IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROUNDPOINT MORTGAGE
SERVICING CORPORATION, ; C.A. No. K19L-03-014 WLW

Plaintiff,

Vv.

NATHALIE HUBERT-TOUSSAINT :
and LAVERNE M. REEDER,

Defendant.

ORDER

Plaintiff's Motion for Summary Judgment.
Granted.

Catherine DiLorenzo, Esquire of Alba Law Group, Wilmington, Delaware and
Adam V. Orlacchio, Esquire of Blank Rome LLP, Wilmington, Delaware; co-
counsel for Plaintiff.

Nathalie Hubert-Toussaint and Laverne M. Reeder, Smyrna, Delaware; pro se
Defendants.

WITHAM, R.J.
RoundPoint Mortgage v. Hubert-Toussaint
Case No. K19L-03-014
July 16, 2020

INTRODUCTION

Upon consideration of the Motion for Summary Judgment filed by Plaintiff,
RoundPoint Mortgage Servicing Corporation (“RoundPoint’”), the opposition of the
Defendants, Nathalie Hubert-Toussaint and Laverne M. Reeder, and the record of
the case, it appears to the Court that:

FACTUAL AND PROCEDURAL HISTORY

1. On December 31, 2015, Defendants, Nathalie Hubert-Toussaint and
Laverne M. Reeder, executed and delivered a promissory note (the “Note’) in favor
of Primelending, a PlainsCapital Company (“Primelending”), to obtain a mortgage
loan in the amount of $410,000.00 (the “Loan”).' To secure the Loan, Defendants
delivered a mortgage (the “Mortgage”) to Mortgage Electronic Registration System
(MERS) as nominee for Primelending, and the Mortgage was recorded with the Kent
County Recorder of Deeds.” On June 30, 2017, MERS assigned the Mortgage to
RoundPoint, which was also recorded on July 5, 2017 with the Kent County
Recorder of Deeds.

2. On July 1, 2018, Ms. Hubert-Toussaint and Mr. Reeder defaulted on the
Note and the Mortgage by failing to make required monthly payments, and they have
made no payments since for a period of over two years. On March 11, 2019,
RoundPoint commenced foreclosure proceedings by filing the foreclosure

Complaint.°

 

' See Complaint at J 2; see also Complaint Exhibit E.

? See Complaint at 4 2-3.
3 Id. at J 3.

4 Id. at 45.

> See Complaint.
RoundPoint Mortgage v. Hubert-Toussaint
Case No. K19L-03-014
July 16, 2020

3. On April 30, 2019, Ms. Hubert-Toussaint and Mr. Reeder filed an Answer
to the Complaint for Foreclosure of Mortgage, Affirmative Defense and
Counterclaim (the “Counterclaim”).® Pursuant to Rule 12(b)(6) of the Delaware
Superior Court Rules of Civil Procedure, RoundPoint filed a Motion to Dismiss the
Counterclaim.’ The Court granted RoundPoint’s Motion to Dismiss the
Counterclaim on September 26, 2019.

4. On November 19, 2019, Plaintiff filed a Motion for Summary Judgment.®
Defendants originally had until December 1, 2019, to respond to the Motion.
Pursuant to Defendants’ request, this Court extended the time for response until
December 19, 2019. Defendants did not respond to the Motion for Summary
Judgment. On December 23, 2019, Defendants directed a request for discovery
towards Plaintiff. Defendants requested that Plaintiff answered the request in twenty
days. On January 14, 2020, Plaintiff requested additional time to answer discovery,
and the Court granted the request. On January 24, 2020, Plaintiff asked the Court to
grant leave to produce discovery until this matter was resolved at the Supreme Court
and until this Court made the decision on the Motion for Summary Judgment.’ This
Court denied the request. Plaintiff did not answer the discovery request. On January

30, 2020, Defendants requested this Court to stay the Motion for Summary Judgment

 

° See Defendants’ Answer to Complaint for Foreclosure of Mortgage, Affirmative Defense and
counterclaim.

’ Plaintiff's Motion to Dismiss Defendants’ Counterclaim. Defendants also filed Affidavit in Reply
to RoundPoint Motion to Dismiss (the “Affidavit”).

8 See Plaintiff's Motion for Summary Judgment (“P1. Mot.”).
” Defendants in this case also filed an interlocutory appeal in the Supreme Court of Delaware,
which was dismissed.
RoundPoint Mortgage v. Hubert-Toussaint
Case No. K19L-03-014
July 16, 2020

until the discovery request is answered. At this point, the Court is prepared to rule
on the Motion for Summary Judgment, and, therefore, the request is DENIED.
PARTIES’ CONTENTIONS
5. Plaintiff states that because Defendants defaulted on the loan, RoundPoint
is entitled to a foreclosure on the property.'° Plaintiff points out that Defendants did
not present any defenses to the foreclosure action.'! Plaintiff further explains that
Defendants were informed of Plaintiffs intention to accelerate the balance, which
Plaintiff was entitled to, and that Defendants still did not cure the default as of the
date Plaintiff filed the Motion for Summary Judgment.'* Plaintiff argues that there
is no triable issue as to any material fact in this case because “there is ample evidence
to show that a debt secured by the Mortgage existed between Plaintiff and
Defendants and, by not performing, Defendants are in breach of the terms of the
Mortgage.”'? Furthermore, as mentioned above, Defendants here failed to respond
to the Motion for Summary Judgement within the time frame established by this
Court.
STANDARD OF REVIEW
6. Summary judgment will be granted when, viewing all evidence in the light
most favorable to the nonmoving party, the moving party demonstrates that “there

are no material issues of fact in dispute and that the moving party is entitled to

 

10 Pl. Mot. 45.
"| See Id. at 4 8-9.
'2 See Id. at J 10.

'3 Td. at 414.
RoundPoint Mortgage v. Hubert-Toussaint
Case No. K19L-03-014
July 16, 2020

judgment as a matter of law.”'* The moving party bears the initial burden of
demonstrating the nonexistence of material issues of fact; the burden then shifts to
the nonmoving party to show that there are material issues of fact in dispute.'> The
Court views the record in the light most favorable to the nonmoving party.'®

7. If, after discovery, the non-moving party cannot make a sufficient showing
of the existence of an essential element of the case, then summary judgment must be
granted.'’ However, when material facts are in dispute, or “it seems desirable to
inquire more thoroughly into the facts, to clarify the application of the law to the
circumstances,” summary judgment will not be appropriate. '®

DISCUSSION

8. A scire facias action is an action used in connection with proceedings

founded upon a matter of record, such as a mortgage.’? A scire facias action is

strictly an in rem action.”° The defenses and counterclaims which may be pled ina

 

“ Enrique v. State Farm Mutual Auto-Mobile Insurance Co., 2015 WL 6330920, at *3 (Del. Super.
Oct. 14, 2015) aff'd 142 A.3d 506 (Del. 2016) (citing Burkhart v. Davies, 602 A.2d 56, 59 (Del.
1991); see also Super. Ct. Civ. R. 56(c).

'S Bishop v. Progressive Direct Insurance Co., 2016 WL 7242582, at *1 (Del. Super. Dec. 15,
2016).

'6 Moore v. Sizemore, 405 A.2d 679, 680 (Del. Aug. 6, 1979).

7 Slaubaugh Farm, Inc., et. al. v. Farm Family Cas. Ins. Co., 2018 WL 5473033, at *2 (Oct. 29,
2018) (citing Burhart, 602 A.2d at 59 cert. den., 504 U.S. 912 (1992); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-24 (1986)).

'8 Ebersole v. Lowengrub, 180 A.2d 467, 468-69 (Del.1962).

'° US Bank National Association v. Gilbert, 2014 WL 595510, at *3 (Del. Super. Jan. 15, 2014)
(citing Woolley on Delaware Practice, p. 889, Section 1309, p. 932, Section 1386).

20 Id. (citing Woolley on Delaware Practice, p. 889, Section 1309, p. 932, Section 1386).
RoundPoint Mortgage v. Hubert-Toussaint
Case No. K19L-03-014
July 16, 2020

scire facias mortgage action are limited by well settled Delaware law.”! “Defenses
to a scire facias sur mortgage action are limited to satisfaction, payment, or
avoidance of the deed.””* Defendants here did not raise any valid arguments related
to satisfaction, payment, or avoidance. In this case, Defendants filed a Counterclaim
and argued that they repaid the debt using a coupon. The Counterclaim was litigated
and dismissed through a Motion to Dismiss pursuant to Superior Court Civil Rule
12(b)(6).” As stated above, Defendants defaulted on the loan in 2018. At the time
Plaintiff filed the Motion for Summary Judgment, Defendants has not cured the
default. Therefore, Plaintiff is entitled to foreclose on the property.

9. Defendants have asked to stay the Motion for Summary Judgment until
Plaintiff responds to Defendants’ discovery request. The request was filed after the
deadline for Defendants’ response to the Motion already expired.”4 Moreover,
regardless of this request for discovery, no material issues of fact exist in the case at
this point. Furthermore, it is obvious from the record of this case that Defendants
have used what can best be described as innovative and dilatory techniques to

prolong the proceedings so that they can remain on the property without making the

 

“1 Td.
22 Id. (citing Gordy v. Preform Building Components, Inc., 310 A.2d 893 (Del. Super. Ct. 1973).

3 RoundPoint Mtg. Service Corp. v. Hubert-Toussaint and Reeder, No. K19L-03-014 Witham, J.
(Sept. 26, 2019) (ORDER). The Court stated, “[i]n sum, Defendants state no viable claim for relief.
It appears to the Court that the allegations in the Defendants’ Counterclaim...are without merit.
Furthermore, Defendants could be sanctioned by the Court because their Counterclaim appears to
be frivolous, and it is a waste of the Court’s resources. It should be noted that Defendants continue
restating their claims in two separate filings using what seems to be intentionally misleading and
confusing language filled with meaningless legalese.”

4 Even though the request was dated December 17, 2019, it was filed on December 23, 2019. The
deadline for Defendants’ response to the Motion for Summary Judgment was December 19, 2019.

6
RoundPoint Mortgage v. Hubert-Toussaint
Case No. K19L-03-014
July 16, 2020

payments on the underlying debt obligation. Therefore, Plaintiff is entitled to a

judgment as a matter of law.

 

CONCLUSION
10. For the foregoing reasons, Plaintiff's Motion for Summary Judgment is
GRANTED.
IT ISSO ORDERED.
/s/_ William L. Witham, Jr.
Resident Judge
WLW/dmh
