         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. CPU6-13-000330
                                                           )
                                                           )
                                                           )
DIANA M. SCHOENBERGER                                      )
                                                           )
                 Defendant,                                )

                                        Submitted February 19, 2014
                                           Decided April 1, 2014

Seth H. Yeager, Esquire, Attorney for Plaintiff
Defendant Diana M. Schoenberger, pro se



        DECISION ON APPEAL FROM COMMISSIONER’S RECOMMENDATION

        For the reasons discussed below, the Plaintiff’s Appeal from the Commissioner’s

Findings of Fact and Recommendation is GRANTED.

                                           Procedural History

        On March 28, 2013, Plaintiff Capital One Bank filed this debt action against

Defendant Diana M. Schoenberger seeking a principal amount of $1,419.86 and post-

judgment interest on a defaulted credit card account.1 On July 10, 2013, Defendant filed

a handwritten letter acknowledging personal liability on the debt while expressing some

confusion as the total damage award requested by Plaintiff.

        On August 14, 2013, Plaintiff filed its Motion for Summary Judgment. A hearing

was scheduled for September 5, 2013, but was ultimately continued until November 7,

1
  The Court notes that the caption of the complaint does not comply with the guidelines promulgated in
Administrative Directive 2012-2. This issue was not raised by Defendant, and the Court will not address it sua
sponte at this stage in the proceedings.
2013. Defendant was mailed notice of this second hearing on September 10, 2013.

Despite ample notice of the motion and hearing date, Defendant failed to appear for this

hearing or to otherwise respond to Plaintiff’s motion.2 Plaintiff’s counsel appeared and

argued the merits; the Commissioner reserved decision. On January 13, 2014, the

Commissioner issued a report recommending that Plaintiff’s Motion for Summary

Judgment be granted in part, limiting Plaintiff’s judgment to $649.19, the unpaid

balance that Defendant admitted owing in her letter.3 The remaining damage request

was denied without direction for further just proceedings as required pursuant to Court

of Common Pleas Rule 56(d). On January 22, 2014, Plaintiff appealed the

Commissioner’s Recommendation.

                                             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.4

                                                   Discussion

         In reviewing a motion for summary judgment: 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.”5 However, there is no reason to believe that proceeding to a full

trial is the better course in this instance.

         Under Civil Rule 56, summary judgment is appropriate when the record

demonstrates that “there is no genuine issue as to any material fact and that the moving

2
  The record reflects that Defendant was notified in August, 2013 of the motion and first hearing date. Likewise, the
Defendant was re-noticed in September, 2013, of the November 7, 2013 motion hearing date.
3
  See Defendant’s letter to the Court dated July 10, 2014.
4
  Ct. Com. Pl. Civ. R. 112(A)(4)(iv).
5
  Cerberus Int'l, Ltd. v. Apollo Mgmt., L.P., 794 A.2d 1141, 1150 (Del. 2002).
party is entitled to a judgment as a matter of law.”6 If a genuine material issue of fact

exists, summary judgment is inappropriate.7 A fact is material if it “might affect the

outcome of the suit.”8 A genuine issue of material fact is present “if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party.”9 “[T]he facts of

record, including any reasonable inferences therefrom, must be viewed in a light most

favorable to the non-moving party.”10

           In reviewing a motion for summary judgment, the Court’s responsibility is not to

determine the truth of the matter at hand, but to resolve whether a genuine material

issue of fact exists.11 The moving party bears the initial burden to show the absence of

any material factual issues.12 Upon a proper showing, the burden shifts to the non-

moving party who may not rely solely upon her pleadings, but must show a genuine

material issue of fact in response to the motion.13

           The Court finds that Plaintiff met its initial burden.                     The Motion is properly

supported by competent and admissible evidence, including: the agreement between the

parties, Plaintiff’s notarized affidavits that attest to the debt owed by Defendant, copies

of the account statements and certification of Plaintiff’s attorney as to the veracity of his

client’s claim.14 In stark contrast, Defendant failed to file any response to the motion,


6
    Ct. Com. Pl. Civ. R. 56(c).
7
    Cerberus, 794 A.2d at 1150.

8
  Graven v. Lucero, 2013 WL 6797566 *2 (Del. Ch. Dec. 20, 2013).
9
  Id.
10
   Health Solutions Network, LLC v. Grigorov, 12 A.3d 1154 (Del. 2011) (emphasis added).
11
   Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510 (1986)(citations and quotations
omitted).
12
   See Ct. Com. Pl. Civ. R. 56(c); See also In re Asbestos Litigation, supra.
13
   See Ct. Com. Pl. Civ. R. 56(c); See also In re Asbestos Litigation, supra.
14
   See, In re Asbestos Litigation, 1994 WL 721774 (November 4, 1994, Gebelein, J.). “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.
and failed to appear at the hearing of the motion. She likewise has failed to respond to

this appeal of the Commissioner’s Recommendation. When it is clear from the record

that a party has received notice of a motion, and the party then fails to file a response to

the motion or to appear at the hearing, the plain conclusion for the Court is that the

motion is unopposed. Given the Court’s obligation to efficiently administer its caseload

and handle the public’s work, properly filed, prima facie supported and unopposed

motions within the Court’s jurisdiction are, and should be, routinely granted.15

        Nevertheless, here the Commissioner concluded that questions remain regarding

the extent of Defendant’s liability. To support this finding, the Commissioner did not

cite to any defect or ambiguity in the Plaintiff’s filings, or any facts properly claimed at

issue by the Defendant in response to the Motion. Rather, the recommendation to move

forward with litigation appears to be based on assertions found in Defendant’s July 10,

2013 letter filed in lieu of a conforming answer. Such a finding is inconsistent with our

Rule 56 and relevant caselaw.

        Under Civil Rule 56(c), “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 so respond, summary judgment, if

appropriate, shall be entered against the adverse party.”16

        Again, Defendant here did not respond in any way to the motion, let alone with a

supporting affidavit. The adverse party’s “bare assertions or conclusory allegations are




15
   Of course, the Court may grant a subsequent motion for reconsideration or to reopen if supported by a valid Rule
60(b) explanation.
16
   Ct. Com. Pl. Civ. R. 56(c) (emphasis added).
insufficient to create a genuine issue of material fact for trial.”17 Defendant’s vague

questioning of the full amount claimed in her only correspondence with the Court is

insufficient to show a genuine issue of material fact absent some evidentiary showing by

the Defendant.18 In that July 10, 2013 hand-written letter Defendant states, “I know I

owe this bill. I am not denying the bill but I received the outstanding balance June 5,

2013 as [$]649.14. Don’t understand the balance jumping to $1,419.86. . . . Hope this

can be resolved without the courts.”

        Defendant’s unsworn statement that she “do[esn’t] understand” how Plaintiff

arrived at the balance due fails to rise even to the level of a “bare assertion or

conclusory allegation,” let alone a specific fact supported by affidavit.                                   The

Commissioner erred in finding such a statement sufficient to establish a genuine issue

of fact, even if it was entitled to be viewed in the light most favorable to the Defendant.

        Although the Court is mindful that Defendant represents herself in this action,

the Court cannot excuse Defendant’s failure to participate in the litigation process or to

present a meaningful defense because of her status as a pro se litigant. Defendant must

defend herself in this action, the Court cannot do so; it must impartially apply the laws

and rules.      Plaintiff’s motion and affidavit showed an absence of material fact; the

burden then shifted to Defendant to respond and show a genuine issue of material fact.

The Court cannot lift that burden for her. “All judges are sympathetic to the problems



17
   Health Solutions Network, LLC v. Grigorov, 12 A.3d 1154 (Del. 2011) quoting Celotex Corp. v. Catrett, 477 U.S.
317, 324, 106 S. Ct. 2548, 2553 (1986).
18
   See, e.g., the Delaware Supreme Court’s recent de novo review of the summary judgment order in the analogous
case of Health Solutions Network, LLC, v. Grigorov, supra.. The underlying breach of contract action involved the
recovery of sales commissions due to Grigorov as administrator of his son’s estate. The trial court granted
Grigorov’s Motion for Summary Judgment, in part, because Health Solutions solely evidenced its claim with the
deposition testimony of a witness who denied the debt and professed payment but failed to produce any record
indicating payment. The Supreme Court found that the trial court shifted the evidentiary burdens appropriately,
weighed the evidence accurately and properly determined that Health Solutions failed to make a sufficient showing
to defeat the summary judgment motion.
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.”19

        Summary judgment is an integral part of our civil procedural rules designed “to

secure the just, speedy, and inexpensive determination in every action.”20 The summary

judgment rule “should be interpreted in a way that allows it to accomplish this

purpose.”21

        In light of the foregoing, the Court finds after its de novo review of this matter

that there is no evidence to support the finding of a genuine issue of material fact, and

that Plaintiff is entitled to summary judgment on its unopposed motion for the full

amount of damages claimed as a matter of law.

        Plaintiff’s      Appeal      from      the     Commissioner’s           Findings       of    Fact     and

Recommendation is GRANTED.                        Plaintiff’s motion for Summary Judgment is

GRANTED. Plaintiff is awarded its full damage claim of $1,419.86, plus post-judgment

interest at the rate of 5.75% per annum, plus costs of suit.

        IT IS SO ORDERED this 1st day of April, 2014.




                                                             _____________________________________
                                                                Kenneth S. Clark, Jr., Judge




19
   LaBarge v. Hensley, 2006 WL 306925 (Del. Super. 2006).
20
   Celotex, 477 U.S. at 327, 106 S.Ct. at 2555. (citations omitted); See also Hoag v. Amex Assurance Co., 953 A.2d
713, 717 (Del. 2008); Bader v. Fisher, 504 A.2d 1091, 1096 (Del. 1986); Holt v. Holt, 472 A.2d 820, 824 (Del.
1984).
21
   In re Asbestos Litigation, supra, quoting Celotex 477 U.S. at 324, 106 S. Ct. at 2553.
