.
Johnson, 2007 WL 2792242, at *2 (Del. Super. Sept. 25, 2007) (quoting Burge, 648 A.2d at 422)
(“Although the Superior Court has concurrent jurisdiction with the Court of Chancery to
foreclose on a mortgage, such proceedings are historically and remain inherently equitable.”).
See also 10 Del. C. § 5061(d) (granting the Superior Court the authority to make all necessary
rules respecting the process, manner, required notice, and methods of proof relating to mortgage
foreclosure proceedings).
17
   McCafferty v. Wells Fargo Bank, N.A., 2014 WL 7010781, at *2 (Del. Dec. 8, 2014) (citing
Brooks v. BAC Home Loans Servicing, LP, 2012 WL 337238, at *2 (Del. Aug. 23, 2012)).
18
   McCafferty, 2014 WL 7010781, at *3 (citing Harmon v. Wilmington Trust Co., 1995 WL
379214, at *3 (Del. June 19, 1995)).
19
   See Wells Fargo Banks, N.A. v. Williford, 2011 WL 5822630, at *3 (Del. Super. Nov. 17,
2011).
                                                 8
defense of avoidance,20 post-default negotiations are considered irrelevant to the

validity or legality of the mortgage documents.21

       3.     Upon application of a writ of possession by the valid purchaser of a

property sold on execution, the Court must grant a rule to show cause on a

defendant who is in occupation of the sold property.22 A writ of possession shall

not issue until the Court makes the rule to show cause absolute.23

IV.    Questions of Law and Fact

       1.     There are legal and factual questions regarding whether the 2007

Mortgage is the controlling contract between the parties.

       2.     There are legal and factual questions regarding the validity of the

default judgment requested by Plaintiff on the same day that the case was moved

from the Dormant Docket.

       3.     The 2007 Mortgage and Note have a complex history since their

acquisition by Plaintiff. Furthermore, Plaintiff has had multiple attorneys from




20
   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).
21
   Christiana Falls, L.P. v. First Fed. Sav. & Loan Ass’n of Norwalk, 1986 WL 18356, at *1
(Del. Dec. 30, 1986).
22
   10 Del. C. § 5012.
23
   Id.
                                             9
three different law firms since this case’s inception in 2010.24 The 2007 Mortgage

and Note’s complicated chain of ownership and servicers in conjunction with

Plaintiff’s changes in counsel has resulted in inconsistent communications and

confusion. For example, Plaintiff has been unable to access relevant documents or

fully respond to the Court’s inquiries.25 Moreover, Defendants have represented

that their communications with the various loan servicers have not been consistent

with Plaintiff’s presentations to the Court.26



24
    Although Plaintiff has undergone multiple changes in counsel of record, no substitutions of
counsel are reflected on the case docket.
25.
         THE COURT: Did this matter get sent to the mortgage mediation program?
         COUNSEL FOR PLAINTIFF: I am not sure if it went through the opt in
         mortgage program that was in effect prior to January 2012, that was on the
         mandatory automatic mortgage foreclosure program went into effect. I know that
         prior to 2012, they would have notices, serviced with a complaint, that indicated
         that you could call the Attorney General’s Office to opt into the program.
         Unfortunately, nothing was filed with the Court. So I am not sure if that is the
         program they participated in.
BAC Home Loans Servicing LP v. Cunningham, C.A. No. N10L-01-106 ALR at 11 (July 26,
2016) (TRANSCRIPT);
         COUNSEL FOR PLAINTIFF: As regards to the file being on the dormant docket
         for two weeks, I contacted the attorney who handled the matter at that time,
         [Plaintiff’s former attorney]. Unfortunately, her prior firm filed for bankruptcy
         and went out of business, so she no longer has access to those records.
BAC Home Loans Servicing LP v. Cunningham, C.A. No. N10L-01-106 ALR at 1–2 (Sept. 27,
2016) (TRANSCRIPT);
         COUNSEL FOR PLAINTIFF: In regards to mediation, there were some questions
         as to whether the parties went through the mediation process through the courts. I
         contacted . . . the program administrator of the prior opt in program which was in
         effect before 2012, and she did not have any records of the parties participating in
         mediation through that program. So, any trial modification that they participated
         would have been outside the Court opt in program.
Id. at 2.
26
         THE COURT: Did you make any other efforts as far as resolving this matter?
         MR. CUNNINGHAM: No, not that I am aware of. At that point we were not able
         to, not that I am aware of.
                                              10
      4.     Plaintiff has been unable to provide any documentation relating to the

2010 Modification, although Plaintiff’s counsel did not challenge Defendants’

representations during the July 26 Hearing or the September 27 Hearing.27

      5.     According to Defendants, Defendants never received OCWEN’s 2012

Modification Offer, and were unaware of the offer until it was provided by

Plaintiff’s counsel during mediation negotiations in 2016. The 2012 Modification

Offer would have reduced Defendants’ total loan balance by $417,354.46, and

Defendants contend that they would have accepted this offer had they ever

received it. Counsel for Plaintiff was unable to present proof of mailing for the

2012 Modification Offer.

      6.     The Court finds that the 2010 Modification may have a direct impact

on the terms of the 2007 Mortgage itself. Defendants allege that a valid offer for

modification of the 2007 Mortgage was accepted through payments that were made

for a six-month period.       Allowing the presentation of evidence regarding the

alleged modification is an appropriate exercise of the Court’s broad discretion in

        MS. CUNNINGHAM: I was talking to the mortgage companies, they were
        switching mortgage companies. We used to be with Bank of America, then it was
        Bank of America, and then I was, like, talking to Bank of America, then all of a
        sudden like I guess the mortgage company switched to Oxford? The Mortgage
        company kept switching you just keep talking to different people, trying to
        explain your case, they was like give you, I mean, papers they were giving me, we
        couldn’t afford at that time.
BAC Home Loans Servicing LP v. Cunningham, C.A. No. N10L-01-106 ALR at 10 (July 26,
2016) (TRANSCRIPT);
27
    Plaintiff investigated the 2010 Modification to ascertain the validity of Defendants’
allegations. Plaintiff was unable to access any information regarding the 2010 Modification
because it was allegedly offered by Bayview, Defendants’ first loan servicer.
                                            11
the context of mortgage foreclosure proceedings that will allow Defendants an

opportunity to establish whether there was “fraud, unfairness, or other extraneous

matter demonstrating unfairness to one of the interested parties.” 28 An evidentiary

hearing will permit the Court to address outstanding questions of law and fact

regarding whether the 2010 Modification is an enforceable contractual

modification that supersedes the terms of the 2007 Mortgage, as opposed to part of

post-default negotiations that are unrelated to the 2007 Mortgage’s validity or

legality.29

       7.      The Court also finds that the default judgment sought and entered in

2011 may have lacked an adequate legal basis.

       8.      The parties shall present evidence regarding whether the original

terms of the 2007 Mortgage are valid and enforceable as a matter of law,30 and

whether default judgment should be vacated as “necessary to correct a plain

injustice, inconsistent with principles of equity.”31



28
   Goldfelder, 2014 WL 644442, at *2 (citing Greenpoint Mortg. Funding, Inc. v. McCabe, 2006
WL 3604784, at *1 (Del. Super. Nov. 27, 2006), aff’d sub nom, Pac. W. Grp., Inc. v. Greenpoint
Mortg. Funding, Inc., 933 A.2d 1250 (Del. 2007)).
29
   See Christiana Falls, L.P., 1986 WL 18356, at *1. In the recent Delaware Supreme Court case
of Holsey v. Hynes, appellant asserted that the Superior Court abused its discretion by refusing to
set aside a sheriff’s sale based upon “irregularities and unfairness in the loan process, which gave
rise to the sheriff’s sale proceeding.” 2015 WL 2260114, at *4 (Del. May 11, 2015). The
Supreme Court affirmed the Superior Court’s decision to uphold the sale, in part, because the
record did not contain the requisite evidentiary support for appellant’s claim. Id.
30
   See McCafferty, 2014 WL 7010781, at *3.
31
   Burge, 648 A.2d at 421.
                                                12
      NOW, THEREFORE, this 11th day of October, 2016, Plaintiff’s Petition

for a Writ of Possession is hereby DENIED pending an evidentiary hearing.

The parties are herby ORDERED TO APPEAR on February 2, 2017 at 9:30

a.m. to present evidence regarding whether the 2007 Mortgage is valid and

enforceable as a matter of law, and/or whether the default judgment entered

in favor of Plaintiff should be vacated as a matter of law or equity.

      IT IS SO ORDERED.

                                     Andrea L. Rocanelli
                                     ________________________________
                                     The Honorable Andrea L. Rocanelli




                                       13
