       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


 DELAWARE STATE HOUSING                     )   C.A. No. N15L-12-074 CLS
 AUTHORITY,                                 )
                                            )   Tax Parcel No. 073540234
       Plaintiff,                           )
                                            )   Sci. Fa. Sur Mortgage Action
              v.                            )
                                            )   Mortgage Instrument
 MICHELLE R. IEVOLI,                        )   20011217-0106929
                                            )   Assignment Instrument
       Defendant.                           )   20011217-0106930
                                            )
                                            )




                          Date Submitted: July 26, 2018
                           Date Decided: July 31, 2018


        On Defendant Michelle R. Ievoli’s Request for Continuance of Stay
                              On Writ of Possession
                                    DENIED.


                                    OPINION


Chase N. Miller, Esquire, McCabe, Weisberg & Conway, P.C., 1407 Foulk Road,
Suite 102, Wilmington, Delaware, 19803. Attorney for Plaintiff.


Michelle R. Ievoli, pro se Defendant.


Scott, J.
                                        1
         This action arises from a scire facias sur mortgage action. Plaintiff Delaware

State Housing Authority (DSHA) filed the action against Michelle Ievoli (Ievoli) in

2015. The property was sold at Sheriff’s Sale in December 2017.

                          Facts and Procedural Background

         The facts pertinent to Defendant’s request are as follows. DSHA initiated

foreclosure on Defendant’s home in 2015. A final judgment in favor of DSHA was

entered in this action on September 25, 2017. Ievoli did not appeal that judgment.

A Sheriff’s Sale of the home was completed in December 2017 and confirmed in

January 2018. DSHA was the winning bidder at the sale, and the Sheriff’s Deed was

recorded in February 2018. DSHA then sought and was granted a Writ of Possession

on May 29, 2018, with no action to be taken for 60 days. Also on May 29, 2018,

Ievoli filed a pro se complaint in this Court claiming Negligence on the part of

DSHA related to the mortgage of the property.1 At the same time of filing the

complaint Ievoli requested a stay on the writ of possession. This request was denied.

Ievoli’s Negligence action seeks monetary damages including lost wages, medical

bills, damage to her creditworthiness, and legal costs.2




1
    Citations to the complaint infra refer to this pro se complaint.
2
    Compl. at 6.
                                              2
                                     Parties Assertions

        Ievoli filed this emergency request seeking a continuance of the stay on the

Writ of Possession pending adjudication of a negligence action. Ievoli’s civil suit

alleges DSHA was negligent in its selection and supervision of Bank of America

(BOA) as a mortgaging servicer. Ievoli highlights newspaper articles and judgments

against BOA as proof DSHA had notice of questionable practices ongoing with

BOA’s mortgage business. Ievoli asserts that DSHA owed a duty to “stop ongoing

illegal actions.”3 Ievoli’s complaint, in brief, seeks to hold DSHA liable for the

actions of its subcontractor BOA.4

        DSHA argues the Court has previously denied a stay on this Writ of

Possession. DSHA urges that under the four-prong test adopted by this Court and

the Delaware Supreme Court Ievoli’s motion fails and should be denied. DSHA

argues there is little chance of success on the merits for Ievoli’s complaint. DSHA

argues that Ievoli’s complaint is procedurally barred by the statute of limitations, res

judicata, and collateral estoppel. As to the merits of the complaint, DSHA argues

Ievoli’s complaint fails to show DSHA owed a duty of care to Ievoli.




3
    Compl. at 2.
4
    Id.
                                           3
      DSHA urges that as the complaint seeks only monetary damages there is no

chance of irrevocable injury should the stay be denied. DSHA points to the final

adjudication of this matter as evidence Ievoli will not be injured. DSHA claims they

are now the owners of the property, and as such they are entitled to possession.

DSHA argues that even if successful on the merits, Ievoli’s award would be

monetary and independent from the result of this action.

      DSHA claims they will continue to suffer substantial harm if the stay is

granted. DSHA indicates they continue to be financially liable for the home as Ievoli

has not made payments since 2015.

      DSHA finally argues that public interest will be harmed if the stay is granted.

DSHA urges that the public is best served by speedy resolution of title and

possession issues. DSHA urges that lingering property disputes often result in blight

and other negative community impacts.

                                   Standard of Review

      Ievoli’s motion is not an appeal from the judgment in the foreclosure action,

but rather seeks to stay further proceedings pending the outcome of a new action.

However, the Court finds the stay pending appeal standard of review to be relevant

to the instant case.




                                         4
      In determining whether to stay a decision pending appeal this Court and the

Delaware Supreme Court have adopted the four-prong test utilized in Evans v.

Buchanan.5 The test requires the Court “(1) to make a preliminary assessment of

likelihood of success on the merits of the appeal; (2) to assess whether the petitioner

will suffer irreparable injury if the stay is not granted; (3) to assess whether any other

interested party will suffer substantial harm if the stay is granted; and (4) to

determine whether the public interest will be harmed if the stay is granted.”6 The

Court must analyze all four prongs of the test in determining whether to grant a stay.7

                                           Analysis

      Likelihood of success of Ievoli’s negligence action

      In her complaint Ievoli claims one ground for relief, negligence. The Court

must first review any procedural bars to Ievoli’s action before reviewing the merits

of her case. Based on the complaint, and reviewing the complaint in light most

favorable to Ievoli, the Court in finds 10 Del. C. §8106 to be applicable. Under the

statute “no action based on a detailed statement of the mutual demands in the nature

of debit and credit between parties arising out of contractual or fiduciary relations,




5
  Evans v. Buchanan, 435 F.Supp. 832, 841–42 (D.Del.1977).
6
  Kirpat, Inc. v. Delaware Alcoholic Beverage Control Comm'n, 741 A.2d 356, 357
(Del. 1998).
7
  Id.
                                         5
[…] shall be brought after the expiration of 3 years from the accruing of the cause

of such action.”8

        Ievoli’s complaint alleges actions dating from 2012 through November of

2014 constituted negligence on the part of DSHA. 9 The three year statute of

limitations would require any action brought under the contract between Ievoli and

DSHA to be brought before November 2017. Without making a final judgment on

the negligence action it appears that the complaint is procedurally barred by the

statute of limitations.

        Moving to the merits of Ievoli’s claim of whether DSHA should be held liable

for the actions of its subcontractor, the Court must determine if a duty was owed to

Ievoli. Ievoli’s negligence complaint appears to rely on either the doctrine of

respondeat superior or negligent hiring and supervision. Under respondeat superior,

an employer can be held liable for the negligent actions of his employee. Similarly,

under a theory of negligent hiring and supervision “the employer is negligent in

giving improper or ambiguous orders or in failing to make proper regulations, or in

the employment of improper persons involving risk of harm to others, or in the




8
    10 Del. C. § 8106.
9
    See generally Compl.
                                          6
supervision of the employee's activity.”10 To succeed on either of these theories it

is necessary to conclude that BOA was an agent under the direct control of DSHA.

      If a party is subjected to only general control and direction under a contract,

that party is generally deemed to be an independent contractor. 11           Delaware

recognizes the general rule that a “contractee will not be held liable for the torts of

an independent contractor which are committed in the performance of the contracted

work.”12 However, if the “contractee retains control over the activities of an

independent contractor, the owner or contractee will be held liable for the torts of

the independent contractor.”13

      The Court is not persuaded that Ievoli’s claim will be successful. Without

deciding the merits of Ievoli’s complaint, the case as presented in the complaint is

not likely to be successful in holding DSHA liable for failing to oversee BOA.




10
   Simms v. Christina Sch. Dist., 2004 WL 344015, at *8 (Del. Super. Ct. Jan. 30,
2004).
11
   Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997).
12
   Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997).
13
   Id.
                                         7
      Possibility of irreparable injury if the stay is not granted

      In reviewing the possibility of irreparable injury, the Court reviews the record

in this case and Ievoli’s complaint. DSHA is the legal owner of the home. Ievoli

remains in possession of the home.

      Ievoli’s complaint seeks an award of monetary damages from DSHA, it is not

an appeal of the foreclosure for which a final judgment has been made. Ievoli may

feel that the loss of the home would be an irreparable injury, but allowing DSHA to

take possession of the property does not preclude Ievoli from pursuing the

negligence suit.

      Possibility of harm to DSHA and the public

      DSHA argues that Ievoli has resided on the property since June 1, 2015,

without making payments. DSHA claims they remain financially liable for the

property including paying taxes and insurance. To allow Ievoli to reside on the

premises would continue to harm DSHA by requiring them to remain liable for the

property.

      The scire facias sur mortgage process provides an opportunity for the parties

to litigate many of the issues presented in Ievoli’s negligence complaint. This

process requires the mortgagor “appear before the Court to show cause, if there is

any, why the mortgaged premises ought not to be seized and taken in execution for

                                          8
payment of the mortgage money with interest[.]”14 That process is now complete,

and this Court has entered Judgment in favor of DSHA. Ievoli’s negligence

complaint cannot now serve to show cause why the property ought not be delivered

into the possession of DSHA. The public interest requires this Court to adhere to

the statutory process and judicial precedent.

                                        Conclusion

        The property in question has been the subject of litigation since the initial

filing of foreclosure on December 16, 2015.       The parties were each granted an

opportunity to present their case. This Court entered a final judgment in September

2017. The Court granted a Writ of Possession for the property in May of this year

with no action to be taken for 60 days. The scire facias sur mortgage action has now

come to a conclusion and Ievoli must cede possession of the property.

        Without reaching a decision in Ievoli’s negligence suit, the Court is not

convinced of the likelihood of success on the merits. Ievoli will not be subjected to

irreparable injury should DSHA take possession of the property. However, DSHA

will continue to sustain harm should Ievoli continue to occupy the home.




14
     10 Del. C. §5061.
                                          9
     For the foregoing reasons, Defendant’s Request for Continuance of Stay on

Writ of Possession is DENIED.

     IT IS SO ORDERED.



                                               /s/ Calvin L. Scott
                                               Judge Calvin L. Scott, Jr.




                                     10
