                                       SUPERIOR COURT
                                                 OF THE
                                    STATE OF DELAWARE
Jeffrey J Clark                                                                Kent County Courthouse
    Judge                                                                           38 The Green
                                                                                    Dover, DE 19901
                                                                               Telephone (302)735-2111

                                            October 5, 2016


Mr. Pedro Rivera & Antonia Castillo                       Daniel T. Conway, Esq.
275 Gravelly Run Branch Road                              Atlantic Law Group, LLC
Clayton, DE 19938                                         512 East Market
                                                          Georgetown, DE 19947

                                   Submitted: September 30, 2016
                                     Decided: October 5, 2016

        Re:       JP Morgan Chase Bank v. Pedro Rivera & Antonia Castillo
                  K15L-09-011 JJC

Dear Mr. Rivera, Ms. Castillo & Mr. Conway:
        The matter involves a mortgage foreclosure complaint filed by Plaintiff JP
Morgan Chase Bank (hereinafter “JP Morgan”) against Defendants Pedro Rivera and
Antonia Castillo (hereinafter collectively “Defendants”). Defendants filed a motion
to dismiss JP Morgan’s complaint, arguing that JP Morgan did not comply with the
requirements of 10 Del. C. § 5062A.1 Pursuant to that section, a bank in a foreclosure

        1
            Subsection (b), of section 5062A, provides that
                 (b) No judgment may be entered in any mortgage foreclosure action
                 . . . unless the plaintiff has filed a fully executed affidavit asserting:
                 (1) That the defendant has been provided with the opportunity to
                 apply for relief under any loss mitigation program for which the
                 defendant may be eligible . . ., and
action must file a loss mitigation affidavit certifying that the bank has advised the
homeowner of available programs for modification or mitigation of the loans at issue.2
That section also provides that if certain representations in the statutorily required loss
mitigation affidavit are false, then “the foreclosure action shall be dismissed by the
court without prejudice . . . .”3
       Defendants filed the present motion to dismiss and at oral argument on the
motion alleged that the affidavit filed by JP Morgan was false. JP Morgan denied that
the representations in its affidavit were false. Accordingly, the Court held an
evidentiary hearing to determine whether the affidavit at issue included false statements
referencing the requirements of paragraphs (b)(1) and (b)(2) of section 5062A. The
affidavit at issue, filed by JP Morgan, tracked the section’s statutory language. In the
affidavit, Petraq Stefanllari, a Vice President at JP Morgan, attested to the fact that
Defendants were “ineligible for any applicable loss mitigation program due to the
Borrower’s failure to apply, or failure to provide required information, or failure to
complete the requirements of the program.”4
       At the hearing, Defendants introduced JP Morgan’s May 5, 2016 letter to
Plaintiff confirming that JP Morgan cancelled its review of potential mortgage and loan
modifications. The reasons cited in the letter included that Defendants “told us that you


                 (2) That the loan secured by the mortgage for the plaintiff seeks
                 foreclosure is:
                 a. Not subject to a loss mitigation program; or
                 b. Is ineligible for any applicable loss mitigation program due to the
                 defendant’s failure to apply, or failure to provide required information,
                 or failure to complete the requirements of the program; or
                 c. Is determined by the plaintiff to be otherwise ineligible for any
                 applicable loss mitigation program.
       2
           Id. at § 5062A(a).
       3
           Id. at § 5062A(c).
       4
           Pl. Ex. No. 3.

                                                    2
no longer want to be reviewed for mortgage assistance . . .[and you] told us you don’t
want to participate in the program.”5 Consistently with this May 5th letter, JP Morgan
submitted a letter from Defendant Rivera to JP Morgan stating that “ I hereby order
ALL actions to be stopped . . .” which referred to the request for review for
modification under consideration at the time.6 Through JP Morgan’s witness, Frank
Dean, it also introduced a phone log that Defendants conceded was accurate. The
phone log confirmed that Mr. Rivera called JP Morgan prior to the execution of the
affidavit for a “verbal opt out” of the loss mitigation program.7
      Defendant Rivera testified at the hearing that he admits that he asked JP Morgan
to place consideration of “RMA #8" (the request for modification that was pending
immediately before JP Morgan filed the affidavit) on hold. He testified, however, that
prior to telling JP Morgan to cease work on modification matters, he had sent them a
qualified written request as provided for in the Real Estate Settlement Procedures Act
(hereinafter “RESPA”).8 Defendants also offered the testimony of Christopher Yates,
a realtor who Defendants sought the help of during the modification process. Mr.
Yates testified that JP Morgan was not responsive enough to enable him to help the
Defendants with modification efforts.
      At the hearing, Defendants seemed to no longer contest the accuracy of the
affidavit at issue. Rather, Defendants argued that because they had issued a qualified
written request for information pursuant to RESPA, everything in the mortgage
foreclosure process should have been stayed. Specifically, Defendants relied on



      5
          Id.
      6
          Def. Ex. No. 1.
      7
          Pl. Ex. No. 2.
      8
          12 U.S.C. § 2601 et seq.

                                           3
Section 6 of RESPA9, without citing a remedy provision that would impact the state
mortgage foreclosure process at issue.
      Here, the statute requiring the filing of a loss mitigation affidavit provides for
potential dismissal of the action without prejudice. Since the parties contested the truth
of the statements in the affidavit, an evidentiary hearing was necessary regarding that
narrow issue. Since the statute frames the matter as a defendant’s motion to dismiss,
the burden is on the Defendants to establish the falsity of the relevant statements in the
affidavit by a preponderance of the evidence.
      After considering the testimony and evidence at the hearing, the matter before
the Court is essentially uncontested. Namely, the Court finds that Defendants, both in
writing and orally, requested that all loss mitigation matters cease.          This was
substantiated by a letter from Defendant Rivera and a phone log from JP Morgan
confirming a telephone call by Defendants opting out of loss mitigation efforts.
Defendants did not contest the accuracy of these documents at the hearing. That
Defendant became frustrated at what he alleges was a lack of response from JP Morgan
does not establish the falsity of JP Morgan’s Vice President’s representations in his
affidavit. Based on the evidence presented, the Court finds that the statement in the
affidavit was truthful. Accordingly, Defendants’ motion to dismiss is DENIED.
      IT IS SO ORDERED

                                                       /s/Jeffrey J Clark
                                                               Judge




      9
          Id. at § 2605.

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