IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BAYVIEW LGAN SERVICING LLC, )
)

Plaintiff, )

v. ) C.A. No. Nl6L-01-070 ALR

)

JACQUELINE EDWARDS A/K/A )
JACQUELINE A. EDWARDS, )
)

Defendant. )

M

Upon Plaintiffs Motion for Summary Judgment
GRANTED

Submitted: December 20, 2016
Decided: March l3, 2017

This is a mortgage foreclosure case. Upon consideration of the Motion for
Summary Judgment filed by Plaintiff Bayview Loan Servicing LLC (“Plaintiff’);
the Response in Opposition filed by Defendant Jacqueline EdWards (“Defendant”);
the Superior Court Civil Rules; the facts, arguments, and authorities set forth by
the parties; statutory and decisional laW; and the entire record in this case, the
Court hereby finds as folloWs:

l. On March 7, 2006, Defendant executed and delivered a valid
Mortgage and Note to CitiFinancial, Inc. for property located in Wilmington,
Delaware. The Mortgage permits the Mortgage holder to foreclose on the property

upon Defendant’s failure to make timely payments pursuant to the Mortgage.

2. Defendant defaulted under the Mortgage by failing to pay required
monthly installments when due. Plaintiff demanded Defendant’s payment and
advised Defendant of Plaintiff`s intent to accelerate the balance of the Mortgage if
arrearages Were not paid.

3. On January 18, 2016, CitiFinancial Servicing LLC initiated this
foreclosure action seeking entry of judgment against Defendant for the principal
sum owed on the Mortgage after Defendant failed to cure her default The
Mortgage is attached to CitiFinancial Servicing LLC’s Complaint as “Exhibit A.”
Service of process was effected on Defendant.

4. On May 3, 2016, Defendant filed a Motion to Dismiss CitiFinancial
Servicing LLC’s complaint On May 26, 2016, Plaintiff filed a Response in
Opposition to Defendant’s Motion to Dismiss and a Motion to Substitute Parties
and Amend Complaint.

5. On June 7, 2016, this Court held a hearing regarding Defendant’s
Motion to Dismiss. During the June 7 hearing, Defendant represented to the Court
that Plaintiff had engaged in self-help during the foreclosure process. Specifically,
Defendant alleged that the property was entered without authorization and that the
front door locks were changed. Plaintiff conceded that self-help is not an available
remedy under Delaware law. The Court provided Defendant an opportunity to

conduct discovery regarding her self-help claim.

6. By Order dated June 8, 2016, this Court granted Plaintiff’s Motion to
Substitute Parties and Amend Complaint, and denied Defendant’s Motion to
Dismiss.

7. On June 21, 2016, Plaintiff filed an Amended Complaint against
Defendant. On July 7, 2016, service of process was effected on Defendant.

8. On June 28, 2016, Defendant docketed photographs of a padlock on
the front door of the property, a notice placed on the window, a warning that the
property had been “winterized” by disconnecting the Water meter, and a
photograph of the kitchen sink at which the water had been shut off. Upon
consideration of this evidence, this Court issued a Rule to Show Cause requesting
Plaintiff to show cause as to why sanctions should not be imposed for engaging in
improper self-help during the mortgage foreclosure process.

9. On July 2l, 2016, the Court held a hearing regarding the Rule to
Show Cause. Plaintiff established that Defendant had failed to participate in the
mortgage mediation process and that foreclosure of the property could proceed.
This Court discharged the Rule to Show Cause and ordered Defendant to file an
answer to Plaintiff’s Amended Complaint Within 20 days from the July 2l hearing,

10. On August 10, 2016, Defendant filed an Answer to Plaintiff`s
Amended Complaint and raised an affirmative defense of lack of standing

Defendant argues that (l) Plaintiff fails to establish that Plaintiff is the proper party

in interest to the Mortgage with authority to commence foreclosure proceedings;
(2) Plaintiff failed to properly verify and validate Defendant’s debt; and (3) the
Note and Mortgage are separate, rendering the Mortgage void and unenforceable
as a matter of law.

ll. On October ll, 2016, Plaintiff filed the Motion for Summary
Judgment that is currently before the Court. Plaintiff asserts that (l) the Mortgage
is valid and enforceable as a matter of law; (2) Plaintiff has established that
Plaintiff is the proper party in interest to the Mortgage and that Defendant is in
default; (3) Plaintiff properly verified Defendant’s debt; (4) Defendant fails to
assert an allowable defense for a mortgage foreclosure action; and (5) Defendant’s
allegations are unsupported by factual evidence. Plaintiff contends that there are
no genuine issues of material fact and that judgment as a matter of law is
appropriate

l2. Subject to the extensions of time granted by the Court, on December
20, 2016, Defendant filed a response in opposition to Plaintiff’s Motion for
Summary Judgment.

l3. The Court may grant summary judgment only where the moving party
can “show that there is no genuine issue as to any material fact and that the moving

l

party is entitled to judgment as a matter of law.” The moving party bears the

 

l Super. Ct. Civ. R. 56(c).

initial burden of proof and, once that is met, the burden shifts to the non-moving
party to show that a material issue of fact exists.2 At the motion for summary
judgment phase, the Court must view the facts “in the light most favorable to the
non-moving party.”3

l4. Upon a mortgagor’s breach of a mortgage, Delaware law permits “the
mortgagee, the mortgagee’s heirs, executors, administrators, successors, or
assigns” to institute foreclosure proceedings in Superior Court.4

15. “An assignment of a mortgage or any sealed instrument attested by
[one] creditable Witness shall be valid and effectual to convey all the right and
interests of the assignor.”5 In this case, a valid and notarized Notice of Assignment
of the Mortgage from CitiFinancial, Inc. to CitiFinancial Servicing LLC, executed
August 12, 2015, and recorded on August 25, 2015, is included as part of “Exhibit
A” to Plaintiff" s Amended Complaint. Additionally, a valid and notarized Notice
of Assignment of the Mortgage from CitiFinancial Servicing LLC to Plaintiff,

executed March 3l, 2016, and recorded on April ll, 2016, is also included as part

of “Exhibit A” to Plaintiff’s Amended Complaint. Defendant has not presented

 

2 Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).
3 Brozka v. Olson, 668 A.2d 1355, 1364 (Del. l995).

4 10 Del. c. § 5061(3).

5 25 Del. c. § 2109(3).

credible evidence to call the validity of these Mortgage assignments into question,6
and the assignments meet the requirements set forth under Delaware law. This
Court is satisfied that Plaintiff is the proper party in interest and has standing to
bring this action as a valid assignee of the Mortgage.

16. Defendant asserts that Plaintiff failed to properly verify and validate
Defendant’s debt in response to Defendant’s notice of dispute. However, by letter
dated May l2, 2016, Plaintiff responded to Defendant’s notice of dispute by
providing documentation establishing the validity of Defendant’s debt and
Plaintiff’ s authority to institute foreclosure proceedings7 Plaintist May 12, 2016
letter is included as “Exhibit C” to Defendant’s Answer to Plaintiff’s Amended
Complaint. Furthermore, by letter dated June 13, 2016, Plaintiff responded to
Defendant’s requests for production by providing additional copies of the same

documents evidencing the validity of Defendant’s debt. Plaintiff` s June 13, 2016

 

6 See Kennea'y v. Giannone, 1987 WL 37799, at *l (Del. June 16, 1987) (“Mere
denials in his pleadings . . . are insufficient under Rule 56 to oppose a motion for
summary judgment Similarly the unsupported conclusory denials . . . do not
constitute admissible factual evidence, and hence cannot be relied upon to raise a
genuine issue of material fact.”); Martin v. Nealis Motors, Inc., 247 A.2d 831, 833
(Del. 1968) (“Unverified allegations in the complaint do not suffice as substitute
for evidence to preclude summary judgment . . . .”); Fea’. Nat’l Mortg. Ass’n
(“FNMA”) v. Graham, 2015 WL 6437621, at *3 (Del. Super. Oct. 22, 2015)
(“Unfortunately for Plaintiff, the law is clear that an unsupported defense, does not,
by itself, raise a genuine issue of material fact.”).

7 The documents include account activity statements, notices of transfer, the
Mortgage, the Mortgage Assignments, the Note, a HUD Settlement Statement, a
good faith estimate, a notice of default, and a notice of intent to accelerate.

6

letter is included as “Exhibit C” to Defendant’s Response in Opposition to
Plaintiff`s Motion for Summary Judgment. This Court finds that Plaintiff properly
responded to Defendant’s notice of dispute and has provided the necessary
documentation to verify Defendant’s debt.

17. Defendant asserts that the Mortgage is void as a matter of law because
the Mortgage is separate from the Note. However, Delaware decisional law
reflects that “scz're facias sur mortgage actions are based upon the mortgage, not
the Note.”8 Although a note and its related mortgage are typically held by the
same entity, the documents confer separate rights and obligations and may be
freely transferred as individual instruments9 “As such, it is irrelevant who owns or
has interest in the note or mortgage as long as it does not affect the debtor’s ability
to make payments.”lo Contrary to Defendant’s contention, the fact that the Note
and Mortgage are separate does not render the Mortgage void and unenforceable as

a matter of law.

 

8 M&T Bank v. Watkins, 2016 WL 4123903, at *2 (Del. Super. July 29, 2016)
(quoting HSBC Mortg. Corp. (USA) v. Bendfela't, 2014 WL 600233, at *2 (Del.
Super. Feb. 4, 2014)). See also Bank of N.Y. Mellon v. Shrewsbury, 2016 WL
3010187, at *2 (Del. Super. May 18, 2016) (“Defendants fail to demonstrate that
the Court has overlooked a controlling precedent or legal principles . . . based on
their unsupported, repetitive, and similarly unavailing argument that Delaware law
requires a mortgagee hold both the note and the mortgage in order to bring a
mortgage foreclosure action under 10 Del. C. § 5061(a).”).

9 Tolle v. Greenpoint Mortg. Funa’ing, Inc., 2015 WL 5158276, at *2 (Del. Super.
Apr. 20, 2015); Davis v. 913 N. Mkl. St. P’ship, 1996 WL 769326, at *1 (Del.
Super. Dec. 12, 1996).

10 TOlle, 2015 wL 5158276, at *2.

18. Permissible defenses in a mortgage foreclosure action are limited to
defenses that relate to the mortgagor’s obligations under the mortgagell
Defendant’s available defenses are “limited to payment, satisfaction, absence of
seal, or a plea in avoidance of the deed.”12 This Court agrees with Plaintiff that
Defendant fails to set forth specific facts and credible evidence to create a genuine
issue of material fact or support an allowable defense in this action. Accordingly,
summary judgment is appropriate13

NOW, THEREFORE, this 13th day of March, 2017, Plaintiff’s Motion
for Summary Judgment is hereby GRANTED.

IT IS SO ORDERED.

/?lnc[rea L. Rocanelfi

 

The Honorable Andrea L. Rocanelli

 

11 Legg v. Na¢ionsmr Mor¢g. LLC, 2017 WL 568346, at *2 (Del. Feb. 6, 2017);
McCa/‘Yerty v. Wells Fargo Bank, N.A., 2014 WL 7010781, at *3 (Del. Dec. 8,

2014).
12 Bmoks v. BAC Home Loans serv., LP, 2012 wL 3637238, at *2 n.11 (Del. Aug.

23, 2012) (quoting Gora'y v. Preform Bla'g. Components, Inc., 310 A.2d 893, 895

(Del. Super. 1973)).
11 see Wells Fargo Bank, NA v. Nickel, 2011 wL 6000787, at *2 (Del. super. Nov.

18, 2011).

