      IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE

                                IN AND FOR SUSSEX COUNTY

                                                 )
                                                 )
CAPITAL ONE BANK (USA), N.A.,                    )
                                                  )
                Plaintiff,                        )
       v.                                         )          C.A. No. CPU6-13-000334
                                                  )
                                                  )
                                                  )
LINDA M. KELLY,                                   )
                                                  )
                Defendant,                        )

                                    Submitted February 19, 2014
                                       Decided April 7, 2014

Seth H. Yeager, Esquire, Attorney for Plaintiff
Defendant Linda M. Kelly, pro se


    DECISION ON APPEAL FROM COMMISSIONER’S RECOMMENDATION

       Capital     One       Bank   (USA),   N.A.,    (hereinafter   “Plaintiff”)   appeals   the

Commissioner’s Proposed Findings of Fact and Recommendation (hereinafter

“Recommendation”) on its Motion for Summary Judgment in favor of Linda M. Kelly

(hereinafter “Defendant”). Following a careful review of the record and submissions by

the parties, the Court rejects the Commissioner’s Recommendation for the reasons set

forth herein.
                                         Procedural History

        Plaintiff initiated the above-docketed breach of contract action against

Defendant, on April 1, 2013, seeking to collect a credit card debt in the principal amount

of $6,716.21.1 On May, 28, 2013, Defendant filed an Answer generally denying the debt

with attached exhibits.

        On July 11, 2013, Plaintiff filed its Motion for Summary Judgment. The hearing

was initially scheduled for September 5, 2013. Defendant was promptly mailed notice

thereof. On August 4, 2013, the Court requested a continuance on the matter.2 On

September 10, 2013, Defendant was noticed of the rescheduled motion. Despite the

advanced notice of nearly two months, Defendant failed to attend the November 7, 2013

motion hearing. Additionally, Defendant failed to contact the Court regarding her

absence or otherwise respond to Plaintiff’s motion.

        At the November 7, 2013 hearing, Plaintiff argued the merits of the summary

judgment motion in lieu of requesting a judgment for default which the Court would

have entertained. Thereupon, Commissioner reserved decision. Two months later, on

January 13, 2014, the Commissioner issued a report recommending that Plaintiff’s

Motion for Summary Judgment be denied. Plaintiff filed its timely appeal of the

1 It should be noted that Plaintiff’s caption does not comply with our Court’s guidelines as promulgated
in Administrative Directive 2012-2. Defendant has not raised this issue, and the Court will not address it,
sua sponte, at this stage in the proceedings.
2 Per the docket, Defendant was notified of the continuance by phone.
Commissioner’s Recommendation on January 22, 2014. Defendant has not responded

to the appeal.

                                           Standard of Review

          Summary judgment is a case-dispositive determination. When reviewing a

commissioner’s recommendation on a case-dispositive determination, the judge reviews

the decision de novo. A judge may accept, reject, or modify in whole or in part the

findings or recommendations made by a commissioner.3

                                                 Discussion

        In reviewing a motion for summary judgment: the court must be mindful; the

court should proceed with caution; and the court “may [ ] deny summary judgment in a

case where there is a reason to believe that the better course would be to proceed to a

full trial.”4 Herein, there is no reason to conclude that proceeding to a full trial is the

better course.

        Court of Common Pleas Civil Rule 56(c) states, in pertinent part, that,“[t]he

judgment sought shall be rendered forthwith if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law.”5



3 Ct. Com. Pl. Civ. R. 112(A)(4)(iv).
4 Cerberus Int'l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1150 (Del. 2002).
5 Id.
        The moving party bears the initial burden of showing the absence of a genuine

issue of material fact. 6 In the case sub judice, Plaintiff’s motion is properly supported by

competent and admissible evidence. Plaintiff’s notarized affidavit swears to

Defendant’s default and the amount in controversy. The account statements evidence

the sum claimed and account delinquency. The Capital One Customer Agreement

evidences the parties’ contract. Moreover, the certification of the motion by Plaintiff’s

attorney attests to the veracity of his client’s claim.7 Based on these filings, the Court

finds that Plaintiff has met its initial burden.

        Such a showing by the moving party does not end the Court’s inquiry. Rather, if

the moving party’s motion is properly supported, as it is here, the burden shifts to the

non-moving or adverse party to demonstrate a genuine issue of material fact.8 Court of

Common Pleas Rule 56(c) states, in pertinent part, that “an adverse party may not rest

upon the mere allegations or denials of the adverse party’s pleadings, but the adverse

party’s response, by affidavit or as otherwise provided in this Rule, must set forth

specific facts showing that there is a genuine issue for trial. If the adverse party does not




6 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
7 The Court finds the Superior Court’s decision, In re Asbestos Litigation, 1994 WL 721774 (November 4,
1994) (Gebelein, J.), to be instructive on this matter. “By the certification of defendant’s attorney, the
Court holds that defendant-movant has ‘pointed out’ to the Court the non-existence of a genuine issue for
trial. The Court has little cause to doubt the certification made by counsel. He is an officer of the court
and as such, charged with the duty of candor to the Court. If a certification is made in bad faith, the Court
may, sua sponte or upon motion by the adverse party, impose sanctions against the attorney.” Id. at *2.
8 Moore, 405 A.2d at 680.
so respond, summary judgment, if appropriate, shall be entered against the adverse

party.”9

          It bears repeating that Defendant, who bore the burden, failed to respond to the

motion. Further, Defendant failed to attend the motion hearing, failed to contact the

Court regarding her absence and failed to respond to Plaintiff’s appeal. Based upon

Defendant’s apparent refusal to defend herself in this action, the Court is inclined to

find that Defendant has abandoned her defense and to consider the facts as stated in

Plaintiff’s motion as undisputed.10

          Nevertheless, the Court will review Defendant’s only submission to the Court to

ensure that no genuine issue of material fact exists. Defendant’s May 28, 2013 Answer to

the Complaint generally denies the claim. Attached to the Answer are six exhibits

which Defendant did not support with any argument or explanation as to how or why

the documents are relevant.11



9   Id.
10   The Court notes that pursuant to the federal summary judgment rule, “if a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may…consider the fact undisputed for purposes of the motion [and] grant summary
judgment if the motion and supporting materials — including the facts considered undisputed — show
that the movant is entitled to it.” Fed. R. Civ. P. 56(e).
11
     Defendant’s exhibits include the following documents:
          1.   Defendant’s paystub for the pay period ending January 29, 2011. In her list of exhibits
               Defendant identifies this as her “last paycheck”;
          2.   Capital One statement showing payment for protection plan dated January 21, 2012;
          3.   Letter to Defendant denying request for coverage under the payment plan dated March 15,
               2012;
          4.   Permanent Disability Benefit Activation Form dated December 15, 2012;
        In viewing the exhibits in the light most favorable to Defendant, the Court infers

that upon filing her Answer, Defendant believed that she was entitled to coverage

under a payment protection plan which would make payments on the account in the

event of unemployment or disability. The record reflects that Defendant applied for

coverage under the plan twice and was denied both times.12 Defendant’s first

application for protection was denied because the date of loss pre-dated her purchase of

the protection plan.13 As to her second application for benefits, Defendant was denied

because the protection plan lapsed when her account became delinquent.14

        Defendant’s exhibits show that she paid for and, then, applied for payment

protection under conditions that were outside the protection plan. Although this

occurrence may confuse or frustrate the Defendant, it by no means demonstrates the

need for a trial. Moreover, the Court will not draw unreasonable or unfounded

inferences from the evidence in favor of the Defendant.15



        5.   Letter to Defendant denying request for coverage under the payment plan dated January 23,
             2013; and
        6.   The Payment Protection Agreement between the parties.
12 See Defendant’s Exhibits “3” and “5”.
13 Defendant became unemployed a full year before the protection plan was in effect. See Defendant’s
Exhibits “1” and “3”.
14 The protection plan policy lapsed after Defendant failed to make payment on her account for several

months. See Defendant’s Exhibits “4” and “5”; See also Exhibit “B” of Plaintiff’s Motion for Summary
Judgment, dated July 11, 2013.
15 “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury


to return a verdict for that party…If the evidence is merely colorable, or is not significantly probative,
summary judgment may be granted. We similarly have explained that we will not draw “unreasonable
inferences” in the nonmoving party's favor. Health Solutions Network, LLC v. Grigorov, 12 A.3d 1154 (Del.
2011)(citations and quotations omitted).
           While the Court appreciates the challenges that Defendant faces in representing

herself in this action, those challenges are far from insurmountable and cannot justify

Defendant’s failure to participate in the litigation process. “All judges are sympathetic

to the problems faced by pro se litigants. But the problems and perils faced by pro se

litigants [do] not mean that a separate set of rules should be applied when a person is

not represented by an attorney.”16

           Upon de novo review, the Court finds that the record demonstrates that no

genuine issue of material fact exists and Plaintiff is entitled to summary judgment as a

matter of law. Therefore, Plaintiff’s Appeal from Commissioner’s Findings of Fact and

Recommendation is GRANTED. Plaintiff is awarded its full damage claim of $6,716.21

and post-judgment interest at the legal rate.

           IT IS SO ORDERED this 7th day of April, 2014.




                                                              ___________________________________
                                                              The Honorable Rosemary B. Beauregard




16   LaBarge v. Hensley, 2006 WL 306925 (Del. Super. 2006).
